15-005750 Paul And Kathleen Still vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Tuesday, February 2, 2016.

Summary: Petitioners did not demonstrate that the installation of ditch plugs for rehydrating land to enhance production of cypress trees is a normal and customary silvicultural practice in the area. Exemption under section 373.406(2) is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL AND KATHLEEN STILL ,

Petitioner s ,

vs. Case No. 1 5 - 5750

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES ,

Respondent .

/

RECOMMENDED ORDER

Pursu ant to notice, a final hearing was held in this case

on December 7, 2015, in Tallahassee, Florida, before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner s : Paul Still , pro se

14167 Southwest 101st Avenue

Starke , Florida 3 2091

For Respondent: Lauren Brothers , Esquire

Department of Agriculture

and Consumer Services

Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

STATEMENT OF THE ISSUE

Whether Petitioner s Ó installation of ditch plugs on their

property qualifies for an agricultural exemption from the

requirement to obtain an environmental resource permit pursuant

to s ection 373.406(2), Florida Statutes.

PRELIMINARY STATEMENT

On September 14, 2015, Respondent, Department of

Agriculture and Consumer Services ( the Department) , issued a n

A mended Binding Determination to Petitioner s , Paul and Kathleen

Still (Petitioner s ). The Binding Determination found that

PetitionersÓ construction of ditch plugs in existing drainage

ditches was not a normal and customary practice for silviculture

being conducted in the area, and therefore did not meet the

standards for an agricultural ex emption under section

373.406(2).

Petitioner s timely filed a request for an administrative

hearing which was referred to the Divis ion of Administrative

Hearings . The final hearing was thereafter noticed to commence

on December 7, 2015.

On December 2, 20 15, a Joint Stipulation of Parties was

filed. The stipulated facts have been used in the preparation

of this Recommended Order, either verbatim or with changes for

style or continuity.

The final hearing commenced as scheduled on December 7,

2015, and was completed on that date. Although the hearing was

originally scheduled as a video teleconference in Tallahassee

and Gainesville, Florida, the parties and their witnesses agreed

to appear in Tallahassee.

At the hearing, and at the request of the undersigned , the

order of presentation was altered so that the Department

presented witnesses and exhibits first, followed by Petitioner.

The Department called as witnesses: Patrick Webster , the

s enior p rofessional e ngineer for the Suwannee River Water

Management Di strict ( District ); Jeffrey Vowell, a ssistant

d irector for the DepartmentÓs Division of Forestry, Florida

Forest Service; Bill Bartnick, a Department environmental

analyst ; and Andy Lamborn, who was at all time relevant hereto,

the county forester for Bradf ord County and Baker County .

Department Exhibits 1 through 4 were received in evidence.

Exhibit 1 included subparts (a) through (i), and Exhibit 3

included subparts (a) through (d). As such, the Department

introduced 17 individual exhibits, which were p re - tabbed in the

DepartmentÓs exhibit binder as tabs 4 through 20.

Petitioner , Paul Still, testified on h is own behalf, and

re called Mr. Webster; Mr. Bartnick; and Mr. Vowell as witness es .

Petitioners Ó Exhibits 1, 2, 4 - 7, 9, 10, 18, 20, 21, 23, and 24

wer e received in evidence.

A two - volume Transcript was filed on December 28, 2015 . By

agreement of the parties, Proposed Recommended Orders were due

on January 11, 2016 ; we re timely filed by both parties; and have

been considered in the preparation of this Recommended Order.

References to statutes are to Florida Statutes (2015) ,

unless otherwise noted.

FINDINGS OF FACT

1. Petitioners, Paul and Kathleen Still (Petitioners) , own

a parcel of p roperty c omprised of 118 acres located within

Section 3 3, Township 6 South, Range 2 1 East, in Bradford County,

Florida, approximately six miles southwest of Starke, Florida

(the Property).

2 . The Department is the state agency authorized under

section 373.407, Florida Statutes, to make binding

determinations at the req uest of a water management d istrict or

landowner as to whether an existing or proposed activity

qualifies for an agricultural - related exemption from

environmental resource permitting, pursuant to section

373.406(2).

3 . The Property is classified as agricu ltu ral by the

Bradford Count y Property Appraiser. A county - maintained dirt

road, S outhwest 101st Avenue, forms the western boundary of the

Property, and Lake Sampson forms the eastern boundary of the

Property. Petitioners have owned the Property since 19 96 , and

currently reside on the P roperty .

4. A d rainage ditch runs through the P roperty from

S outhwest 101st Avenue to Lake Sampson . The evidence suggests

that it was originally constructed in the 1960s, was dug through

wetlands and uplands, and serves t o drain the area west of

S outhwest 101st Avenue. The ditch had the effect of draining

some of the wetlands that had previously existed on the

Property.

5 . The drainage ditch ends in the Northwest corner of the

wetland above ditch plug 3, at which point w ater flows east and

then north , eventually flowing into Lake Sampson north of th e

Property. The wetland above ditch p lug 3 was a natural wetland

which was likely part of Lake Sampson before Lake Sampson was

partially drained in 1887. At some point , a low berm was pushed

around part s of this wetland. Prior to PetitionersÓ ownership ,

the berm was breached a nd the wetland drained. Ditch p lug 3 was

in stalled in this breach. Ditch p lug 3 restored water to the

same level as was present when the wetland was p art of Lake

Sampson.

6. The Property contains stands of planted and naturally -

regenerating pine, natural cypress, and a stand of cypress trees

planted by Petitioners. Cypress is present on 43 acres of the

Property, with more than 50 percent of that area having been

planted.

7 . The density at which the cypress was planted will

require that the stand be thinned. Most of the thinned cypress

trees will be sent off to be turned into mulch. Some will be of

a size that it can go into saw timber.

8 . Silvicu lture has been defined in several ways :

A. The United States Department of Agriculture and the

Department have, on their websites defined silviculture as Ðthe

art and science of controlling the establishment, growth,

composition, health, and quality of forest and woodland

vegetation to meet the diverse interests of landowners and a

wide variety of objectives.Ñ

B. The U nited States Forest Service website defines

silviculture as Ðthe art and science of controlling the

establishment, growth, composition, health and quality of

forests and woodlands to meet the diverse needs and values of

landowners and society on a sustainable basis.Ñ

C. Florida Administrative Code Rule 5I - 2.003(29) defines

silviculture as Ða forestry operation dealing with the

establishm ent, development, reproduction, and care of forest

flora and fauna.Ñ

D. The DepartmentÓs Silviculture Best Management

Practices, adopted in r ule 5I - 6.002, defines silviculture as Ða

process, following accepted forest management principles,

whereby the tr ees constituting forests are tended, harvested and

reproduced.Ñ

9 . Production of cypress for lumber and mulch is a

silvicultur al and agricultur al activity. PetitionersÓ

production of cypress for lumber and mulch constitutes a

silvicultur al operation. Th e production of cypress is enhanced

by periodic inundation to control hardwood species of competing

trees.

10 . Starting in 2004, Petitioner s began to plan for the

installation of ditch plugs on the Property, and shortly

thereafter installed ditch plug 3, which is not in wetlands.

That plug was short - lived, being removed prior to 2006 when

Petitioner s started getting g roundwater infiltration into their

shallow drinking water well.

11 . At some time in 2006 or 2007, Petitioners reinstalled

ditch plug 3.

12 . In 2009 , at the request of Petitioners, a preliminary

field review was conducted by staff of the District to discuss

the potential to install ditch plugs on the Property. Based on

the preliminary investigation , it was determined that additional

anal ysis would be needed to make sure that the proposed plugs

would not have offsite and upstream drainage problems .

13 . Ditch p lugs 1 and 2 were installed in stages beginning

in 2011. Construction of the ditch plugs was done in stages to

e nsure that no off site impacts would occur. There is no

evidence in this case to suggest that the ditch plugs have

resulted in any offsite and upstream drainage problems.

14 . Petitioners assert that the ditch plugs were installed

to return water to wetlands that had been drained so as to

enhance the production of cypress in those wetlands.

Petitioners also admit that the ditch plugs will also have the

effect of mitigating for sediment eroding from Southwest 101st

Avenue .

15 . On November 5, 2014 , the District notified P etitioners

that it had come to the attention of the District that the ditch

plugs may have been installed on the Property without proper

authorization .

16 . At some time after November 5, 2014, Petitioners

requested that the District provide notification o f the

applicability of one or more of the exemptions in section

373.406 to the installation of the ditch plugs on their

P roperty.

17 . On April 24, 2015, t he District requested additional

information in support of PetitionersÓ request, and advised

Petit ioners that the dit ch plugs were not exempt under s ection

373.406(2) because the predominant purpose of the ditch plugs

was to impede or divert the flow of surface water. The District

further advised Petitioners that the ditch plugs may be eligible

for ex emption under section 373.406(9), which exempts measures

having the primary purpose of environmental restoration or water

quality improvement on agricultural lands where these measures

have minimal or insignificant adverse impact on the water

resources of the state.

18 . On June 4, 2015, a s a result of the DistrictÓs

April 24, 2015 , letter , Petitioners request ed a binding

determination as to the applicability of the section 373.406(2)

agricultural exemption.

19 . On June 18, 2015, the Department conducte d a site

visit. According to Mr. Lamborn, the county f orester for Baker

and Bradford c ounties, who wrote the Stewardship Forest

Management Plan for the Property and has visited the Property

several times, the Property is not a typical timber operation .

M r. Lamborn noted that Petitioners were the only landowners

during his time as a county forester that identified soil and

water conservation as their primary management goal for a forest

stewardship plan.

20 . Mr. Vowell has never seen ditch plugs used in a

silvicultural operation in the manner that Petitioners have used

them on their Property.

21 . Mr. Bartnick testified that the Department has never

issued an agricultural determination providing an exemption for

ditch plugs in wetlands.

22 . In coming t o its Binding Determination, the Department

reviewed , among other information, correspondence between t he

District and the Petitioners; the Silvicultural Best Management

Practices manual (2008); current and historical aerial

photography of the Property ; a USDA Soil Survey map; the 2015

Bradford County Property Appraiser Information Card ; the

National Wetland Inventory Map; and the Florida Forest Service

Stewardship Management Plan. The review of the request for a

Binding D etermination substantially com plie d with the

requirements of Florida Administrative Code Chapter 5M - 15.

23 . On September 14, 2015 , the Department applied the

three - part test in r ule 5M - 15 .005 , and issued its Binding

Determination which concluded that PetitionerÓs activities did

not meet the requirements for an agricultural exemption . Under

the heading "Application of Statutory Criteria,Ñ the Binding

Determination provided that:

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

the following criteria must be met in order

for the permitting exem ption to apply.

(a) " Is the landowner engaged in the

occupation of agriculture, silviculture,

floriculture, or horticulture? "

YES. FDACS - Florida Forest Service finds

that Mr. Paul Still is engaged in the

occupation of silviculture.

(b) " Are the alte rations (or proposed

alterations) to the topography of the land

for purposes consistent with the normal

and customary practice of such occupation

in the area? "

NO. FDACS - Florida Forest Service finds

that the construction of the ditch plugs

are not a norm al and customary practice

for silviculture being conducted in the

area. Normal and customary silviculture

would typically not include the plugging

of existing ditches. In fact,

silviculture in Florida often necessitates

some level of drainage to make wet ter

sites more accessible and therefore more

productive . Based on his experience,

Mr. Lamborn explained that Ðconservation

of soils and water resourcesÑ, as the main

component of a Stewardship Plan is not

customary. Moreover, the 2008

Silviculture Best M anagement Practices

manual does not list ditch plugs installed

in wetlands or in large ditches connected

to wetlands, as a viable practice. The

reference to ditch plugs in the 2008

Silviculture Best Management Practices

m anual is for Ðroad - sideÑ ditches a nd has

to do with the entrapment and dispersion

of sediment and the reduction of ditch -

flow velocity, not hydrologic restoration.

(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? "

Because the exemption in section

373.406(2), F.S., requires an affirmative

answer to all these criteria, and we have

already found that the alterations are not

consistent with normal and customary

practi ce of such occupation in the area

(see (b) above), there is no need to

address this issue.

24 . In sum, the Binding Determination concluded the

installation of ditch plugs in Petitioners Ó particular

circumstance did not qualify for the agricultural exemp tion

under section 373.406(2) , because such is not a normal and

customary practice for silviculture being conducted in the area .

25 . Petitioners asserted that the DepartmentÓs

determination reflected a ÐbiasÑ towards pine production, and

did not conside r the requirements of cypress production. Much

of the testimony regarding customary silvicultural practices was

provided by Mr. Vowell. Mr. Vowell has worked with hundreds of

small, private, non - in dustrial forest owners, and was clearly

well - versed in pi ne production. He described his experience

with the production of cypress as Ðvery little.Ñ

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to sections 1 20.569, 120.57(1), and

373.406(2), Florida Statutes (2015) .

27 . This review of PetitionerÓs qualification for an

exemption is de novo, as the DepartmentÓs Binding Determination

is proposed agency action. The request for a hearing

effectively rendered t he agency action non - final and triggered

the de novo hearing. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d

778, 787 ( Fla. 1st DCA 1981).

28 . In this case , Petitioner s are asserting that their

activities qualify for the exemption from Environmental Resour ce

Permitting pursuant to section 373.406(2) . 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, 1 100 (Fla. 1990).

29 . As the part ies claiming that they qualif y for the

exemption, Petitioner s carr y the Ðultimate burden of persuasionÑ

with regard to such qualification. J.W.C. Co . , 396 So. 2d at

787.

30 . Petitioner s must show by a preponderance of t he

evidence that their 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 sh all be based exclusively on the evidence of record and on

matters officially recognized.")

31 . The basic permitting authority of the water management

d istricts is set forth in section 373.413, which provides:

Except for the exemptions set forth herein,

th e 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,

impoundment, reservoir appurtenant work, or

works wi ll comply with the provisions of

this part and applicable rules promulgated

thereto and will not be harmful to the water

resources of the District.

32 . Section 373.406(2) provides an exemption from

e nvironmental r esource p ermitting for certain agricultu ral

activities , and provides that:

Notwithstanding s. 403.927, nothing herein,

or in any rule, regulation, or order adopted

pursuant hereto, shall be construed to

affect the right of any person engaged in

the occupation of agriculture, silviculture,

floric ulture, or horticulture to alter the

topography of any tract of land, including,

but not limited to, activities that may

impede or divert the flow of surface waters

or adversely impact wetlands, for purposes

consistent with the normal and customary

practic e of such occupation in the area .

However, such alteration or activity may not

be for the sole or predominant purpose of

impeding or diverting the flow of surface

waters or adversely impacting wetlands.

This exemption applies to lands classified

as agric ultural 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 sur face water permit issued pursuant to

this part or a dredge and fill permit issued

pursuant to chapter 403 . This exemption has

retroactive application to July 1, 1984.

33 . Where there is a dispute between a landowner and a

water management district as to the applicability of the

exemption under section 373.406(2), the Department has exclusive

authority, pursuant to sections 373.406(2) and 373.407, to

determine whether an activity is exempt from environmental

resource permitting.

34 . R ule 5M - 15.003 prov ides that:

In order for the Department to conduct a

binding determination under Section 373.407,

F.S., the following conditions must exist:

(1) The activities in question must be on

lands classified as agricultural by the

county property appraiser pursua nt to

Section 193.461, F.S. Proof of

classification status may be provided by the

requesting party or confirmed by the

Department through the county property

appraiser.

(2) The activities in question must not

previously have been authorized by an

enviro nmental resource permit or a

management and storage of surface water

permit issued pursuant to Chapter 373, Part

IV, F.S., or by a dredge and fill permit

issued pursuant to Chapter 403, F.S. The

water management district shall provide a

statement as to wh ether the activities in

question were previously authorized by any

of these types of permits.

(3) There must be a dispute between the

landowner and the water management district

as to the applicability of the exemption .

The dispute must be documented as provided

in Rule 5M - 15.004, F.A.C.

35 . All three conditions of eligibility were met for the

Department to issue a B inding D etermination.

36 . Rule 5M - 15.005 (1) provides that :

(1) In order for alterations or activities

to be exempt from permitting unde r Section

373.406(2), F.S., all of the following

criteria must be met, as determined by the

Department:

(a) The landowner must be engaged in the

occupation of agriculture, silviculture,

floriculture, or horticulture;

(b) Alterations to the topography o f the

land must be for purposes consistent with

the normal and customary practice of such

occupation in the area; and,

(c) The alteration or activity may not be

for the sole or predominant purpose of

impeding or diverting the flow of surface

waters or ad versely impacting wetlands.

37 . The Department did not evaluate the ditch plugs under

the third criterion. Under the facts of this case, it is found

that the predominant purpose for installation of the ditch plugs

by Petitioners was for enhancing the pr oduction of cypress

trees , and not for impeding or diverting the flow of surface

waters or adversely impacting wetlands.

38 . The Department determined that the Petitioners were

engaged in silviculture .

39 . The dispositive issue in this case is whether th e

installation of ditch plugs, and their corresponding alterations

to the topography of the land , were for purposes consistent with

the normal and customary practice of such occupation in the

area.

40 . The term Ðnormal and customary practice in the areaÑ

is defined in rule 5M - 15.001, as Ð[g]enerally accepted

agricultural activities for the type of operation and the

region.Ñ

41 . Rule 5M - 15.006(3)(d) directs the Department , as one of

the steps to develop a binding determination, to Ð[c]onsult best

manageme nt practices applicable to the operation and adopted by

rule of the Depar tment in Title 5M, F.A.C.Ñ

42 . T he Silviculture Best Management Practices (BMP)

manual, adopted in r ule 5I - 6.002, are a set of practices that

can be used in lieu of regulations and w hich are designed to

assist a landowner in the development and establishment of a

silvicultural operation.

43 . The BMP manual provides that:

This manual establishes the Best Management

Practices (BMPs) for silviculture operations

in Florida . These pr actices are designed as

the minimum standards necessary for

protecting and maintaining the StateÓs water

quality as well as certain wildlife habitat

values, during forestry activities . As

such, they represent a balance between

overall natural resource pro tection and

forest resource use.

44 . D itch plugs referred to in the BMP manual relate to

the construction and maintenance of forest roads. D itch plugs ,

as referenced in the BMP manual , are designed to facilitate road

drainage by reducing the volume and velocity of ditch flow by

directing the flow from the road surface onto vegetated areas

where it can be dispersed. However, Mr. Vowell testified that

controlling sediment loads that arrive at lakes and streams is a

major focus of the silvicultural BMPs, and that it does not make

any difference where the sediment load comes from.

45 . Ditch p lugs 1 and 2 perform the function of entrapment

and dispersion of sediment and the reduction of ditch - flow

velocity described in the BMP manual.

46 . The ditch plugs on the Property were not associated

with the construction or maintenance of forestry roads. T heir

predominant purpose was to enhance the production of cypress

trees. However, t hey had the complementary purpose of capturing

sedimentation associated with S outhwest 101st Avenue.

47 . The undersigned is convinced that the ditch plugs

installed by Petitioners will not only result in the enhancement

of cypress tree growth on the Property, but will result in water

quality improvement to Sampson Lake. However, w hile those

factors may warrant an exemption under section 373.406(9), they

are not the factors for consideration under section 373.406(2).

48 . This case depends on whether the installation of ditch

plugs was Ðconsistent with the normal and customary pract ice of

such occupation in the areaÑ defined as Ð[g]enerally accepted

agricultural activities for the type of operation and the

region.Ñ

49 . The evidence in this case establishes that, regardless

of the efficacy of the activity as applied to this case, the

installation of ditch plugs is not the normal and customary

practice of silviculture in Bradford County or the surrounding

area. While such a determination may favor silvicultural

practices that require drier lands for access to property for

forestry and timbering purposes, and growth of species other

than cypress, that does, nonetheless, reflect generally accepted

practices in the region.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Florida De partment of

Agriculture and Consumer Services enter a final o rder finding

that the activities on PetitionerÓs P roperty addressed in this

case are not exempt pursuant to section 373.406(2), Florida

Statutes.

DONE AND ENT ERED this 2nd day of February , 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 2nd day of Febru ary, 2016 .

COPIES FURNISHED :

Lauren Brothers, Esquire

Department of Agriculture and

Consumer Services

Suite 520

407 South Calhoun Street

Tallahass ee, Florida 32399 - 0800

(eServed)

Paul Still

Kathleen Still

14167 Southwest 101st Avenue

Starke, Florida 32091

(eServed)

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, F lorida 32399 - 0800

(eServed)

Honorable Adam Putnam

Commissioner of Agriculture

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 ri ght 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.