08-003530 Danny J. Suggs, Deborah Suggs, Gary D. Suggs, Amber Suggs, Joseph Krueger, And Joann Suggs-Krueger vs. Southwest Florida Water Management District Status: Closed Recommended Order on Thursday, February 19, 2009.

Summary: Petitioners did not prove either "agricultural" or "agricultural closed system" exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY J. SUGGS, DEBORAH SUGGS, )

GARY D. SUGGS, AMBER SUGGS, )

JOSEPH KRUEGER, and JOANN )

SUGGS-KRUEGER, )

)

Petitioners, )

)

vs. ) Case No. 08-3530

)

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, )

)

)

Respondent. )

)

RECOMMENDED ORDER

A final administrative hearing was held in this case on

January 13 and 14, 2009, in Bushnell, Florida, and by telephone

on January 16, 2009, before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: R. Colt Kirkland, Esquire

Blanchard, Merriam, Adel & Kirkland, P.A.

Post Office Box 1869

Ocala, Florida 34478-1869

For Respondent: Dominick J. Graziano, Esquire

Bush, Graziano & Rice, P. A.

Post Office Box 3423

Tampa, Florida 33601-3423

and

Joseph J. Ward, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners' activities on

their property in Sumter County, which impacted 38 acres of

wetlands, are exempt under Section 373.406(2)-(3), Florida

Statutes, 1 from environmental resource permit (ERP) regulation.

PRELIMINARY STATEMENT

This case has a long and tortured history of related

litigation, at the end of which Petitioners applied for the

exemptions at issue. The Southwest Florida Water Management

District (SWFWMD, or District) denied the exemption requests and

referred the matter to DOAH for a hearing. Based on the

litigation history, the District moved to relinquish jurisdiction

based on the law of the case and collateral estoppel. An Order

Denying Motion to Relinquish Jurisdiction was entered on

September 12, 2008, 2 and the case proceeded to a final hearing on

January 13, 2009.

At the final hearing, the District's Request for Official

Recognition of 24 documents reflecting part of the litigation

history was granted. Petitioners called Danny J. Suggs,

Gary Bethune, P.E. (an agricultural engineer), and Gary D. Suggs.

Petitioners' Exhibits 1-25 were admitted in evidence. The

District called Leonard Bartos, Mark Luchte, P.E. (an

agricultural engineer), Jeffrey Whealton, and Harry Clark Hull.

SWFWMD Exhibits 1, 3, 11, 12, 16, 18, 19, 20, 24, and 25 were

admitted in evidence. In rebuttal, Petitioners re-called

Gary Bethune and called Charles Lynn Miller, P.E. (a civil

engineer), whose testimony was heard by telephone on January 16,

2009.

After presentation of evidence, the District ordered a

Transcript of the final hearing, and the parties were given ten

days from the filing of the Transcript in which to file proposed

recommended orders (PROs). The Transcript was filed (in five

volumes) on February 4, 2009, making PROs due February 16, 2009.

The timely PROs have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioners hold title to approximately 180 acres of

agricultural land north of State Road 44 in Sumter County. 3

Danny J. Suggs and his wife purchased the property in 1997 and

1998 to start to fulfill his "dream" to build multiple residences

for himself and his wife and for members of his family on the

property and to raise cattle and plant a pecan grove and retire

from his construction and roofing contracting businesses. His

concept was for the real estate to be held in a family trust.

2. When Mr. Suggs began to implement his plans, he learned

that Sumter County required that the building permit for each

residence be on a separate parcel of at least five acres in size.

For that reason, he gave his family members five-acre deeds for

each residence he wanted to build. However, while they had deeds

for their lots, none of the family paid more than nominal

consideration, paid for costs of development or construction, or

had any actual control of Mr. Suggs' plans for the property.

3. Soon after buying the property, Mr. Suggs bought a few

head of cattle that were allowed to roam and graze on the

property. He then began to develop the property. He dug canals,

ditches, and ponds, and constructed fill roads. As part of his

surface water management system, Mr. Suggs constructed an earthen

berm along part of the western perimeter of the property to keep

water from flowing off his property and into Rutland Swamp and

Creek, which are waters of the State. Some of Mr. Suggs' land

alterations were in the 100-year floodplain, including an

encroachment into land owned by a neighbor. Mr. Suggs testified

that he has the neighbor's permission, but he has no written

permission for the encroachment.

4. Mr. Suggs' activities on the property impacted

approximately 38 acres of wetlands. In December 2002, the

District cited Petitioners for dredging and filling wetlands on

the property without a permit. Extensive litigation ensued,

during which Petitioners took the position that they were exempt

under Section 373.406(2)-(3), Florida Statutes--the

"agricultural" and the "agricultural closed system" exemptions,

which are set out in Conclusion 18. Petitioners continued

development and construction activities until enjoined by the

circuit court in March 2004.

5. By the time of the court's injunction, Mr. Suggs had

completed about 80 percent of his planned surface water

management system for the property. Mr. Suggs intended his

design to retain all surface on the property in a 50-year, 24-

hour storm event. However, it was not proven that Mr. Suggs'

design would have accomplished his intended purpose.

6. By the time of the court's injunction, Mr. Suggs also

had built six large residences for family members and dug ditches

around each residence for drainage. He says he has plans to

build another eight identical residences for other family

members.

7. In May 2004, Petitioners retained Gary Bethune, an

agricultural engineer, to attempt to design an agricultural

closed system that would be exempt under Section 373.406(3),

Florida Statutes, for presentation in a hearing before the state

circuit court. Mr. Bethune completed his design in June 2004.

8. Mr. Bethune's design includes an earthen berm to retain

all surface on the property in a 100-year, 24-hour storm event.

It also incorporates a spillway to discharge excess water into

the Rutland Swamp and a covered conveyance structure to allow

water from the eastern side of the property to pass through

without commingling with surface water on the property and to

discharge into Rutland Swamp on the western side of the property.

9. Mr. Bethune's design will not retain surface water on

the property in the event of a storm exceeding the 100-year, 24-

hour design storm; it also will not necessarily retain all

surface water on the property in the event of multiple storm

events not exceeding the 100-year, 24-hour storm event.

10. Mr. Bethune's design does not address groundwater.

Groundwater will flow under the property towards Rutland Swamp

and Creek. Surface water on the property, together with

contaminants from cattle grazing on the property and fertilizer

and pesticides used growing pecan trees, will percolate into the

ground, mix with the groundwater, and flow into Rutland Swamp and

Creek.

11. Mr. Bethune's design is not appropriate or reasonable

for either a cattle ranch or a pecan grove. It will cause the

property to flood during the design 100-year, 24-hour storm and

in various combinations of lesser storms. A bona fide cattle

ranch is not designed to flood during the wet season. Similarly,

a bona fide pecan grove is not designed to flood during the wet

season.

12. During and after Mr. Suggs' development and

construction activities, his cattle have continued to roam freely

around the property. However, besides the inappropriateness and

unreasonableness of Mr. Bethune's design for a cattle ranch,

Mr. Suggs' other activities also are inappropriate and

unreasonable for a bona fide cattle ranch. The ponds, canals,

and ditches he dug are much deeper and have banks much steeper

than a bona fide cattle ranch would have. They are so deep and

steep that cattle will have great difficulty using them for

drinking water. In addition, fill from the extraordinarily deep

ponds, canals, and ditches as well as fill Mr. Suggs had

delivered from offsite has been spread on the property to a

thickness that has reduced the amount of cattle forage on the

property, instead of increasing and improving it, as would occur

on a bona fide cattle ranch.

13. Besides the inappropriateness and unreasonableness of

Mr. Bethune's design for a pecan grove, there are no pecan

growers anywhere near Petitioners' property. Even if feasible to

grow pecans for profit on the property, there was no evidence

that any alteration of the property would be appropriate or

reasonable to plant a pecan grove. Although there is an area of

upland where Mr. Suggs says he wants to plant pecan trees, not a

single pecan tree has been planted yet (as of the time of the

final hearing). In addition, there was no evidence that the land

designated for a pecan grove would not be needed for the eight

additional residences Mr. Suggs says he plans to build on the

property.

14. The primary purpose of Mr. Suggs' surface water

management system is not for agricultural purposes, or incidental

to agricultural purposes. Rather, the primary purpose is to

impound and obstruct the flow of surface water to facilitate the

construction of the residences on his property--the six already

built and another eight he plans to build.

15. Mr. Suggs refers to the residences he has built and

plans to build as family residences to be owned by a family

trust, the six residences already built are now for sale at an

asking price of a million dollars each.

CONCLUSIONS OF LAW

16. It is clear from the facts of this case, and from the

related litigation history, that the District has jurisdiction

over this matter. It also is clear that DOAH has jurisdiction

under Sections 120.569 and 120.57, Florida Statutes.

17. Petitioners have the burden to prove that their

activities are exempt from ERP regulation under Chapter 373, Part

IV, Florida Statutes. See Hough v. Menses , 95 So. 2d 410, 412

(Fla. 1957); Key vattman , 959 So. 2d 339, 345 (Fla. 1st DCA

2007).

18. Section 373.406, Florida Statutes, includes the only

two exemptions asserted by Petitioners 4 :

(2) 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 for purposes consistent with

the practice of such occupation. However,

such alteration may not be for the sole or

predominant purpose of impounding or

obstructing surface waters.

(3) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to be applicable to

construction, operation, or maintenance of

any agricultural closed system. However,

part II of this chapter shall be applicable

as to the taking and discharging of water for

filling, replenishing, and maintaining the

water level in any such agricultural closed

system. This subsection shall not be

construed to eliminate the necessity to meet

generally accepted engineering practices for

construction, operation, and maintenance of

dams, dikes, or levees.

These exemptions are commonly referred to as the "agricultural

exemption" and "agricultural closed system exemption,"

respectively.

19. The "agricultural exemption" can be claimed by "a

person engaged in the occupation of agriculture, . . . for

purposes consistent with the practice of such occupation," so

long as the alteration is not "for the sole or predominant

purpose of impounding or obstructing surface waters." In this

case, none of the Petitioners are engaged in the occupation of

agriculture, their activities are not consistent with the

practice of agriculture, and their sole or predominant purpose is

to impound or obstruct surface waters. For these reasons, the

"agricultural exemption" clearly does not apply.

20. The "agricultural closed system exemption" also clearly

does not apply to Petitioners' surface water management system,

either as it now exists, as Mr. Suggs originally designed it, or

as Mr. Bethune subsequently redesigned it. It is not an

agricultural system, and it is not a closed system .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the District enter a final order that

Petitioners' activities on their property are not exempt from ERP

regulation.

DONE AND ENTERED this 19th day of February, 2009, in

Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2009.

ENDNOTES

1/ Unless otherwise indicated, statutory citations are to the

2008 Florida Statutes.

2/ The litigation history is recited in this Order.

3/ The property is in Section 2, Township 19 South, Range 21

East.

4/ During the course of these proceedings, Petitioners also

asserted an exemption under Rule 40D-4.051(7), but they dropped

that assertion during and after the final hearing. In any event,

the evidence clearly did not prove entitlement to an exemption

under the Rule since it only applies to "a single family dwelling

unit, duplex, triplex or quadruplex that is not part of a larger

common plan of development or sale and does not involve wetlands

or other surface waters."

COPIES FURNISHED:

Joseph J. Ward, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

R. Colt Kirkland, Esquire

Blanchard, Merriam, Adel &

Kirkland, P.A.

Post Office Box 1869

Ocala, Florida 34478-1869

Dominick J. Graziano, Esquire

Bush, Graziano & Rice, P. A.

Post Office Box 3423

Tampa, Florida 33601-3423

David L. Moore, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.