Florida's New Environmental Resource Permit Rules

As you may have heard, Florida environmental resource permit (ERP) process has been overhauled and streamlined with the Statewide Environmental Resource Permit (SWERP). The Florida Bar Journal recently ran a good piece on the subject, "New Environmental Resource Permit Rules," written by Susan Roeder Martin. Susan is a senior specialist attorney with the South Florida Water Management District. It's always nice to see pieces like this by agency attorneys to give those of us in private practice an insight into working with them. Ms. Martin begins with a quick backgrounder on the program:

Florida’s water resources are regulated pursuant to the Environmental Resource Permit (ERP) program under Part IV of F.S. Ch. 373. This broad regulatory program went into effect on October 3, 1995, and applies to activities that involve the alteration of surface water flows, including new activities in uplands that generate stormwater runoff from upland construction, as well as dredging and filling in wetlands and other surface waters. The program covers everything from residential and commercial development in wetlands and uplands, to construction of roads, to certain agricultural alterations that impede or divert the flow of surface waters.

ERP applications are processed by either the Department of Environmental Protection (DEP) or one of the state’s five water management districts in accordance with the division of responsibilities specified in operating agreements between DEP and the individual water management districts. The ERP program is in effect throughout the state. 

Each of the five water management districts has historically had different rules for processing ERPs. The rules of each of the water management districts were also adopted by DEP and are utilized by DEP in processing permits. While the environmental criterion was substantially the same in all the water management districts, the processing and administration varied.

The problem with ERP, though, was that this variety led to a lot of confusion and disagreements across the districts; hence the need for the SWERP. After discussing the Legislature's directive for development of the SWERP, Ms. Martin details the permit categories, statutory and rule-based exemptions, fees, and procedures. She then includes a detailed discussion of how under the new SWERP, there are still differences across the districts. The Applicant's Handbook now provides the mechanism by which the districts can differentiate their procedures:

In the pre-statewide ERP rules, each of the five water management districts’ technical criteria was set forth in a separate volume known as the applicant’s handbook (AH) or the basis of review (BOR), incorporated by reference into each water management district’s rules. Each AH or BOR was also adopted by reference by DEP. The pre-statewide ERP AHs and BORs include environmental, water quality, water quantity, and procedural criteria.

***

What was formerly referred to as the AH or BOR in each water management district is now called the Environmental Resource Permit Applicant’s Handbook Volume II for Use within the Geographic Limits of the Applicable Water Management District (AH II). AH II includes water quality and quantity design and performance standards, hydrologic basins, and regional watersheds applicable to each water management district. The retention of these provisions in the individual AH II and the retention of special basin criteria satisfies F.S. §373.4131(1)(c)2, which requires that the rules account for different physical or natural characteristics, including special basin considerations, of each water management district. AH II is not generally applicable to 1) projects that cause no more than an incidental amount of stormwater runoff, such as a single-family home up to a quadruplex, which is not part of a larger plan of development; 2) stand-alone in-water projects and shoreline stabilization type projects; 3) docks and piers; 4) activities that do not add more than a de minimis amount of impervious surface; 5) exempt activities; and 6) activities that qualify for a general permit.31

Importantly, water quality and quantity criteria from each water management districts’ AH or BOR are retained. With respect to design and performance standards for stormwater quality and quantity, each water management district, with DEP oversight, may continue to adopt rules on these subjects.32 The criteria set forth in AH II further the goal of meeting the water resource objectives in Part IV of F.S. Ch. 373. Performance criteria were used when possible.

Many thanks to Ms. Martin for this informative article. If you'd like more information, check out DEP's SWERP website, or the webinar produced by the Florida Bar's Environmental and Land Use Section.

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.

Florida Courts Must Defer to Administrative Agencies' Interpretation of Their Own Rules

In Florida, as in other states and in federal law, courts must give deference to an administrative agency's interpretation of its own rules. I've found that the average citizen usually finds this odd. Why should we allow an agency making a determination on a permit, entitlement, or other benefit to interpret its own rules? The short answer is administrative law is about efficiency, and not always about fairness.

In any case, the 2d DCA recently reinforced this principle in Duke's Steakhouse Ft. Myers, Inc. v. G5 Properties, LLC, - So. 3d -, 2013 WL 191922 (Fla. 2d DCA Jan. 18, 2013). Duke's challenged an order of the South Florida Water Management District approving an environmental resource permit (ERP). The administrative law judge (ALJ) recommended that the agency deny the permit. The District, however, issued a final order approving the ERP, rejecting the ALJ's interpretation of the District's rules:

[The District's] board did not reweigh the evidence or modify the ALJ's findings of fact. Rather, it rejected the ALJ's interpretation of the applicable Florida Administrative Code—specifically, the ALJ's conclusion of law that G5 did not meet BOR section 5.2.1(a) water quality requirements. Section 120.57(1)(l ) provides that an agency may reject or modify the ALJ's conclusions of law and interpretation of administrative rules, so long as its determination is as or more reasonable than those of the ALJ. Beyond peradventure, an agency bears the primary responsibility to interpret statutes and rules within its regulatory expertise and jurisdiction. See, e.g., Pub. Emps. Relations Comm'n v. Dade Cnty. Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla.1985). An agency's interpretation of such statutes and rules does not have to be the only reasonable interpretation—only a permissible one, see, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 So.2d 209, 212 (Fla. 1st DCA 1996), and should not be overturned unless clearly erroneous. See, e.g., Collier County Bd. of County Comm'rs v. Fish & Wildlife Conservation Comm'n, 993 So.2d 69, 72 (Fla. 2d DCA 2008).

The 2d DCA concluded that the District's interpretation of its rules were as or more reasonable than the ALJ's  interpretation. Thus, it affirmed the District final order granting the permit.

Fourth Quarter 2011: Recent Florida Environmental and Land Use Case Law

Continuing my Florida environmental and land use case law updates, I summarized the cases below with my co-author in the latest newsletter of the Florida Bar's Environmental and Land Use Law Section.

• Miami-Dade Cnty. v. Torbert, 
• 36 Fla. L. Weekly D1674a 
• (Fla. 3d 
• DCA Aug. 3, 2011), holding that plat restrictions must be incorporated and reference into a deed to be valid.
• St. Johns River Water Mgmt. Dist. v. Molica, 2011 WL 3627412 (Fla. 5th DCA Aug. 19, 2011), declaring that Water Management Districts have the power to create an administrative rule requiring environmental resource permits (ERP) for dredging and filling of surface water and wetlands.
• Bush v. Mexico Beach, 2011 WL 4345169 (Fla. 1st DCA Aug. 31, 2011), confirming previous case law requiring comprehensive plan consistency challenges after a local government hearing to be brought in de novo proceedings in circuit court, but allowing challenges to the hearing based on other reasons to be brought as certiorari proceedings.
• Mickel v. Norton, 2011 WL 4415353 (Fla. 2d DCA Sept. 23, 2011), holding that property owners do not have a riparian right to an unobstructed view of the water body unless the property directly borders it.
• 1000 Friends of Fla., Inc. v. Palm Beach Cnty., 2011 WL 4577746 (Fla. 4th DCA Oct. 5, 2011), stating that comprehensive plans are to be interpreted using the same rules of construction as statutes.
• West Palm Beach v. Roberts, 2011 WL 4949795 (Fla. 4th DCA Oct. 19, 2011), affirming a decision holding a city liable for inverse condemnation where it demolished a structure without giving the owner adequate notice.
• Pembroke Ctr., LLC v. Fla. Dep’t of Transp., 64 So. 3d 737 (Fla. 4th DCA 2011), denying an inverse condemnation claim where there were mere "planning activities" but no loss of activities.

You can detailed description in this quarter's newsletter. Please email me new cases we should review.