CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1988 WL 96447
...That rule contains ten activities which the District exempted from the permitting requirements of Part IV of Chapter 373: 40D-4.051 Exemptions. The following activities are exempt from permitting under this chapter: (1) The activities specified in sections
373.406, and
403.812, Florida Statutes....
...exemption, they could be found authorized and valid. However, none appear related to this provision in section
373.414. The first exemption in Rule 40D-4.051(1) refers back to exemptions adopted as part of the surface water management provisions in section
373.406....
...It also refers to stormwater systems under the District's jurisdiction pursuant to section
403.812. They are exempt from permitting if they are required for the connection of stormwater management facilities to waters that are incidental to the construction of such facilities. With regard to the exemptions in section
373.406, since they are part of Part IV of Chapter 373, it is logical to assume they were intended to apply to section
373.414, even though not expressly referenced in the isolated wetlands law....
...n systems, drainage ditches, dikes, and dredging and recovery ponds. These activities clearly *425 may impact on isolated wetlands and the quality of their habitats. To the extent exemptions in subsection (8) enlarge upon the statutory exemptions in section 373.406, they are not reasonably related to the applicable law, and accordingly they are not valid....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 9759, 2009 WL 2067373
...ges to certain adopted rules, statutory interpretations, and policies of the St. Johns River Water Management District ("District"). The primary issue on appeal is whether the District has properly interpreted the agricultural exemption set forth in section 373.406(2), Florida Statutes (2007)....
...As the result of an enforcement investigation, the District served an administrative complaint on Duda, alleging that Duda had constructed numerous drainage ditches on the Cocoa Ranch property without first obtaining required permitting from the District. Duda contended that, pursuant to section 373.406(2), it was exempt from the District's permitting requirements and requested a hearing on the District's administrative complaint. Duda also filed a five-count petition challenging the validity of certain District rules, statutory interpretations, and policiesall of which related to the District's interpretation of section 373.406(2)....
...iculture, 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. § 373.406(2). Thus, in the first sentence of section 373.406(2), the Legislature created an exemption from the districts' rules and regulations for persons who alter the topography of land where such persons: 1) are engaged in the occupation of agriculture; and 2) the alteration of the topography is consistent with the practice of agriculture....
...The quantity of the water being diverted and trapped is so small that it would serve no practical *742 purpose to require a permit for such work. In addition, the administrative burden of regulating such operations would be enormous.... Section 4.02(2) of the Model Water Code is virtually identical to section 373.406(2), Florida Statutes, as enacted by the Legislature in 1972. However, as noted by Duda, the Commentary was not referenced by the Legislature when it enacted section 373.406(2)....
...The District counters that Duda's interpretation would result in unregulated construction and operation of ditches, canals, culverts, and other construction on millions of acres of Florida agricultural landregardless of the impact on water resources. We conclude that neither party's interpretation of section 373.406(2) is correct. It is the second sentence of section 373.406(2) that is at the core of the parties' dispute....
...1st DCA 2000); see also Metro. Dade County v. Dep't of Envtl. Protection,
714 So.2d 512, 515 (Fla. 3d DCA 1998); Schrimsher v. Sch. Bd. of Palm Beach County,
694 So.2d 856, 861 (Fla. 4th DCA 1997). Duda contends that by its plain meaning, the word "purpose" as used in section
373.406(2) means the actor's subjective intent. The District successfully argued to the ALJ that "purpose" has more than one meaning and, in the context of section
373.406(2), it means the action's objective effect or function....
...ng "obstructing" as narrowly as suggested by Duda. Although we find no error in the District's interpretation of "purpose" and "obstructing," we conclude that the District has ignored the plain meaning of the word "predominant" in its application of section 373.406(2)....
...Similarly, an alteration of topography *744 may have more than an incidental effect of impounding or obstructing surface waters even though that was not the predominant effect. The lack of 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. [5] The District's interpretation of section 373.406(2), if accepted, would render the agricultural exemption virtually meaningless....
...We reject the District's contention that defining "predominant" as "more than incidental" is supported by the commentary to section 4.02(2) set forth in A Model Water Code. As previously noted, this commentary was not even referenced by the Legislature when it enacted section 373.406(2)....
...describes the trapping or diverting of water in those examples as "incidental." 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 373.406(2) provides an exception to the agricultural exemption for the impounding or obstructing of surface watersnot ground water....
...authority. Dep't of Natural Res. v. Wingfield Dev. Co.,
581 So.2d 193, 198 (Fla. 1st DCA 1991). Here, the rules and policies adopted by the District in accordance with its erroneous interpretation of "predominant" conflict with the plain language of section
373.406(2), are an improper attempt to modify the statute, and constitute an invalid exercise of delegated legislative authority....
...dominant," we reverse the ALJ's denial of count II of Duda's petition. [7] We affirm as to counts I, III, IV and V. [8] AFFIRMED in part; REVERSED in part; and REMANDED. MONACO, C.J., COBB, W., Senior Judge, concur. NOTES [1] The original version of section 373.406(2) was enacted in 1972....
...[4] Section
120.68(7)(d) provides: The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, when it finds that: (d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action. [5] Section
373.406(6) provides: Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district....
...on and thereby constituted an improper amendment of that statute. [8] In count I of its petition, Duda alleged that the District had improperly implemented a policy of requiring the agricultural community to obtain permits for work that, pursuant to section 373.406(2), was exempt from any permit requirements. We find that, under the facts of this case, the District had no "policy" other than what was reflected in its adoption and enforcement of a rule (40C-4.091) that was in contravention of section 373.406(2). In counts III and V, Duda alleged that rules 40C-4.041 and 40C-44.041, respectively, which required permits for certain construction activities, were vague, arbitrary, and capricious and conflicted with section 373.406(2)....
...We agree with the ALJ that the District's reference to these publications did not constitute the use or adoption of unpublished rules. Instead, these publications were simply documents which the District relied upon in an attempt to ascertain the legislative intent behind section 373.406(2).
