12-001356 Joseph E. Zagame, Sr. vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Friday, February 1, 2013.

Summary: Petitioner should be granted an agricultural exemption for dredging and filling activities undertaken to construct a pond as a secondary source of water for Petitioner's cattle operation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSHEPH E. ZAGAME, SR. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1356

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES , )

)

Respondent , )

)

and )

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Intervenor. )

)

RECOMMENDED ORDER

A final hearin g was conducted in this case on August 8 and

October 15 , 201 2 , in Leesburg , Florida, before

James H. Peterson, III, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph E. Zagame, Sr. , pro se

230 Mohawk Road

Clermont, Florida 34715

For Respondent: Carol A. Forthman , Esquire

Alyssa Cameron , Esquire

Office of the General Counsel

Florida Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

For Intervenor: R h onda L. Moore , Esquire

South Florida Water Management District

7601 Highway 301 North

Tampa, Florida 33637 - 6759

STATEMENT OF THE ISSUE

Whether Petitioner 's dredging and filling on his property

in Center Hill, Florida, q ualifies for an agricultural exemption

under section 373.406(2), Florida Statutes , 1 / fro m the

requirement to obtain an environmental resource p ermit from the

Southwest Flo rida Water Management District .

PRELIMINARY STATEMENT

On February 10, 2012, Respondent, Department of Agriculture

and Consumer Services ( the Department) , issued a Notice of

Binding Determination ( Preliminary Determination) to Intervenor,

Southwest Florida Water Management District ( the District ), and

Petitioner, Joseph E. Zagame, Sr. (Petitioner). The Preliminary

Determination found that Petitioner was not entitled to an

agricultural exemption under section 373.406(2) , from

environmental resource permit requirements for dredging and

filling activities within wetlands on property c ontrolled by

Petitioner located at 7376 County Road 710, Sumter County,

Florida (the Property).

Thereafter, Petitioner timely filed a request for an

administrative hearing which was referred to the Divis ion of

Administrative Hearings.

On the first day of the final hearing held August 8, 2012,

t he order of presentation was alter ed for clarity of issues so

that the Department and the District presented witnesses and

exhibits first , followed by Petitioner. That first day , t he

Department presented the testim ony of Department environmental

s pecialist , Noel Marton , and Department environmental

a dministrator , William Bartnick , and introduced two exhibits

that were received into evidence as Exhibits FDACS - 1 and FDACS -

2 .

On that first day, the District presented the testimony of

Jeff Whealton, a regional environmental scientist with the

District , and introduced one exhibit which was received into

evidence as Exhibit I - 1 .

That first day, Petitioner presen ted the testimony of James

Walts of Center Hill, Florida ; Mr . Kenneth Barrett, a

professional engineer ; and Mr. James Modica III, an

environmental consultant , and introduced four exhibits which

were received into evidence as Exh ibits P - 1, P - 2, P - 3 , and P - 4 .

At the end of the first day, Mr. Modica's testimony was

in terrupted because the hearing facility had to be closed for

the day. Thereafter, a n O rder allowing additional discovery was

issued on August 14, 2012, and, by separate O rder , a second day

of hearing was scheduled for October 15, 2012.

At the second day of hearing, Petitioner called Mr. Modica

and Mr. Bartnick to testify. Petitioner, Mr. Joseph E. Zagame,

Sr., also testified on his own behalf , and introduced 16 more

exhibits which were received into evidence as Exhibits P - 1A,

P - 3A, P - 4A, P - 5A, P - 6A, P - 7A , P - 8A, P - 9A, P - 10A, P - 11A, P - 2B,

P - 1C, P - 2C, P - 3C, P - 4C, and P - 5C .

The final hearing was recorded and a transcript ordered.

T he parties were given 30 days from the filing of the final

T ranscript to file proposed recommended orders. The T ranscript

for the first day of hearing was filed on August 21, 2012, and

the T ranscript for the second day was filed on October 30, 2012 .

The entire T ran script consists of four volumes -- two volumes

from the first day and two from the second day of hearing. T he

parties timely filed their respective Proposed Recommended

Orders, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Property is c omprised of 118 acres of contiguous

parcels located within S ection 23, Township 21 South, Range 23

East, in Sumter County, at the intersection of County Road 469

and County Road 710 in Center Hill, Florida. Title to the

Property is held by Petitioner and his wife under various

entities that they control. 2 /

2. The District is an administrative agency charged with

the responsibility to conserve, protect, manage , and control

water resources within its geographic boundaries, and to

administer and enforce chapter 373, Florida Statutes, and

related rules under chapter 4 0D of the Florida Administrative

Code.

3. The Department is the state agency authorized under

section 373.407, Florida Statutes, to make binding

determinations at the request of a water management d istrict or

landowner as to whether an existing or propose d activity

qualifies for an agricultural - related exemption under section

373.406(2).

4. Petitioner uses the Property for raising cattle, an

agricultural use. The activities at the Property are operated

under the name "Serenity Ridge Farms." Petitioner has had up to

65 head of cattle on the Property, but since 2011 , has kept only

approximately 30 head . The P roperty is classif ied as

agricultural pursuant to section 193.461, Florida Statutes.

5. At th e time Petitioner acquired the P roperty , there was

an approximately 2.5 - acre, more or less triangular, wetland at

the southern end of the western parcel at the intersection of

State Road (SR) 469 and County Road (CR) 710, Center Hill ,

Florida (the Site) . 3 / This wetland was originally the northern

part of a m uch larger wetland system but, years before, had been

severed from the larger system by the construction of the two

roads which form a ÐVÑ at the southern boundary of PetitionerÓs

property.

6. Due to its severance from the larger system, the

condition of the wetland on the Site was adversely affected . In

addition, the Site had been used by others for dumping various

types of debris over the years, including tires , appliances, and

concrete.

7. In approximately 2007, Peti tioner decided to clean up

the S ite and build a pond. Although the primary water needs for

his cattle had been met with water troughs serviced by a four -

inch well on the Property, h e intended to use the pond as a

supplement al source of water supply for his cattle .

8. In deciding to bui ld the pond, Petitioner did not

consult with the District . Nor did he confer with an engineer

regarding the amount of water the pond should hold to meet the

needs of his cattle. Rather, his decision as to the size and

configuration of the pond was driven by the footprint of the

area in the Site that Petitioner perceived as "full of garbage"

and a "landfill."

9. In March 2007, Petitioner began cleaning up the Site.

He noticed a stench from the garbage as the area was cleaned.

During cleanup, 2 6 old tire s, 14 - cubic yards of old appliances,

and pieces of concrete and steel were removed from the Site .

10. While there were no accurate wetland survey s of the

S ite prior to the initiation of Petitioner's clean - up efforts,

historical photographs of the Site and remnant plants indicate

that , at the time Petitioner undertook the cleanup, the wetland

had been significantly impacted. The construction of roads S R

469 and CR 710, which occurred prior to 1973, severed and

excluded the Site from the larger wetland a rea, preventing the

free flow of water beyond the Site. Although remaining a

wetland, the severance adversely impacted the wetland even

before the dumping.

11. The likely dominant species in the wetland were

Carolina Willow ( Salix spp. ) and Primrose Will ow ( Ludwigia

spp. ). While both Carolina Willow and Primrose Willow are

obligate wetland indicator species , 4 / Primrose willow can be a

nuisance species and Carolina willow can form a monoculture .

12. In June 2007, the District became aware of

Petitioner 's activities on the Site. The District opened a

complaint file and advised Petitioner that he should not proceed

without a permit.

13. Petitioner met with District staff on a number o f

occasions during his activities in an attempt to find a

resolution with the District, but a resolution was never

reached .

14. As a result of Petitioner's dredging and filling , a

1.12 - acre pond was created and an area of approximately 1.3

acres of wetland was filled. There is no remaini ng wetland

fu nction at the Site .

15. In July 2008, the City of Center Hill sent a letter to

the District's Environmental Regulation Manager. The letter,

dated July 2, 2008, was signed by the City of Center Hill's

Mayor, Chairman of the City Council, and City Clerk, a nd state d

in pertinent part :

As community leaders we have many

responsibilities that include the

stabilization and revitalization of the City

of Center Hill. We are fortunate to have

citizens who are concerned and active

regarding the quality of life in t he

neighborhoods they reside in. The upkeep of

our neighborhoods remains a critical element

to the success of our community.

Code enforcement cannot be successful

without the support of our local citizens.

It is the responsibility of each of us to

keep our properties code compliant. This

will ensure a safe and healthy City.

As part of a large voluntary effort, we are

pleased that Serenity Ridge Farms in eastern

Center Hill implemented a clean - up on

property adjacent to the intersection of SR

469 and CR 710 (E. Jefferson Street). The

community has increased traffic visibility

at this location after the removal of

nuisance overgrowth. Additionally, the

hauling of debris from the site eliminated a

public health hazard that existed as a

common dumping - ground for many years. In

fact, the work at this location far exceeds

any cod e compliance among the nearly 60

cases that have come to our attention in

recent years.

Property owners like Serenity Farms are what

make our City in Sumter County a great place

to live. Hence we ask that our

correspondence be included in your files and

distributed to members of your staff as you

see fit. The subject property has no code

deficiencies in the City of Center Hill.

16. Despite the City's letter and efforts between

Petitioner and the District, negotiations to settle the

District's complaint by restoration or mitigation of the alleged

adverse impacts of Petitioner's dredge - and - fill activities have

been unsuccessful .

17. The DistrictÓs governing board authorized initiation

of litigation against Petitioner on December 14, 2010.

18. On January 4, 2011, Petitioner submitted an after - the -

fact application to the District for an environmental resource

p ermit for the pond , along with an approximately $1 , 500 permit

application fee. After conducting a site meeting to review the

impact of Peti tioner's activities, District staff made a request

for additional information. The request for additional

information (RAI) requested an amount of engineering that,

according to Petitioner, would make compliance cost prohibitive.

As Petitioner explained in his testimony:

My quick estimate, and what the engineering,

required all of that, surveys[,]

to[p]ographic surveys, could have been

anywhere from 50 to [$]75,000, maybe more.

While the actual costs to comply with the Districts RAI have not

been determin ed, Petitioner's testimony that the RAI

requirements were cost prohibitive is credited.

19. On November 14, 2 011, the District wrote a letter to

the Department formally requesting a binding determination from

the Department as to whether the activities on the Property

qualify for the agricultural exemption afforded by sect ion

373.406(2) .

20. After receiving the DistrictÓs request, Department

staff conducted a site visit of the Property on December 28,

2011.

21. Th e approximately 1.12 - acre open water ar ea resulting

from PetitionerÓs dredging and filling ranges from 4 to 6 feet

deep at the center, depending on the ground water level. At the

time of the DistrictÓs site visit , the central pond depth was

approximately four feet . December is the dry season in this

area of Florida and in 2011 there was a drought. The

DepartmentÓs survey of the Site shows a water depth of six feet.

22. There has been some recruitment of wetland vegetation

in the shallower areas of the pond . In fac t, some of the

emergent vegetation is of higher quality than that which existed

prior to the dredging and filling, and there is evidence that

wildlife is utilizing it.

23. In addition, Petitioner Ós activities included the

construction of berm s below the b isecting roadways that help

filter direct road run - off t hat previously washed into the S ite.

24. The Site, however, has not been restored to a wetland

in any significant way. No regeneration is expected at

sustained depths of greater than two feet . The maximum

recommended depth for planting is one - and - one - half feet.

25. The pond is fenced off, preventing the cattle from

direct pond access.

26. Petitioner has spent over $12,000 landscaping and

putting in an irrigation system around the pond area. The

irrigation system is designed to water the landscaping,

including sapling live oaks and sod. Neither landscaping a pond

nor irrigating landscaping around a pond is typical for cattle

ponds. Petitioner has stated that he would someday like to

build a retirement home overlooking the pond.

27. The irrigation system, like the watering troughs on

the upla nd portions of the Property, is serviced by a four - inch

diameter well.

28. Generally , a four - inch well can produce 60 - 100 gallon s

per minute. The pond as constructed contain s approximately

100,000 gallons in the first four inches of water alone.

29. The District Ós standard permitting allocation for

water withdrawal for cattle is 12 gallo ns of water per day.

Under t he DepartmentÓs best manageme nt p ractices rule , 5 / the

allocation is up to 30 gallons per head of cattle per day .

30. On February 10, 2012, the Department rendered its

Preliminary Determination which concluded that PetitionerÓs

activities did not meet the requirements for an agricultu ral

exemption . Under the heading "Application of Statutory

Criteria, Ñ the Preliminary Determination stated:

Pursuant to Section 373.406(2) F.S., all of

the following criteria must be met in order

for the permitting exemption to apply.

(a) " Is the landow ner engaged in the

occupation of agriculture, silviculture,

floriculture, or horticulture? "

YES. The [Department's Office of

Agricultural Water Policy] finds that

[Petitioner] is engaged in the practice of

agriculture on 118 acres of agricultural

land in Sumter County, as evidenced by

their current agricultural land use

classification, the ongoing agricultural

production activities observed on site,

and the aforementioned cattle sale

receipts.

(b) " Are the alterations (or proposed

alterations) to the to pography of the land

for purposes consistent with the normal

and customary practice of such occupation

in the area? "

NO. [The Department] finds that the

construction of a cattle watering pond

within the footprint of a wetland is not a

normal and customary practice for the area

because:

1. Cattle watering ponds are not normally

constructed within wetlands; and

2. Cattle watering troughs were observed

in other upland locations throughout the

property, precluding the need for a catt le

pond in this location.

(c) " Are the alterations (or proposed

alterations) for the sole or predominant

purpose of impeding or diverting the flow

of surface waters or adversely impacting

wetlands? "

NO. (As to impeding or diverting surface

waters.) [The Department] finds that the

construction of a pond in the wetland was

not for the sole or predominant purpose of

impeding or diverting surface waters.

During the December 28, 2011 site visit,

[the Department's Office of Agricultural

Water Policy] staf f verified that the

post - development drainage patterns are

consistent with the pre - development

drainage patterns. Secondly, the wetland

is not connected to offsite drainage

systems, as it was severed in its entirety

by the construction of SR 469 and CR 71 0.

This occurred prior to [Petitioner] taking

ownership of the property. Lastly, the

entire farm's drainage system is gravity

driven, and is devoid of discharge pumps.

YES. (As to adversely impacting

wetlands.) [The Department] is aware that

the wetla nd was already of questionable

quality (see letter from the City of

Center Hill) when the pond was

constructed, given that the wetland was

severed and excluded from the larger

wetland system by the construction of SR

469 and CR 710. Nevertheless, [the

Dep artment] finds that the activity was

for the sole or predominant purpose of

adversely impacting the wetland, as the

character of the wetland was destroyed.

31. In sum, the Preliminary Determination concluded that

PetitionerÓs dredging and filling activities did not qualify for

the agricultural exemption provided under section 373.406(2)

because the activities are not normal and customary and they

adversely impact ed wetlands.

32. At the final hearing, however, the evidence indicat ed

that PetitionerÓs activities were normal and customary for

cattle operations in the area.

33. While the water needs of PetitionerÓs cattle are

usually served by a four - inch well, t he pond constructed at the

Site has been an effective supplemental source of water for

PetitionerÓs cattle operations. When the well ran dry,

Petitioner used pump trucks to siphon water from the pond and

fill the upland troughs. Petitioner plans to put a pump in the

pond to supply water to his cattle , but has not yet done so.

34. Man - made, belowground cattle - watering ponds are very

typical in Florida, especially in south and southwest Florida

because of the high water tables in the southern part of the

peninsula. 6 /

35. Further, Ð [i]t is not uncommon practice for Florida

cattle ranchers to excavate cattle ponds, remove muck from

existing cattl e ponds, and/or grade side slopes of ponds in low

lying depressional areas to provide a safe and reliable water

source for their cattle.Ñ 7 /

36. The fact that it is common for cattle ponds to be

built in low - lying areas was further demonstrated by aerial

p hotographs presented by PetitionerÓs witness, Mr. Modica , of

areas near the Property, including an approximately six - acre

pond off Palm Avenue (the Sanchez property) , a pond at a site

labeled Emory Lane , and a pond off CR 48 . While the ponds are

considere d by the District to be out of compliance on the

grounds that they may have adversely affected wetlands, their

existence shows that dredging and filling in low areas for

cattle ponds is common practice in the area. 8 /

37. Although 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 construc ted by Petitioner was for purposes consistent with

common practices for cattle operations in the area.

38. On the issue of whether there was adverse impact to a

wetland, the evidence showed that Department changed its

position several times while drafting the Preliminary

Determination.

39. Of the five drafts of the Preliminary Determination,

on the question (c) "[a]re the alterations (or proposed

alterations) for the sole or predominant purpose of . . .

adversely impacting wetlands?Ñ one draft stated:

UNS URE. (As to adversely impacting

wetlands.) Documentation shows a 2.47 acre

wetland impact area. This dredge and fill

activity was for the purpose of converting

the wetland to an open water and pasture

area. However, this remnant wetland area

was severe d and excluded from the larger

wetland system, as it was originally

impacted by the construction of SR 469 and

CR 710. Although wetland conditions prior

to ZagameÓs actions cannot be determined

with certainty, a letter from the City of

Center Hill indicat es questionable wetland

condition, which obfuscates remaining

quality and function.

40. Another draft, in answering the same question, stated:

NO. (As to adversely impacting wetlands.)

In the opinion of the [Department], the

impacted remnant wetland wa s of questionable

quality (see letter from the City of Center

Hill) having been previously severed and

excluded from the larger wetland system, by

the construction of SR 469 and CR 710.

41. Considering those factors addressed in the above -

quoted drafts o f the DepartmentÓs drafts of the Preliminary

Determination, as well as t he evidence of the condition of the

wetland when Petitioner began his clean up operations, it is

found that the predominant purpose and effect of PetitionerÓs

activities was to construc t a cattle pond and clean up a dumping

ground, not to adversely impact a wetland.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to sections 120.569, 120 .57(1), and

373.406(2), Florida Statutes .

43. This review of PetitionerÓs qualification for an

exemption is de novo, as the DepartmentÓs Preliminary

Determination is proposed agency action. The request for a

hearing effectively rendered the agency action non - final and

triggered the de novo hearing. DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 778, 787 ( Fla. 1 st DCA 1981).

44. In this case , Petitioner is asserting that his

activities qualify for the exemption from Environmental Resource

Permitting pursuant to section 373.406(2), Florida Statutes .

Exceptions to the reg ulatory authority conferred by c hapters 373

or 403 are to be narrowly construed against the person who is

claiming the statutory exemption. Samara Dev. Corp. v. Marlow ,

556 So. 2d 1097, 1100 (Fla. 1990) .

45. As the party claiming that he qualifies for the

exemption, Petitioner carries the Ðultimate burden of

persuasionÑ with regard to such qualification. J.W.C. Co . , 396

So. 2d at 787.

46. Petitioner must show by a preponderance of the

evidence that his activities are exempt from regulation. See

§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure proceedings or except as otherwise provided by statute

and shall be based exclusively on the evidence of record and on

matters officially recognized.")

47. The basic permitting authority of the water management

d istricts is set forth in section 373.413, Florida Statutes ,

which provides :

Except for the exemptions set forth herein,

the governing board or the department may

require such permits and impose such

reasonable conditions as are necessary to

assure that the construction or alteration

of any stormwater management system, dam,

impoun dment , reservoir appurtenant work, or

works will comply with the provisions of

this part and applicable rules promulgated

thereto and will not be harmful to the water

resources of the District.

(e mphasis added).

48. Impoundment is define d in section 3 73.403(3) as: Ðany

lake, reservoir, pond or other containment of surface water

occupying a bed or depression in the earthÓs surface and having

a discernible shoreline.Ñ The pond constructed by Petitioner is

therefore, an impoundment and, unless exempt, is subject to the

requirement of obtaining an environmental resource p ermit.

49. Section 373.406(2) provides an exemption from

Environmental Resource Permitting for certain agricultural

activities.

50. Prior to 2011, s ection 373.406(2) , provided:

N othing h erein, 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 .

51. In 2011 , section 373 .406(2) was revised by chapter

2011 - 165, Laws of Florida, shown with the new language

underlined and old language stricken, as follows:

Notwithstanding s. 403.927 , nothing herein,

or in any rule, regulation, or order adopted

pursuant hereto, shall be construed t o

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 wat ers

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 impounding or diverting the fl ow of

obstructing 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 retroacti ve

application to July 1, 1984.

52. S ection 373.406(2) has not changed since the 2011

revisions. By its terms, the exemption provided in section

373.406(2) has retroactive application. Furthermore, as

Petitioner is, in essence, an applicant for the exe mption,

current law should apply. See Lavernia v. DepÓt of ProfÓl Reg. ,

B d . of Med . , 616 So. 2d 53 (Fla. 1st DCA 1993)(law for

determining applications is the statute in effect at the time of

final determination ).

53. For many years prior to 2011 , the Department 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 rev isions i n

2011, chapter 2011 - 165, Laws of Florida, authorized t he

Department to make binding determinations , at the request of a

water management district or a landowner, regarding whether

alterations or activit ies qualif y for an exemption . See

§ 373.407, Fla. Stat.

54. Two threshold issues for an exemption under section

373.406(2) are: (1) is the land classified as agricultural

pursuant to 193.4 61 , Florida Statutes , and (2) is the person

whose activities are in question engaged in agriculture. The

parti es stipulated that both of these threshold requirements

were met in this case.

55. 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 f or

the area and (2) is not for the sole or predominant purpose of

adversely impacting wetlands.

56. As noted in the Findings of Fact, above, as a matter

of fact, it has been found that Petitioner's activities were

normal and customary and were not for the sole or predominant

purpose of adversely impacting wetlands. The factual findings

are consistent with applicable law.

57. U nder the facts and circumstances of this case, it is

appropriate to analyze the impact to the wetlands criteria

first. The 2011 revisions to section 373.406(2) specifically

exempt from regulation those agricultural alterations or

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 . .

. [as long as] such alteration [s] or activit [ies] [ are ] . . .

not . . . for the sole or predominant purpose of impeding

impounding or diverting the flow of obstructing surface waters 9 /

or adversely impacting wetl ands. "

58. The words Ð predominant Ñ and Ð purpose," as used in

section 373. 406(2), Florida Statutes (2007) , prior to the 2011

revisions were construed in Duda and Sons, Inc. v. St. Johns

River Water Management District , 17 So. 3d 738 (Fla. 5 th DCA

2009) . As the context of those terms as used in the current

version of section 373.406(2) is the same, the interpretation of

those terms in Duda and Sons, Inc. , supra ( Duda I ), is still

relevant. There, the Fifth District Court of Appeal agreed with

the water management district and administrative law judgeÓs

interpretation of the term ÐpurposeÑ within the context of

section 373.406(2) to mean the actionÓs objective effect or

function, as opposed to the subjective intent of the landowner in

undertaking the act ion . Duda I , 17 So. 3d at 742. The Fifth

District Court of Appeal, however, rejected the water

managementÓs definition of the term ÐpredominantÑ as Ðmore than

incidental,Ñ and explained:

ÐPredominantÑ does not mean Ðmore than

incidental.Ñ There are many gradations

between ÐpredominantÑ and Ðincidental.Ñ An

item can be Ðmore than incidentalÑ but not

Ðpredominant. For example, if an individual

had four equal sources of income totaling

$100,000/year, all four sources of income

would be Ðmore than incident al.Ñ However,

none of the four would be a predominant

source of income . Similarl y, an alteration

of topography may have more than an

incidental effect of impounding or

obstructing surface waters even though that

was not the predominant effect.

The lack o f merit in the District's argument

is further demonstrated by the fact that

pursuant to section 373.406(6) , the District

has already exempted from regulation any

activity which has "only minimal or

insignificant individual or cumulative

adverse effects on the water resources of

the district" for both agricultural and non -

agricultural activities . [footnote omitted]

The District's interpretation of section

373.406(2) , if accepted, would render the

agricultural exemption virtually

meaningless . As conceded b y the District at

oral argument, an alteration of topography

that had the effect of only incidentally

impounding or obstructing surface waters

would, in almost all cases, already be

exempt from regulation pursuant to

subsection (6) -- regardless of whether the

property owner was engaged in the occupation

of agriculture. [ 10 / ]

* * *

In its brief, Duda contends that the

primary purpose of its drainage ditches was

to lower the level of the groundwater table

so as to enhance agricultural productivity .

Section 3 73.406(2) provides an exception to

the agricultural exemption for the

impounding or obstructing of surface waters

-- not ground water . [footnote omitted]

Accordingly, if Duda constructed a drainage

ditch for a purpose consistent with the

practice of agri culture and if the

predominant effect of the drainage ditch was

to lower the groundwater table level, then

the construction of the drainage ditch would

be exempt from the District's permitting

requirements even if the ditch had a more

than incidental effec t of impounding or

obstructing surface waters.

Duda I , 17 So. 3d 743 - 744. Cf. Fla. Admin. Code R. 5M -

15.001(3)( effective 10/14/2012, subsequent to Duda I and one day

prior to the last day of the final hearing )( " Sole or predominant

purpose [means] [t]he primary function of the activity in

question").

59. Similarly, in this case, while there may have been

more than an incidental effect on a wetland, the evidence showed

that PetitionerÓs activities were not for the sole or

predominant purpose of adversely impact ing a wetland, but rather

were primarily undertaken to construct a cattle pon d and clean

up a dumping ground .

60. This conclusion is made with due regard for the

elevated legal status and protection that Florida's wetlands

have deservedly received u nder state and federal laws enacted in

the 1980's and 90's . 11 /

61. In recognition of these wetland protections , in a

subsequent appeal involving a substantive enforcement action

against A. Duda and Sons, Inc., in A. Duda and Sons, Inc. v. St.

Johns River Water Management District , 22 So. 3d 622, 623 (Fla.

5th DCA 2009)( Duda II ), 12 / the Fifth District Court of Appeal

observed:

. . . Duda I did not address the interplay

between section 373.406(2) and language from

the Warren S. Henderson Wetlands Protection

Act, chapter 84 - 79, Laws of Florida, now

codified at sections 403.927 (2) & (4)(a) ,

Florida Statutes. Those provisions

virtually eliminate the agricultural

exemption as it applies to alterations

impacting wetlands. Under section 403.927 ,

agricultural act ivities that impede or

divert the flow of surface waters even

incidentally are not exempt from regulation

if they impact wetlands . Id .

62. T he 2011 revisions to the agricultural exemption found

in 373.406(2), however, were made after the Fifth District's

observations in Duda II . Contrary to Duda II 's suggestion that

an agricultural exemption is unavailable for alterations that

impact wetlands, t he initial sentence of the 2011 revisions

begins " N otwithstanding s. 403.927 , " and then specifi cally

includes " activities that may . . . adversely impact wetlands "

within the activities contemplated for exemption from

regulation . See § 373.406(2), Fla. Stat. (first sentence).

63. Further, denial of an exe mption for Petitioner's

activities under the facts and circumstances in this case would

not promo te wetland protection. Rather, it would require the

application of regulations in a manner that would interfere with

improvements made to a remnant wetland dumping ground that has

been entirely severed from its adjacent wetlands since prior to

1973. Despite vast and important legislation protecting

wetlands, an exemption is contemplated for qualifying activities

that do not have a predominant purpose of adversely affecting

wetlands.

64. As t he evidence demonstrated that the predominant

purpose of Petitioner's activities was the constructi on of a

cattle pond along with the clean up , and not to adversely affect

wetlands , as long as those activities are for purposes

consistent with the normal an d customary practice of such

occupation in the area , Petitioner should be entitled to the

exemption .

65. This Recommended Order undertook analysis of the

adverse imp act to wetlands first in order to avoid duplicative

use of wetland criteria in determining whether PetitionerÓs

activities qualify for the exemption. The DepartmentÓs

Preliminary Determination, however, uses the fact that

PetitionerÓs activities were in a wetland in both the Ðadverse

impact to wetlandÑ analysis as well as its Ðnormal and customary

practiceÑ inquiry.

66. In fact, even in its draft of the Preliminary

Determination where the Department found that PetitionerÓs

alterations were not undertaken Ðfor the sole or predominant

purpose of . . . adversely im pacting wetlands,Ñ the Department

found in its Ðnormal and customaryÑ analysis that Ðc attle

watering ponds are not normally constructed within wetlands . Ñ

67. The undersigned finds that duplicative use of the fact

that wetlands were impacted is contrary to the inquiry

contemplated under the 2011 revisions to section 373.40 6(2) ,

which by their terms , anticipate that a wetland would be

involved in an agricultural activity for which an exemption from

wetland regulation is requested.

68. Even if it were approp riate to consider that the

activity occurred in a wetland under the Ðnormal and customaryÑ

inquiry , a s noted in the Findi ngs of Fact, above, the evidence

demonstrated, as a matter of fact, that cattle ponds in low -

lying areas are normal and customary for cattle operations in

the area .

69. The Department further suggests that PetitionerÓs

activities were not normal and customary because they are

inconsistent with best management practices adopted by the

Department. As part of the revisions made in c hapt er 2011 - 165,

Laws of Florida, the de finition of "agricultural activities"

found in section 403.927(4)(a) was also revised, shown with new

language underlined and old language stricken, as follows:

ÐAgricultural activitiesÑ includes all

necessary farming an d forestry operations

which are normal and customary for the area,

such as site preparation, clearing, fencing,

contouring to prevent soil erosion, soil

preparation, plowing, planting cultivating,

harvesting, fallowing, leveling,

construction of access roa ds, and placement

of bridges and culverts , and implementation

of best management practices adopted by the

Department of Agriculture and Consumer

Services or practice standards adopted by

the United States Department of

AgricultureÓs Natural Resources Conse rvation

Service , provid ed such operations are not

for the sole or predominant purpose of

impeding do not impede or diverting divert

the flow of surface water or adversely

impacting wetlands .

70. The Department argues that reference to best

management practices in section 403.927(4)(a) means that

activities that do not meet those standards are not "normal and

customary" within the meaning of section 373.406(2). In light

of the plain terms of the s tatute, 13 / however, the Department's

argument is unpersuasive. Rather than restricting which

practices are "normal and customary," the conjunctive "and"

actually expands the list of "agricultural activities"

previously set forth in section 403.927(4)(a ) to also include

best management practices . 14 /

71. While not all aspects of PetitionerÓs pond are

typical, t he evidence demonstrated that PetitionerÓs activities

resulted in a cattle pond that was useful to his cattle

operations and were for Ð purposes consist ent with the normal and

customary practice of such occupation in the area Ñ within the

meaning of section 373.406(2).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Florida Department of

Agriculture and Consumer Services enter a final o rder finding

that the activities on PetitionerÓs property addressed in this

case are exempt pursuant to section 373.406(2), Florida

Statutes.

DONE AND ENT ERED this 1st day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 1st day of Febru ary, 2013 .

ENDNOTES

1 / Unless otherwise noted, citations to statutes and rules are

to their current, 2012, versions.

2 / The Property contains several parcels, some owned by Ramaela

of Clermont Limited Partnership (Ramaela) and some owned by

Menaleous Land Group LLC (Menaleou s). RamaelaÓs partne rs are

two trusts. Petitioner is trustee of one of RamaelaÓs partners

and is a managing member of Menaleous.

3 / The wetland was located on the Ramaela property, but for

purposes of the exemption determination at issue, has been

trea ted as part of the entire 118 acres of Property.

4 / See Fl a. Admin . Code R . 62 - 340.450(1).

5 / See Fla. Admin. Code R. 5M - 11 .

6 / This finding is extracted from the testimony of the

DepartmentÓs Environmental Administrator William Bartnick, who

added , Ðbut the [cattle ponds] IÓve seen are almost always

constructed in uplands and our manual says 50 f eet away from the

well and edge [of wetlands].Ñ See Transcript from August 8,

2012, p. 132. While Mr. BartnickÓs testimony reflected in the

finding is cre dited, his observations regarding the locations of

ponds were contradicted by more persuasive evidence indicating

that cattle ponds are commonly located in low - lying areas.

7 / See Exhibit P - 1A (DepartmentÓs Non - Binding Written Summary

and Opinion on Louis M. Sanchez, dated April 25, 2003, p. 2) .

8 / Mr. Modica also testified that he had four ponds that had

been dug in wetlands on his own property in the area and that

there were a number of ponds dug in wetlands on the Disney

Wilderness Preserve (previously, the Walker Ranch property) that

the Nature Conservancy which manages the property had matured

into stable systems that they decided not to restore. While

details as to the dat e of construction of these ponds was not

provided, Mr. ModicaÓs testimony provided additional support for

the proposition that dredging of cattle ponds in wetlands has

been a common practice for the area in the past.

9 / Impeding or diverting surface wate rs is not at issue. In its

Preliminary Determination, the Department found that the

construction of a pond in the wetland was not for the sole or

predominant purpose of impeding or diverting surface waters.

The evidence in this case supports that conclus ion, as well as

the Department's finding in its Preliminary Determination that

"the post - development drainage patterns are consistent with the

pre - development drainage patterns . . . [and that] the wetland

[was] not connected to offsite drainage systems, a s it was

severed in its entirety by the construction of SR 469 and CR

710, . . . prior to [Petitioner] taking ownership of the

property."

10 / Th e exemption for minimal or insignificant impacts on water

resources referenced by the Fifth District was unchanged by the

2011 revisions and is still found in the present version of

section 373.406(6), Florida Statutes.

11 / As accurately noted in the Department's Proposed Recommended

Order, in 1984 , Florida adopted the Henderson Wetland Protection

Act, which expanded the scope of wetland regulation in the state

to include agricultural wetlands connected to state waters. Ch.

84 - 79, Laws of Fla. Congre ss passed the Food Security Act of

1985 (PL 99 - 198; 16 U.S.C §§3801 - 3862), section 3821 of which

required that farmers receiving USDA benefits to refrain from

cultivating wetlands. In 1986, the Florida legislature adopted

section 373.414(1), Florida Statu tes, which directed water

management districts to adopt rules relating to the regulation

of isolated wetlands. Ch. 86 - 186, § 4, Laws of Fla. And in

1993, the Florida legislature transferred and amended dredging

and filling criteria from chapter 403 to ch apter 373, Florida

Statutes, which accomplished a substantial reorganization of

wetland regulation in Florida, and placed all wetlands,

including isolated wetlands, under the dredge and fill

regulatory authority of the Department of Environmental

Protectio n and water management districts. See Ch. 93 - 213, Laws

of Fla.

12 / Duda I , supra , involved a final order entered by an

administrative law judge (ALJ) denying the appellant's

challenges to certain adopted rules, statutory interpretations ,

and policies. D uda II was an appeal from a final order from the

water management district adopting the ALJ's recommended order

which required appellant to either restore impacted wetlands or

apply for after - the - fact permits.

13 / "One of the most fundamental tenets of st atutory

construction requires that the courts give statutory l anguage

its plain and ordinary meaning, unless words are defined in the

statute or by the clear intent of the Legislature." Duda I , 17

So. 3d at 742.

14 / This conclusion is consistent with the Department's new rule

that defines "normal and customary practice in the area" as

"[g]enerally accepted agricultural activities" without reference

to best management practices. See Fla. Admin. Code R. 5M -

15.001(2).

COPIES FURNISHED :

Carol Ann Forthman, Esquire

Department of Agriculture

and Consumer Services

407 South Calhoun Street

Tallahassee, Florida 32399

Joseph E. Zagame

230 Mohawk Road

Clermont, Florida 34715

Ronda L. Moore, Esquire

Southwest Florida

Water Management District

7601 Highway 301 North

Tampa, Florida 33637 - 6759

Lorena Holley, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Honorable Adam Putnam, Com missioner

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.