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Administrative Law Judge Upholds 2011 Legislative Changes to the Environmental Resource Permitting Agricultural Exemption Law

Posted Wednesday, February 6th, 2013

On February 1, 2013, Administrative Law Judge (ALJ) James H. Peterson, III, issued a recommended order rejecting a binding determination made by the Florida Department of Agriculture and Consumer Services (DACS).  DACS previously declared that a farmer’s removal of trash and excavation of a cattle pond in a wetland was not a normal and customary agricultural practice, and thus required an environmental resource permit (ERP) from the Southwest Florida Water Management District. The ALJ found, however, that cattle ponds were quite common and normal throughout Florida.

The ALJ recognized that the ERP agricultural exemption found under subsection 373.406(2), Florida Statutes, was substantially amended during the 2011 legislative session to correct, in part, agency and judicial misunderstandings as to whether the exemption applied to activities that impacted wetlands. The ALJ declared that “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.”

The ALJ also rejected DACS’ contention that the farmer’s cattle pond was constructed inconsistent with its adopted “best management practices” (BMPs) and thus could not be a normal and customary agricultural practice. Again the ALJ cited to the 2011 legislation, which expanded the definition of “agricultural activities” to include DACS’s BMPs, along with other activities such as fallowing, leveling, and cultivation. The ALJ concluded that DACS cannot look solely to its BMPs in determining whether an agricultural activity is normal and customary. 

The administrative case is Zagame v. Department of Agriculture and Consumer Services, DOAH Case Number 12-1356, and a copy of the recommended order can be found here.

For more information contact Timothy M. Riley.

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