5M-15.001: Purpose
5M-15.002: Definitions
5M-15.003: Dispute Regarding Exemption
5M-15.004: Eligibility for a Binding Determination
5M-15.005: Documentation of Dispute
5M-15.006: Exemption Criteria
5M-15.007: Binding Determination Process
5M-15.008: Final Agency Action
PURPOSE AND EFFECT: Pursuant to Section 373.407, Florida Statutes this rulemaking proposes to develop definitions and procedures by which the Department will make binding determinations about whether activities, which alter the topography of land, are or are not exempt from Environmental Resource Permitting requirements of Chapter 373, Florida Statutes.
SUMMARY: The proposed rule establishes procedures that the Department will use to render binding written opinions, when requested, as to whether or not an agricultural activity is exempt under Section 373.406(2), F.S. The Department’s opinion will ultimately affect whether or not agricultural operations that have a valid dispute need to obtain an Environmental Resource Permit.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 373.407, 570.02(23) FS.
LAW IMPLEMENTED: 373.406(2), 373.407 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Bill Bartnick, Environmental Administrator, Office of Agricultural Water Policy, 1203 Governor Square Boulevard, Suite 200, Tallahassee, Florida 32301 (850)617-1700 or Fax (850)617-1701
THE FULL TEXT OF THE PROPOSED RULE IS:
PROCEDURES FOR BINDING DETERMINATIONS OF AGRICULTURAL EXEMPTIONS
5M-15.001 Purpose.
The purpose of this rule is to implement the Florida Department of Agriculture and Consumer Services’ (Department) authority under Section 373.407, F.S., to make binding determinations regarding the applicability of the agricultural exemption from environmental resource permitting in Section 373.406(2), F.S. The rule establishes a statewide process to address disputes between agricultural landowners and water management districts regarding the exemption.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.002 Definitions.
(1) Landowner – The owner of the land on which the activities in question have been or are proposed to be conducted.
(2) Normal and customary practice in the area – Generally accepted agricultural activities for the type of operation and the region.
(3) Sole or predominant purpose – The primary function of the activity in question.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.003 Dispute Regarding Exemption.
In the event of a dispute as to the applicability of an exemption under Section 373.406(2), F.S., a water management district or landowner may request that the Department make a binding determination as to whether an existing or proposed agricultural activity qualifies for the exemption. All requests for a binding determination shall be submitted in writing to the Office of Agricultural Water Policy, Florida Department of Agriculture and Consumer Services at 1203 Governor’s Square Boulevard, Suite 200, Tallahassee, FL 32301, or AgPermitExemption@FreshFromFlorida.com.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.004 Eligibility for a Binding Determination.
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 pursuant 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 environmental resource permit or a management and storage of surface water permit issued pursuant to Part IV, Chapter 373, 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 whether 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-15.005, F.A.C.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.005 Documentation of Dispute.
In order to establish that a dispute exists as to the applicability of Section 373.406(2), F.S.:
(1) A water management district making a request for a binding determination from the Department must provide a copy of written correspondence informing the landowner that the activity requires or may require a permit, and a copy of written correspondence or other documentation from the landowner indicating that the landowner is claiming that the activity is exempt under Section 373.406(2), F.S.
(2) A landowner making a request for a binding determination from the Department must provide a copy of written correspondence from the water management district indicating that the activity requires or may require a permit, and a written statement or other documentation indicating that the landowner is claiming that the activity is exempt under Section 373.406(2), F.S.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.006 Exemption Criteria.
(1) In order for alterations or activities to be exempt from permitting under 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 of 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 adversely impacting wetlands.
(2) The Department shall not establish, by policy or practice, standardized threshold acreage impacts to wetlands or other surface waters, as a basis to deny exempt status to the activity or activities subject to review. The Department shall consider each disputed activity on a case-by-case basis, including the extent and nature of potential or actual impacts.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.007 Binding Determination Process.
(1) In support of a request for a binding determination as to whether an existing or proposed activity qualifies for the exemption in Section 373.406(2), F.S., the Department shall obtain the following documentation, as needed to address questions in dispute. Maps may be combined, as appropriate and feasible.
(a) From the landowner:
1. A written description of the existing or proposed activities and the reasons the landowner considers the activities to be exempt from permitting.
2. For newly proposed activities, construction drawings (e.g., plan view, cross-sectionals).
3. Onsite digital photographs. These may be obtained by the Department during a site visit.
(b) From the water management district or other appropriate source:
1. A project location map (include section/township/range, property boundary, major roads).
2. Soils map.
3. A map of hydrologic features, including wetlands, lakes, streams, and reservoirs; and canals, ditches, and other excavated areas.
4. United States Geological Survey topographic quadrangle map or a more recent topographic map.
5. Historical and recent aerial photographs.
(2) To the extent of the available information, the water management district shall provide a detailed written description and the location of each activity that is in dispute, the dates that any existing activities occurred, the impacts the district is associating with each existing or proposed activity, and the specific regulation(s) under which the water management district is asserting permitting authority.
(3) The steps the Department will take to arrive at a binding determination include, but are not limited to:
(a) Confirm that the eligibility requirements in Section 5M-15.004, F.A.C., are met.
(b) Review the information listed in subsections (1) and (2) of this section.
(c) Schedule and conduct a site visit. Information collected during a site visit may include:
1. Field notes that characterize the type of farming operation.
2. In-situ measurements, including soil borings.
3. Identification of gravity drainage, pumped outfall areas, and flow notations.
4. Digital photographs.
5. Interviews with individuals knowledgeable about the operation.
(d) Consult best management practices manuals applicable to the operation and adopted by the Department under Title 5M, F.A.C., and applicable conservation practice standards contained in Section IV of the Natural Resources Conservation Service Field Office Technical Guide.
(e) Request additional information from the water management district or the landowner, as needed and feasible.
(4) Based on the information obtained pursuant to this section, the Department will evaluate whether the landowner meets the criteria listed in Rule 5M-15.006, F.A.C., and will formulate a report containing a binding determination. In the report, the Department will explain the basis for its conclusions and provide references to any documents or other sources of information or guidance used in making its determination. The Department will send the written report, by regular or electronic mail, to the affected water management district and landowner.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.
5M-15.008 Final Agency Action.
Binding determinations under this rule are final agency action subject to administrative proceedings pursuant to Sections 120.569 and 120.57, F.S. Each determination will include a notice of rights to an administrative hearing and appeal.
Rulemaking Authority 373.407 FS. Law Implemented 373.406(2), 373.407 FS. History–New________.