Monday, February 18, 2013

Administrative Law Judge Finds Landowner's Agricultural Activities are Exempt from Environmental Permitting

In a recent case that will interest agricultural landowners in Florida, a landowner represented himself before an administrative law judge (ALJ) an administrative hearing. In Zagame v. Department of Agriculture and Consumer Services, DOAH Case No. 12-1356 (Feb. 1, 2013), the ALJ found that the landowner's dredging of a cattle pond and removal of trash from it were exempt from environmental permitting requirements, despite a contrary binding determination by the Department of Agriculture and Consumer Services (DACS). 

In Florida, the Department of Environmental Protection (DEP) oversees the Environmental Resource Management program. This program "regulates activities involving the alteration of surface water flows. This includes new activities in uplands that generate stormwater runoff from upland construction, as well as dredging and filling in wetlands and other surface waters. Environmental Resource Permit applications are processed by either [DEP] or one of the state's water management districts, in accordance with the division of responsibilities specified in operating agreements between [DEP] and the water management districts. The Environmental Resource Permit Program is in effect throughout the State."

Certain agricultural activities, however, are exempt from the the program's requirements. Section 373.406(2), Florida Statutes, provides that:
Notwithstanding s. 403.927, nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land, including, but not limited to, activities that may impede or divert the flow of surface waters or adversely impact wetlands, for purposes consistent with the normal and customary practice of such occupation in the area. However, such alteration or activity may not be for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands. This exemption applies to lands classified as agricultural pursuant to s. 193.461 and to activities requiring an environmental resource permit pursuant to this part. This exemption does not apply to any activities previously authorized by an environmental resource permit or a management and storage of surface water permit issued pursuant to this part or a dredge and fill permit issued pursuant to chapter 403. This exemption has retroactive application to July 1, 1984.
The ALJ explained how DACS was given the authority to determine what activities qualified for an agricultural exemption:
For many years prior to 2011, [DACS] had the authority to review and give non-binding opinions at the request of a water management district concerning whether claimed alterations qualified for an agricultural exemption under section 373.406(2). However, along with other revisions in 2011, chapter 2011-165, Laws of Florida, authorized [DACS] to make binding determinations, at the request of a water management district or a landowner, regarding whether alterations or activities qualify for an exemption. See § 373.407, Fla. Stat. 
Two threshold issues for an exemption under section 373.406(2) are: (1) is the land classified as agricultural pursuant to section 193.461, Florida Statutes, and (2) is the person whose activities are in question engaged in agriculture. The parties stipulated that both of these threshold requirements were met in this case. 
The other two criteria, which are the ones at issue in this case, are whether the activity (1) is for purposes consistent with normal and customary agricultural practices for the area and (2) is not for the sole or predominant purpose of adversely impacting wetlands.
Inquiring into these two criteria, the ALJ  found that "[a]lthough the pond is larger than needed because the footprint of the dumping area was large, and Petitioner may have some non-agricultural plans for the Site in the future, under the facts and evidence as outlined herein, it is found that the pond constructed by Petitioner was for purposes consistent with common practices for cattle operations in the area." Further, it found "that the predominant purpose and effect of Petitioner’s activities was to construct a cattle pond and clean up a dumping ground, not to adversely impact a wetland." Id. at 15-6. Consequently, the ALJ recommended that DACS enter a final order finding that the landowner's agricultural activities were exempt from environmental permitting.

Under Florida's administrative law process, the Department must now issue a final order adopting, rejecting, or modifying the ALJ's recommended order. You can follow the progress here.