12-001356
Joseph E. Zagame, Sr. vs.
Department Of Agriculture And Consumer Services
Status: Closed
Recommended Order on Friday, February 1, 2013.
Recommended Order on Friday, February 1, 2013.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JOSHEPH E. ZAGAME, SR. , )
13)
14Petitioner , )
16)
17vs. ) Case No. 12 - 1356
24)
25DEPARTMENT OF AGRICULTURE AND )
30CONSUMER SERVICES , )
33)
34Respondent , )
36)
37and )
39)
40SOUTHWEST FLORIDA WATER )
44MANAGEMENT DISTRICT , )
47)
48Intervenor. )
50)
51RECOMMENDED ORDER
53A final hearin g was conducted in this case on August 8 and
66October 15 , 201 2 , in Leesburg , Florida, before
74James H. Peterson, III, Administrative Law Judge with the
83Division of Administrative Hearings.
87APPEARANCES
88For Petitioner: Joseph E. Zagame, Sr. , pro se
96230 Mohawk Road
99Clermont, Florida 34715
102For Respondent: Carol A. Forthman , Esquire
108Alyssa Cameron , Esquire
111Office of the General Counsel
116Florida Department of Agriculture
120and Consumer Services
123407 South Calhoun Street, Suite 520
129Tallahassee, Florida 32399 - 0800
134For Intervenor: R h onda L. Moore , Esquire
142South Florida Water Management District
1477601 Highway 301 North
151Tampa, Florida 33637 - 6759
156STATEMENT OF THE ISSUE
160Whether Petitioner 's dredging and filling on his property
169in Center Hill, Florida, q ualifies for an agricultural exemption
179under section 373.406(2), Florida Statutes , 1 / fro m the
189requirement to obtain an environmental resource p ermit from the
199Southwest Flo rida Water Management District .
206PRELIMINARY STATEMENT
208On February 10, 2012, Respondent, Department of Agriculture
216and Consumer Services ( the Department) , issued a Notice of
226Binding Determination ( Preliminary Determination) to Intervenor,
233Southwest Florida Water Management District ( the District ), and
243Petitioner, Joseph E. Zagame, Sr. (Petitioner). The Preliminary
251Determination found that Petitioner was not entitled to an
260agricultural exemption under section 373.406(2) , from
266environmental resource permit requirements for dredging and
273filling activities within wetlands on property c ontrolled by
282Petitioner located at 7376 County Road 710, Sumter County,
291Florida (the Property).
294Thereafter, Petitioner timely filed a request for an
302administrative hearing which was referred to the Divis ion of
312Administrative Hearings.
314On the first day of the final hearing held August 8, 2012,
326t he order of presentation was alter ed for clarity of issues so
339that the Department and the District presented witnesses and
348exhibits first , followed by Petitioner. That first day , t he
358Department presented the testim ony of Department environmental
366s pecialist , Noel Marton , and Department environmental
373a dministrator , William Bartnick , and introduced two exhibits
381that were received into evidence as Exhibits FDACS - 1 and FDACS -
3942 .
396On that first day, the District presented the testimony of
406Jeff Whealton, a regional environmental scientist with the
414District , and introduced one exhibit which was received into
423evidence as Exhibit I - 1 .
430That first day, Petitioner presen ted the testimony of James
440Walts of Center Hill, Florida ; Mr . Kenneth Barrett, a
450professional engineer ; and Mr. James Modica III, an
458environmental consultant , and introduced four exhibits which
465were received into evidence as Exh ibits P - 1, P - 2, P - 3 , and P - 4 .
486At the end of the first day, Mr. Modica's testimony was
497in terrupted because the hearing facility had to be closed for
508the day. Thereafter, a n O rder allowing additional discovery was
519issued on August 14, 2012, and, by separate O rder , a second day
532of hearing was scheduled for October 15, 2012.
540At the second day of hearing, Petitioner called Mr. Modica
550and Mr. Bartnick to testify. Petitioner, Mr. Joseph E. Zagame,
560Sr., also testified on his own behalf , and introduced 16 more
571exhibits which were received into evidence as Exhibits P - 1A,
582P - 3A, P - 4A, P - 5A, P - 6A, P - 7A , P - 8A, P - 9A, P - 10A, P - 11A, P - 2B,
612P - 1C, P - 2C, P - 3C, P - 4C, and P - 5C .
629The final hearing was recorded and a transcript ordered.
638T he parties were given 30 days from the filing of the final
651T ranscript to file proposed recommended orders. The T ranscript
661for the first day of hearing was filed on August 21, 2012, and
674the T ranscript for the second day was filed on October 30, 2012 .
688The entire T ran script consists of four volumes -- two volumes
700from the first day and two from the second day of hearing. T he
714parties timely filed their respective Proposed Recommended
721Orders, which have been considered in the preparation of this
731Recommended Order.
733FINDINGS OF FACT
7361. The Property is c omprised of 118 acres of contiguous
747parcels located within S ection 23, Township 21 South, Range 23
758East, in Sumter County, at the intersection of County Road 469
769and County Road 710 in Center Hill, Florida. Title to the
780Property is held by Petitioner and his wife under various
790entities that they control. 2 /
7962. The District is an administrative agency charged with
805the responsibility to conserve, protect, manage , and control
813water resources within its geographic boundaries, and to
821administer and enforce chapter 373, Florida Statutes, and
829related rules under chapter 4 0D of the Florida Administrative
839Code.
8403. The Department is the state agency authorized under
849section 373.407, Florida Statutes, to make binding
856determinations at the request of a water management d istrict or
867landowner as to whether an existing or propose d activity
877qualifies for an agricultural - related exemption under section
886373.406(2).
8874. Petitioner uses the Property for raising cattle, an
896agricultural use. The activities at the Property are operated
905under the name "Serenity Ridge Farms." Petitioner has had up to
91665 head of cattle on the Property, but since 2011 , has kept only
929approximately 30 head . The P roperty is classif ied as
940agricultural pursuant to section 193.461, Florida Statutes.
9475. At th e time Petitioner acquired the P roperty , there was
959an approximately 2.5 - acre, more or less triangular, wetland at
970the southern end of the western parcel at the intersection of
981State Road (SR) 469 and County Road (CR) 710, Center Hill ,
992Florida (the Site) . 3 / This wetland was originally the northern
1004part of a m uch larger wetland system but, years before, had been
1017severed from the larger system by the construction of the two
1028roads which form a ÐVÑ at the southern boundary of PetitionerÓs
1039property.
10406. Due to its severance from the larger system, the
1050condition of the wetland on the Site was adversely affected . In
1062addition, the Site had been used by others for dumping various
1073types of debris over the years, including tires , appliances, and
1083concrete.
10847. In approximately 2007, Peti tioner decided to clean up
1094the S ite and build a pond. Although the primary water needs for
1107his cattle had been met with water troughs serviced by a four -
1120inch well on the Property, h e intended to use the pond as a
1134supplement al source of water supply for his cattle .
11448. In deciding to bui ld the pond, Petitioner did not
1155consult with the District . Nor did he confer with an engineer
1167regarding the amount of water the pond should hold to meet the
1179needs of his cattle. Rather, his decision as to the size and
1191configuration of the pond was driven by the footprint of the
1202area in the Site that Petitioner perceived as "full of garbage"
1213and a "landfill."
12169. In March 2007, Petitioner began cleaning up the Site.
1226He noticed a stench from the garbage as the area was cleaned.
1238During cleanup, 2 6 old tire s, 14 - cubic yards of old appliances,
1252and pieces of concrete and steel were removed from the Site .
126410. While there were no accurate wetland survey s of the
1275S ite prior to the initiation of Petitioner's clean - up efforts,
1287historical photographs of the Site and remnant plants indicate
1296that , at the time Petitioner undertook the cleanup, the wetland
1306had been significantly impacted. The construction of roads S R
1316469 and CR 710, which occurred prior to 1973, severed and
1327excluded the Site from the larger wetland a rea, preventing the
1338free flow of water beyond the Site. Although remaining a
1348wetland, the severance adversely impacted the wetland even
1356before the dumping.
135911. The likely dominant species in the wetland were
1368Carolina Willow ( Salix spp. ) and Primrose Will ow ( Ludwigia
1380spp. ). While both Carolina Willow and Primrose Willow are
1390obligate wetland indicator species , 4 / Primrose willow can be a
1401nuisance species and Carolina willow can form a monoculture .
141112. In June 2007, the District became aware of
1420Petitioner 's activities on the Site. The District opened a
1430complaint file and advised Petitioner that he should not proceed
1440without a permit.
144313. Petitioner met with District staff on a number o f
1454occasions during his activities in an attempt to find a
1464resolution with the District, but a resolution was never
1473reached .
147514. As a result of Petitioner's dredging and filling , a
14851.12 - acre pond was created and an area of approximately 1.3
1497acres of wetland was filled. There is no remaini ng wetland
1508fu nction at the Site .
151415. In July 2008, the City of Center Hill sent a letter to
1527the District's Environmental Regulation Manager. The letter,
1534dated July 2, 2008, was signed by the City of Center Hill's
1546Mayor, Chairman of the City Council, and City Clerk, a nd state d
1559in pertinent part :
1563As community leaders we have many
1569responsibilities that include the
1573stabilization and revitalization of the City
1579of Center Hill. We are fortunate to have
1587citizens who are concerned and active
1593regarding the quality of life in t he
1601neighborhoods they reside in. The upkeep of
1608our neighborhoods remains a critical element
1614to the success of our community.
1620Code enforcement cannot be successful
1625without the support of our local citizens.
1632It is the responsibility of each of us to
1641keep our properties code compliant. This
1647will ensure a safe and healthy City.
1654As part of a large voluntary effort, we are
1663pleased that Serenity Ridge Farms in eastern
1670Center Hill implemented a clean - up on
1678property adjacent to the intersection of SR
1685469 and CR 710 (E. Jefferson Street). The
1693community has increased traffic visibility
1698at this location after the removal of
1705nuisance overgrowth. Additionally, the
1709hauling of debris from the site eliminated a
1717public health hazard that existed as a
1724common dumping - ground for many years. In
1732fact, the work at this location far exceeds
1740any cod e compliance among the nearly 60
1748cases that have come to our attention in
1756recent years.
1758Property owners like Serenity Farms are what
1765make our City in Sumter County a great place
1774to live. Hence we ask that our
1781correspondence be included in your files and
1788distributed to members of your staff as you
1796see fit. The subject property has no code
1804deficiencies in the City of Center Hill.
181116. Despite the City's letter and efforts between
1819Petitioner and the District, negotiations to settle the
1827District's complaint by restoration or mitigation of the alleged
1836adverse impacts of Petitioner's dredge - and - fill activities have
1847been unsuccessful .
185017. The DistrictÓs governing board authorized initiation
1857of litigation against Petitioner on December 14, 2010.
186518. On January 4, 2011, Petitioner submitted an after - the -
1877fact application to the District for an environmental resource
1886p ermit for the pond , along with an approximately $1 , 500 permit
1898application fee. After conducting a site meeting to review the
1908impact of Peti tioner's activities, District staff made a request
1918for additional information. The request for additional
1925information (RAI) requested an amount of engineering that,
1933according to Petitioner, would make compliance cost prohibitive.
1941As Petitioner explained in his testimony:
1947My quick estimate, and what the engineering,
1954required all of that, surveys[,]
1960to[p]ographic surveys, could have been
1965anywhere from 50 to [$]75,000, maybe more.
1973While the actual costs to comply with the Districts RAI have not
1985been determin ed, Petitioner's testimony that the RAI
1993requirements were cost prohibitive is credited.
199919. On November 14, 2 011, the District wrote a letter to
2011the Department formally requesting a binding determination from
2019the Department as to whether the activities on the Property
2029qualify for the agricultural exemption afforded by sect ion
2038373.406(2) .
204020. After receiving the DistrictÓs request, Department
2047staff conducted a site visit of the Property on December 28,
20582011.
205921. Th e approximately 1.12 - acre open water ar ea resulting
2071from PetitionerÓs dredging and filling ranges from 4 to 6 feet
2082deep at the center, depending on the ground water level. At the
2094time of the DistrictÓs site visit , the central pond depth was
2105approximately four feet . December is the dry season in this
2116area of Florida and in 2011 there was a drought. The
2127DepartmentÓs survey of the Site shows a water depth of six feet.
213922. There has been some recruitment of wetland vegetation
2148in the shallower areas of the pond . In fac t, some of the
2162emergent vegetation is of higher quality than that which existed
2172prior to the dredging and filling, and there is evidence that
2183wildlife is utilizing it.
218723. In addition, Petitioner Ós activities included the
2195construction of berm s below the b isecting roadways that help
2206filter direct road run - off t hat previously washed into the S ite.
222024. The Site, however, has not been restored to a wetland
2231in any significant way. No regeneration is expected at
2240sustained depths of greater than two feet . The maximum
2250recommended depth for planting is one - and - one - half feet.
226325. The pond is fenced off, preventing the cattle from
2273direct pond access.
227626. Petitioner has spent over $12,000 landscaping and
2285putting in an irrigation system around the pond area. The
2295irrigation system is designed to water the landscaping,
2303including sapling live oaks and sod. Neither landscaping a pond
2313nor irrigating landscaping around a pond is typical for cattle
2323ponds. Petitioner has stated that he would someday like to
2333build a retirement home overlooking the pond.
234027. The irrigation system, like the watering troughs on
2349the upla nd portions of the Property, is serviced by a four - inch
2363diameter well.
236528. Generally , a four - inch well can produce 60 - 100 gallon s
2379per minute. The pond as constructed contain s approximately
2388100,000 gallons in the first four inches of water alone.
239929. The District Ós standard permitting allocation for
2407water withdrawal for cattle is 12 gallo ns of water per day.
2419Under t he DepartmentÓs best manageme nt p ractices rule , 5 / the
2432allocation is up to 30 gallons per head of cattle per day .
244530. On February 10, 2012, the Department rendered its
2454Preliminary Determination which concluded that PetitionerÓs
2460activities did not meet the requirements for an agricultu ral
2470exemption . Under the heading "Application of Statutory
2478Criteria, Ñ the Preliminary Determination stated:
2484Pursuant to Section 373.406(2) F.S., all of
2491the following criteria must be met in order
2499for the permitting exemption to apply.
2505(a) " Is the landow ner engaged in the
2513occupation of agriculture, silviculture,
2517floriculture, or horticulture? "
2520YES. The [Department's Office of
2525Agricultural Water Policy] finds that
2530[Petitioner] is engaged in the practice of
2537agriculture on 118 acres of agricultural
2543land in Sumter County, as evidenced by
2550their current agricultural land use
2555classification, the ongoing agricultural
2559production activities observed on site,
2564and the aforementioned cattle sale
2569receipts.
2570(b) " Are the alterations (or proposed
2576alterations) to the to pography of the land
2584for purposes consistent with the normal
2590and customary practice of such occupation
2596in the area? "
2599NO. [The Department] finds that the
2605construction of a cattle watering pond
2611within the footprint of a wetland is not a
2620normal and customary practice for the area
2627because:
26281. Cattle watering ponds are not normally
2635constructed within wetlands; and
26392. Cattle watering troughs were observed
2645in other upland locations throughout the
2651property, precluding the need for a catt le
2659pond in this location.
2663(c) " Are the alterations (or proposed
2669alterations) for the sole or predominant
2675purpose of impeding or diverting the flow
2682of surface waters or adversely impacting
2688wetlands? "
2689NO. (As to impeding or diverting surface
2696waters.) [The Department] finds that the
2702construction of a pond in the wetland was
2710not for the sole or predominant purpose of
2718impeding or diverting surface waters.
2723During the December 28, 2011 site visit,
2730[the Department's Office of Agricultural
2735Water Policy] staf f verified that the
2742post - development drainage patterns are
2748consistent with the pre - development
2754drainage patterns. Secondly, the wetland
2759is not connected to offsite drainage
2765systems, as it was severed in its entirety
2773by the construction of SR 469 and CR 71 0.
2783This occurred prior to [Petitioner] taking
2789ownership of the property. Lastly, the
2795entire farm's drainage system is gravity
2801driven, and is devoid of discharge pumps.
2808YES. (As to adversely impacting
2813wetlands.) [The Department] is aware that
2819the wetla nd was already of questionable
2826quality (see letter from the City of
2833Center Hill) when the pond was
2839constructed, given that the wetland was
2845severed and excluded from the larger
2851wetland system by the construction of SR
2858469 and CR 710. Nevertheless, [the
2864Dep artment] finds that the activity was
2871for the sole or predominant purpose of
2878adversely impacting the wetland, as the
2884character of the wetland was destroyed.
289031. In sum, the Preliminary Determination concluded that
2898PetitionerÓs dredging and filling activities did not qualify for
2907the agricultural exemption provided under section 373.406(2)
2914because the activities are not normal and customary and they
2924adversely impact ed wetlands.
292832. At the final hearing, however, the evidence indicat ed
2938that PetitionerÓs activities were normal and customary for
2946cattle operations in the area.
295133. While the water needs of PetitionerÓs cattle are
2960usually served by a four - inch well, t he pond constructed at the
2974Site has been an effective supplemental source of water for
2984PetitionerÓs cattle operations. When the well ran dry,
2992Petitioner used pump trucks to siphon water from the pond and
3003fill the upland troughs. Petitioner plans to put a pump in the
3015pond to supply water to his cattle , but has not yet done so.
302834. Man - made, belowground cattle - watering ponds are very
3039typical in Florida, especially in south and southwest Florida
3048because of the high water tables in the southern part of the
3060peninsula. 6 /
306335. Further, Ð [i]t is not uncommon practice for Florida
3073cattle ranchers to excavate cattle ponds, remove muck from
3082existing cattl e ponds, and/or grade side slopes of ponds in low
3094lying depressional areas to provide a safe and reliable water
3104source for their cattle.Ñ 7 /
311036. The fact that it is common for cattle ponds to be
3122built in low - lying areas was further demonstrated by aerial
3133p hotographs presented by PetitionerÓs witness, Mr. Modica , of
3142areas near the Property, including an approximately six - acre
3152pond off Palm Avenue (the Sanchez property) , a pond at a site
3164labeled Emory Lane , and a pond off CR 48 . While the ponds are
3178considere d by the District to be out of compliance on the
3190grounds that they may have adversely affected wetlands, their
3199existence shows that dredging and filling in low areas for
3209cattle ponds is common practice in the area. 8 /
321937. Although the pond is larger than needed because the
3229footprint of the dumping area was large, and Petitioner may have
3240some non - agricultural plans for the Site in the future, under
3252the facts and evidence as outlined herein, it is found that the
3264pond construc ted by Petitioner was for purposes consistent with
3274common practices for cattle operations in the area.
328238. On the issue of whether there was adverse impact to a
3294wetland, the evidence showed that Department changed its
3302position several times while drafting the Preliminary
3309Determination.
331039. Of the five drafts of the Preliminary Determination,
3319on the question (c) "[a]re the alterations (or proposed
3328alterations) for the sole or predominant purpose of . . .
3339adversely impacting wetlands?Ñ one draft stated:
3346UNS URE. (As to adversely impacting
3352wetlands.) Documentation shows a 2.47 acre
3358wetland impact area. This dredge and fill
3365activity was for the purpose of converting
3372the wetland to an open water and pasture
3380area. However, this remnant wetland area
3386was severe d and excluded from the larger
3394wetland system, as it was originally
3400impacted by the construction of SR 469 and
3408CR 710. Although wetland conditions prior
3414to ZagameÓs actions cannot be determined
3420with certainty, a letter from the City of
3428Center Hill indicat es questionable wetland
3434condition, which obfuscates remaining
3438quality and function.
344140. Another draft, in answering the same question, stated:
3450NO. (As to adversely impacting wetlands.)
3456In the opinion of the [Department], the
3463impacted remnant wetland wa s of questionable
3470quality (see letter from the City of Center
3478Hill) having been previously severed and
3484excluded from the larger wetland system, by
3491the construction of SR 469 and CR 710.
349941. Considering those factors addressed in the above -
3508quoted drafts o f the DepartmentÓs drafts of the Preliminary
3518Determination, as well as t he evidence of the condition of the
3530wetland when Petitioner began his clean up operations, it is
3540found that the predominant purpose and effect of PetitionerÓs
3549activities was to construc t a cattle pond and clean up a dumping
3562ground, not to adversely impact a wetland.
3569CONCLUSIONS OF LAW
357242. The Division of Administrative Hearings has
3579jurisdiction over the parties and the subject matter of this
3589proceeding, pursuant to sections 120.569, 120 .57(1), and
3597373.406(2), Florida Statutes .
360143. This review of PetitionerÓs qualification for an
3609exemption is de novo, as the DepartmentÓs Preliminary
3617Determination is proposed agency action. The request for a
3626hearing effectively rendered the agency action non - final and
3636triggered the de novo hearing. DepÓt of Transp. v. J.W.C. Co. ,
3647396 So. 2d 778, 787 ( Fla. 1 st DCA 1981).
365844. In this case , Petitioner is asserting that his
3667activities qualify for the exemption from Environmental Resource
3675Permitting pursuant to section 373.406(2), Florida Statutes .
3683Exceptions to the reg ulatory authority conferred by c hapters 373
3694or 403 are to be narrowly construed against the person who is
3706claiming the statutory exemption. Samara Dev. Corp. v. Marlow ,
3715556 So. 2d 1097, 1100 (Fla. 1990) .
372345. As the party claiming that he qualifies for the
3733exemption, Petitioner carries the Ðultimate burden of
3740persuasionÑ with regard to such qualification. J.W.C. Co . , 396
3750So. 2d at 787.
375446. Petitioner must show by a preponderance of the
3763evidence that his activities are exempt from regulation. See
3772§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based
3783upon a preponderance of the evidence, except in penal or
3793licensure proceedings or except as otherwise provided by statute
3802and shall be based exclusively on the evidence of record and on
3814matters officially recognized.")
381847. The basic permitting authority of the water management
3827d istricts is set forth in section 373.413, Florida Statutes ,
3837which provides :
3840Except for the exemptions set forth herein,
3847the governing board or the department may
3854require such permits and impose such
3860reasonable conditions as are necessary to
3866assure that the construction or alteration
3872of any stormwater management system, dam,
3878impoun dment , reservoir appurtenant work, or
3884works will comply with the provisions of
3891this part and applicable rules promulgated
3897thereto and will not be harmful to the water
3906resources of the District.
3910(e mphasis added).
391348. Impoundment is define d in section 3 73.403(3) as: Ðany
3924lake, reservoir, pond or other containment of surface water
3933occupying a bed or depression in the earthÓs surface and having
3944a discernible shoreline.Ñ The pond constructed by Petitioner is
3953therefore, an impoundment and, unless exempt, is subject to the
3963requirement of obtaining an environmental resource p ermit.
397149. Section 373.406(2) provides an exemption from
3978Environmental Resource Permitting for certain agricultural
3984activities.
398550. Prior to 2011, s ection 373.406(2) , provided:
3993N othing h erein, or in any rule, regulation,
4002or order adopted pursuant hereto, shall be
4009construed to affect the right of any person
4017engaged in the occupation of agriculture,
4023silviculture, floriculture, or horticulture
4027to alter the topography of any tract of land
4036for purposes consistent with the practice of
4043such occupation . However, such alteration
4049may not be for the sole or predominant
4057purpose of impounding or obstructing surface
4063waters .
406551. In 2011 , section 373 .406(2) was revised by chapter
40752011 - 165, Laws of Florida, shown with the new language
4086underlined and old language stricken, as follows:
4093Notwithstanding s. 403.927 , nothing herein,
4098or in any rule, regulation, or order adopted
4106pursuant hereto, shall be construed t o
4113affect the right of any person engaged in
4121the occupation of agriculture, silviculture,
4126floriculture, or horticulture to alter the
4132topography of any tract of land, including,
4139but not limited to, activities that may
4146impede or divert the flow of surface wat ers
4155or adversely impact wetlands, for purposes
4161consistent with the normal and customary
4167practice of such occupation in the area .
4175However, such alteration or activity may not
4182be for the sole or predominant purpose of
4190impeding impounding or diverting the fl ow of
4198obstructing surface waters or adversely
4203impacting wetlands. This exemption applies
4208to lands classified as agricultural pursuant
4214to s. 193.461 and to activities requiring an
4222environmental resource permit pursuant to
4227this part . This exemption does not apply to
4236any activities previously authorized by an
4242environmental resource permit or a
4247management and storage of surface water
4253permit issued pursuant to this part or a
4261dredge and fill permit issued pursuant to
4268chapter 403 . This exemption has retroacti ve
4276application to July 1, 1984.
428152. S ection 373.406(2) has not changed since the 2011
4291revisions. By its terms, the exemption provided in section
4300373.406(2) has retroactive application. Furthermore, as
4306Petitioner is, in essence, an applicant for the exe mption,
4316current law should apply. See Lavernia v. DepÓt of ProfÓl Reg. ,
4327B d . of Med . , 616 So. 2d 53 (Fla. 1st DCA 1993)(law for
4342determining applications is the statute in effect at the time of
4353final determination ).
435653. For many years prior to 2011 , the Department had the
4367authority to review and give non - binding opinions at the request
4379of a water management district concerning whether claimed
4387alterations qualified for an agricultural exemption under
4394section 373.406(2) . However, along with other rev isions i n
44052011, chapter 2011 - 165, Laws of Florida, authorized t he
4416Department to make binding determinations , at the request of a
4426water management district or a landowner, regarding whether
4434alterations or activit ies qualif y for an exemption . See
4445§ 373.407, Fla. Stat.
444954. Two threshold issues for an exemption under section
4458373.406(2) are: (1) is the land classified as agricultural
4467pursuant to 193.4 61 , Florida Statutes , and (2) is the person
4478whose activities are in question engaged in agriculture. The
4487parti es stipulated that both of these threshold requirements
4496were met in this case.
450155. The other two criteria, which are the ones at issue in
4513this case, are whether the activity (1) is for purposes
4523consistent with normal and customary agricultural practices f or
4532the area and (2) is not for the sole or predominant purpose of
4545adversely impacting wetlands.
454856. As noted in the Findings of Fact, above, as a matter
4560of fact, it has been found that Petitioner's activities were
4570normal and customary and were not for the sole or predominant
4581purpose of adversely impacting wetlands. The factual findings
4589are consistent with applicable law.
459457. U nder the facts and circumstances of this case, it is
4606appropriate to analyze the impact to the wetlands criteria
4615first. The 2011 revisions to section 373.406(2) specifically
4623exempt from regulation those agricultural alterations or
4630activities " that may impede or divert the flow of surface waters
4641or adversely impact wetlands , for purposes consistent with the
4650normal and customary practice of such occupation in the area . .
4662. [as long as] such alteration [s] or activit [ies] [ are ] . . .
4678not . . . for the sole or predominant purpose of impeding
4690impounding or diverting the flow of obstructing surface waters 9 /
4701or adversely impacting wetl ands. "
470658. The words Ð predominant Ñ and Ð purpose," as used in
4718section 373. 406(2), Florida Statutes (2007) , prior to the 2011
4728revisions were construed in Duda and Sons, Inc. v. St. Johns
4739River Water Management District , 17 So. 3d 738 (Fla. 5 th DCA
47512009) . As the context of those terms as used in the current
4764version of section 373.406(2) is the same, the interpretation of
4774those terms in Duda and Sons, Inc. , supra ( Duda I ), is still
4788relevant. There, the Fifth District Court of Appeal agreed with
4798the water management district and administrative law judgeÓs
4806interpretation of the term ÐpurposeÑ within the context of
4815section 373.406(2) to mean the actionÓs objective effect or
4824function, as opposed to the subjective intent of the landowner in
4835undertaking the act ion . Duda I , 17 So. 3d at 742. The Fifth
4849District Court of Appeal, however, rejected the water
4857managementÓs definition of the term ÐpredominantÑ as Ðmore than
4866incidental,Ñ and explained:
4870ÐPredominantÑ does not mean Ðmore than
4876incidental.Ñ There are many gradations
4881between ÐpredominantÑ and Ðincidental.Ñ An
4886item can be Ðmore than incidentalÑ but not
4894Ðpredominant. For example, if an individual
4900had four equal sources of income totaling
4907$100,000/year, all four sources of income
4914would be Ðmore than incident al.Ñ However,
4921none of the four would be a predominant
4929source of income . Similarl y, an alteration
4937of topography may have more than an
4944incidental effect of impounding or
4949obstructing surface waters even though that
4955was not the predominant effect.
4960The lack o f merit in the District's argument
4969is further demonstrated by the fact that
4976pursuant to section 373.406(6) , the District
4982has already exempted from regulation any
4988activity which has "only minimal or
4994insignificant individual or cumulative
4998adverse effects on the water resources of
5005the district" for both agricultural and non -
5013agricultural activities . [footnote omitted]
5018The District's interpretation of section
5023373.406(2) , if accepted, would render the
5029agricultural exemption virtually
5032meaningless . As conceded b y the District at
5041oral argument, an alteration of topography
5047that had the effect of only incidentally
5054impounding or obstructing surface waters
5059would, in almost all cases, already be
5066exempt from regulation pursuant to
5071subsection (6) -- regardless of whether the
5078property owner was engaged in the occupation
5085of agriculture. [ 10 / ]
5091* * *
5094In its brief, Duda contends that the
5101primary purpose of its drainage ditches was
5108to lower the level of the groundwater table
5116so as to enhance agricultural productivity .
5123Section 3 73.406(2) provides an exception to
5130the agricultural exemption for the
5135impounding or obstructing of surface waters
5141-- not ground water . [footnote omitted]
5148Accordingly, if Duda constructed a drainage
5154ditch for a purpose consistent with the
5161practice of agri culture and if the
5168predominant effect of the drainage ditch was
5175to lower the groundwater table level, then
5182the construction of the drainage ditch would
5189be exempt from the District's permitting
5195requirements even if the ditch had a more
5203than incidental effec t of impounding or
5210obstructing surface waters.
5213Duda I , 17 So. 3d 743 - 744. Cf. Fla. Admin. Code R. 5M -
522815.001(3)( effective 10/14/2012, subsequent to Duda I and one day
5238prior to the last day of the final hearing )( " Sole or predominant
5251purpose [means] [t]he primary function of the activity in
5260question").
526259. Similarly, in this case, while there may have been
5272more than an incidental effect on a wetland, the evidence showed
5283that PetitionerÓs activities were not for the sole or
5292predominant purpose of adversely impact ing a wetland, but rather
5302were primarily undertaken to construct a cattle pon d and clean
5313up a dumping ground .
531860. This conclusion is made with due regard for the
5328elevated legal status and protection that Florida's wetlands
5336have deservedly received u nder state and federal laws enacted in
5347the 1980's and 90's . 11 /
535461. In recognition of these wetland protections , in a
5363subsequent appeal involving a substantive enforcement action
5370against A. Duda and Sons, Inc., in A. Duda and Sons, Inc. v. St.
5384Johns River Water Management District , 22 So. 3d 622, 623 (Fla.
53955th DCA 2009)( Duda II ), 12 / the Fifth District Court of Appeal
5409observed:
5410. . . Duda I did not address the interplay
5420between section 373.406(2) and language from
5426the Warren S. Henderson Wetlands Protection
5432Act, chapter 84 - 79, Laws of Florida, now
5441codified at sections 403.927 (2) & (4)(a) ,
5448Florida Statutes. Those provisions
5452virtually eliminate the agricultural
5456exemption as it applies to alterations
5462impacting wetlands. Under section 403.927 ,
5467agricultural act ivities that impede or
5473divert the flow of surface waters even
5480incidentally are not exempt from regulation
5486if they impact wetlands . Id .
549362. T he 2011 revisions to the agricultural exemption found
5503in 373.406(2), however, were made after the Fifth District's
5512observations in Duda II . Contrary to Duda II 's suggestion that
5524an agricultural exemption is unavailable for alterations that
5532impact wetlands, t he initial sentence of the 2011 revisions
5542begins " N otwithstanding s. 403.927 , " and then specifi cally
5551includes " activities that may . . . adversely impact wetlands "
5561within the activities contemplated for exemption from
5568regulation . See § 373.406(2), Fla. Stat. (first sentence).
557763. Further, denial of an exe mption for Petitioner's
5586activities under the facts and circumstances in this case would
5596not promo te wetland protection. Rather, it would require the
5606application of regulations in a manner that would interfere with
5616improvements made to a remnant wetland dumping ground that has
5626been entirely severed from its adjacent wetlands since prior to
56361973. Despite vast and important legislation protecting
5643wetlands, an exemption is contemplated for qualifying activities
5651that do not have a predominant purpose of adversely affecting
5661wetlands.
566264. As t he evidence demonstrated that the predominant
5671purpose of Petitioner's activities was the constructi on of a
5681cattle pond along with the clean up , and not to adversely affect
5693wetlands , as long as those activities are for purposes
5702consistent with the normal an d customary practice of such
5712occupation in the area , Petitioner should be entitled to the
5722exemption .
572465. This Recommended Order undertook analysis of the
5732adverse imp act to wetlands first in order to avoid duplicative
5743use of wetland criteria in determining whether PetitionerÓs
5751activities qualify for the exemption. The DepartmentÓs
5758Preliminary Determination, however, uses the fact that
5765PetitionerÓs activities were in a wetland in both the Ðadverse
5775impact to wetlandÑ analysis as well as its Ðnormal and customary
5786practiceÑ inquiry.
578866. In fact, even in its draft of the Preliminary
5798Determination where the Department found that PetitionerÓs
5805alterations were not undertaken Ðfor the sole or predominant
5814purpose of . . . adversely im pacting wetlands,Ñ the Department
5826found in its Ðnormal and customaryÑ analysis that Ðc attle
5836watering ponds are not normally constructed within wetlands . Ñ
584667. The undersigned finds that duplicative use of the fact
5856that wetlands were impacted is contrary to the inquiry
5865contemplated under the 2011 revisions to section 373.40 6(2) ,
5874which by their terms , anticipate that a wetland would be
5884involved in an agricultural activity for which an exemption from
5894wetland regulation is requested.
589868. Even if it were approp riate to consider that the
5909activity occurred in a wetland under the Ðnormal and customaryÑ
5919inquiry , a s noted in the Findi ngs of Fact, above, the evidence
5932demonstrated, as a matter of fact, that cattle ponds in low -
5944lying areas are normal and customary for cattle operations in
5954the area .
595769. The Department further suggests that PetitionerÓs
5964activities were not normal and customary because they are
5973inconsistent with best management practices adopted by the
5981Department. As part of the revisions made in c hapt er 2011 - 165,
5995Laws of Florida, the de finition of "agricultural activities"
6004found in section 403.927(4)(a) was also revised, shown with new
6014language underlined and old language stricken, as follows:
6022ÐAgricultural activitiesÑ includes all
6026necessary farming an d forestry operations
6032which are normal and customary for the area,
6040such as site preparation, clearing, fencing,
6046contouring to prevent soil erosion, soil
6052preparation, plowing, planting cultivating,
6056harvesting, fallowing, leveling,
6059construction of access roa ds, and placement
6066of bridges and culverts , and implementation
6072of best management practices adopted by the
6079Department of Agriculture and Consumer
6084Services or practice standards adopted by
6090the United States Department of
6095AgricultureÓs Natural Resources Conse rvation
6100Service , provid ed such operations are not
6107for the sole or predominant purpose of
6114impeding do not impede or diverting divert
6121the flow of surface water or adversely
6128impacting wetlands .
613170. The Department argues that reference to best
6139management practices in section 403.927(4)(a) means that
6146activities that do not meet those standards are not "normal and
6157customary" within the meaning of section 373.406(2). In light
6166of the plain terms of the s tatute, 13 / however, the Department's
6179argument is unpersuasive. Rather than restricting which
6186practices are "normal and customary," the conjunctive "and"
6194actually expands the list of "agricultural activities"
6201previously set forth in section 403.927(4)(a ) to also include
6211best management practices . 14 /
621771. While not all aspects of PetitionerÓs pond are
6226typical, t he evidence demonstrated that PetitionerÓs activities
6234resulted in a cattle pond that was useful to his cattle
6245operations and were for Ð purposes consist ent with the normal and
6257customary practice of such occupation in the area Ñ within the
6268meaning of section 373.406(2).
6272RECOMMENDATION
6273Based on the foregoing Findings of Fact and Conclusions of
6283Law, it is recommended that the Florida Department of
6292Agriculture and Consumer Services enter a final o rder finding
6302that the activities on PetitionerÓs property addressed in this
6311case are exempt pursuant to section 373.406(2), Florida
6319Statutes.
6320DONE AND ENT ERED this 1st day of February , 2013 , in
6331Tallahassee, Leon County, Florida.
6335S
6336JAMES H. PETERSON, III
6340Administrative Law Judge
6343Division of Administrative Hearings
6347The DeSoto Building
63501230 Apalachee Parkway
6353Tallahassee, Florida 32399 - 3060
6358(850) 488 - 9675
6362Fax Filing (850) 921 - 6 847
6369www.doah.state.fl.us
6370Filed with the Clerk of the
6376Division of Administrative Hearings
6380t his 1st day of Febru ary, 2013 .
6389ENDNOTES
63901 / Unless otherwise noted, citations to statutes and rules are
6401to their current, 2012, versions.
64062 / The Property contains several parcels, some owned by Ramaela
6417of Clermont Limited Partnership (Ramaela) and some owned by
6426Menaleous Land Group LLC (Menaleou s). RamaelaÓs partne rs are
6436two trusts. Petitioner is trustee of one of RamaelaÓs partners
6446and is a managing member of Menaleous.
64533 / The wetland was located on the Ramaela property, but for
6465purposes of the exemption determination at issue, has been
6474trea ted as part of the entire 118 acres of Property.
64854 / See Fl a. Admin . Code R . 62 - 340.450(1).
64985 / See Fla. Admin. Code R. 5M - 11 .
65096 / This finding is extracted from the testimony of the
6520DepartmentÓs Environmental Administrator William Bartnick, who
6526added , Ðbut the [cattle ponds] IÓve seen are almost always
6536constructed in uplands and our manual says 50 f eet away from the
6549well and edge [of wetlands].Ñ See Transcript from August 8,
65592012, p. 132. While Mr. BartnickÓs testimony reflected in the
6569finding is cre dited, his observations regarding the locations of
6579ponds were contradicted by more persuasive evidence indicating
6587that cattle ponds are commonly located in low - lying areas.
65987 / See Exhibit P - 1A (DepartmentÓs Non - Binding Written Summary
6611and Opinion on Louis M. Sanchez, dated April 25, 2003, p. 2) .
66248 / Mr. Modica also testified that he had four ponds that had
6637been dug in wetlands on his own property in the area and that
6650there were a number of ponds dug in wetlands on the Disney
6662Wilderness Preserve (previously, the Walker Ranch property) that
6670the Nature Conservancy which manages the property had matured
6679into stable systems that they decided not to restore. While
6689details as to the dat e of construction of these ponds was not
6702provided, Mr. ModicaÓs testimony provided additional support for
6710the proposition that dredging of cattle ponds in wetlands has
6720been a common practice for the area in the past.
67309 / Impeding or diverting surface wate rs is not at issue. In its
6744Preliminary Determination, the Department found that the
6751construction of a pond in the wetland was not for the sole or
6764predominant purpose of impeding or diverting surface waters.
6772The evidence in this case supports that conclus ion, as well as
6784the Department's finding in its Preliminary Determination that
"6792the post - development drainage patterns are consistent with the
6802pre - development drainage patterns . . . [and that] the wetland
6814[was] not connected to offsite drainage systems, a s it was
6825severed in its entirety by the construction of SR 469 and CR
6837710, . . . prior to [Petitioner] taking ownership of the
6848property."
684910 / Th e exemption for minimal or insignificant impacts on water
6861resources referenced by the Fifth District was unchanged by the
68712011 revisions and is still found in the present version of
6882section 373.406(6), Florida Statutes.
688611 / As accurately noted in the Department's Proposed Recommended
6896Order, in 1984 , Florida adopted the Henderson Wetland Protection
6905Act, which expanded the scope of wetland regulation in the state
6916to include agricultural wetlands connected to state waters. Ch.
692584 - 79, Laws of Fla. Congre ss passed the Food Security Act of
69391985 (PL 99 - 198; 16 U.S.C §§3801 - 3862), section 3821 of which
6953required that farmers receiving USDA benefits to refrain from
6962cultivating wetlands. In 1986, the Florida legislature adopted
6970section 373.414(1), Florida Statu tes, which directed water
6978management districts to adopt rules relating to the regulation
6987of isolated wetlands. Ch. 86 - 186, § 4, Laws of Fla. And in
70011993, the Florida legislature transferred and amended dredging
7009and filling criteria from chapter 403 to ch apter 373, Florida
7020Statutes, which accomplished a substantial reorganization of
7027wetland regulation in Florida, and placed all wetlands,
7035including isolated wetlands, under the dredge and fill
7043regulatory authority of the Department of Environmental
7050Protectio n and water management districts. See Ch. 93 - 213, Laws
7062of Fla.
706412 / Duda I , supra , involved a final order entered by an
7076administrative law judge (ALJ) denying the appellant's
7083challenges to certain adopted rules, statutory interpretations ,
7090and policies. D uda II was an appeal from a final order from the
7104water management district adopting the ALJ's recommended order
7112which required appellant to either restore impacted wetlands or
7121apply for after - the - fact permits.
712913 / "One of the most fundamental tenets of st atutory
7140construction requires that the courts give statutory l anguage
7149its plain and ordinary meaning, unless words are defined in the
7160statute or by the clear intent of the Legislature." Duda I , 17
7172So. 3d at 742.
717614 / This conclusion is consistent with the Department's new rule
7187that defines "normal and customary practice in the area" as
"7197[g]enerally accepted agricultural activities" without reference
7203to best management practices. See Fla. Admin. Code R. 5M -
721415.001(2).
7215COPIES FURNISHED :
7218Carol Ann Forthman, Esquire
7222Department of Agriculture
7225and Consumer Services
7228407 South Calhoun Street
7232Tallahassee, Florida 32399
7235Joseph E. Zagame
7238230 Mohawk Road
7241Clermont, Florida 34715
7244Ronda L. Moore, Esquire
7248Southwest Florida
7250Water Management District
72537601 Highway 301 North
7257Tampa, Florida 33637 - 6759
7262Lorena Holley, General Counsel
7266Department of Agriculture
7269and Consumer Services
7272407 South Calhoun Street, Suite 520
7278Tallahassee, Florida 32399 - 0800
7283Honorable Adam Putnam, Com missioner
7288Department of Agriculture
7291and Consumer Services
7294The Capitol, Plaza Level 10
7299Tallahassee, Florida 32399 - 0810
7304NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
7310All parties have the right to submit written exceptions within
732015 days from the date of this Recommended Order. Any exceptions
7331to this Recommended Order should be filed with the agency that
7342will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/01/2013
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 12/03/2012
- Proceedings: Respondent Florida Department of Agriculture and Consumer Services, Proposed Recommended Order filed.
- PDF:
- Date: 11/29/2012
- Proceedings: Respondent, Florida Department of Agriculture and Consumer Services, Proposed Recommended Order filed.
- PDF:
- Date: 11/29/2012
- Proceedings: Southwest Florida Water Management District's Proposed Recommended Order filed.
- Date: 10/30/2012
- Proceedings: Transcript of Proceedings Volume I-II (not available for viewing) filed.
- Date: 10/15/2012
- Proceedings: CASE STATUS: Hearing Held.
- Date: 08/21/2012
- Proceedings: Transcript Volume I-II (not available for viewing) filed.
- PDF:
- Date: 08/17/2012
- Proceedings: Florida Department of Agriculture and Consumer Services Notice of Filing of Draft 373.406(2), F.S., Exemption Determinations filed.
- PDF:
- Date: 08/14/2012
- Proceedings: Order Requiring Stipulation and Allowing Limited Discovery for Additional Day of Hearing.
- PDF:
- Date: 08/14/2012
- Proceedings: Order Scheduling Additional Day of Final Hearing (hearing set for October 15, 2012; 9:00 a.m.; Leesburg, FL).
- Date: 08/14/2012
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- Date: 08/08/2012
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
- PDF:
- Date: 08/03/2012
- Proceedings: Southwest Florida Water Management District's Witness List filed.
- PDF:
- Date: 08/01/2012
- Proceedings: Florida Department of Agriculture and Consumer Services Witness List filed.
- PDF:
- Date: 07/06/2012
- Proceedings: Southwest Florida Water Management District's Notice of Taking Deposition Duces Tecum (of J. Zagame, Sr.) filed.
- PDF:
- Date: 07/02/2012
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 8, 2012; 9:30 a.m.; Leesburg, FL).
- PDF:
- Date: 06/27/2012
- Proceedings: Petition Requesting a Continuance of the Hearing Scheduled for July 10, 2012 filed.
- PDF:
- Date: 06/13/2012
- Proceedings: Order on Petition Objection to Southwest Florida Water Management District Petition for Leave to Intervene.
- PDF:
- Date: 06/06/2012
- Proceedings: Attachment #3 Addition to Previously Filed Petition Objecting to SWFWMD Petition for Leave to Intervene filed.
- PDF:
- Date: 05/24/2012
- Proceedings: Petition Objecting to Southwest Florida Water Management District Petition for Leave to Intervene filed.
- PDF:
- Date: 05/16/2012
- Proceedings: Southwest Florida Water Management District's Motion to Dismiss Amended Petition filed.
- PDF:
- Date: 05/10/2012
- Proceedings: Order Granting Petition to Intervene (Southwest Florida Water Management District).
- PDF:
- Date: 05/09/2012
- Proceedings: Southwest Florida Water Management District's Petition for Leave to Intervene filed.
- PDF:
- Date: 05/03/2012
- Proceedings: Order Re-scheduling Hearing (hearing set for July 10, 2012; 9:30 a.m.; Leesburg, FL).
- PDF:
- Date: 05/02/2012
- Proceedings: Letter to Ms. Llado from J. Zagame regarding available dates filed.
Case Information
- Judge:
- JAMES H. PETERSON, III
- Date Filed:
- 04/16/2012
- Date Assignment:
- 04/16/2012
- Last Docket Entry:
- 05/29/2013
- Location:
- Leesburg, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Carol Ann Forthman, Esquire
Address of Record -
Ronda L. Moore, Esquire
Address of Record -
Joseph E. Zagame
Address of Record