Fifth DCA – Legislative Intepretation and the Scope of the Agricultural Exemption fromERP Permitting

A. Duda and Sons v. St. Johns River Water Management District, 22 S.3d 622, 34 Fla. L Weekly D1454 (Fla. 5^th DCA July 17, 2009)

In A. Duda and Sons v. St. Johns River Water Management District, the 5^th DCA rejected the Water Management District’s efforts to construe the “agricultural exemption” language of Sec. 373.406(2), Fla. Stat., to make the exemption essentially meaningless – while also rejecting Duda’s interpretation that would focus on its subjective intent. The language at issue states:

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, floriculture 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.

The fight: the District took the view than any action that had the effect of more than “incidentally” impounding or obstructing any surface water was not exempt; Duda argued that the “purpose” language made the limit on the exemption dependant on proof of intent to impound or obstruct surface water. The Court rejected both, holding that intent was not at issue. But the court concluded that an alteration of topography had to be more than incidental and the Water Management District’s rules using that standard violated the statute.

While the decision is substantively important for people who practice in this area, what is more generally important is the Court’s (1) recognition that the issue was one for de novo interpretation of the statute (rather than for deference to the District’s interpretation) and (2) the approach the Court takes in resolving the language in the statute. This decision demonstrates the power of effective judicial review and why local government ordinances and interpretations should be subject to the same level of scrutiny.