Florida's 2011 Legislative Session is shaping up to provide
agricultural interests with sweeping regulatory change. Akerman is
currently tracking legislation that includes the centralized agency
review of fertilizer management, agricultural exemptions from water
management requirements, prohibitions on county-imposed stormwater
fees and assessments, and enhanced protection of agriculture
practices.
HB 457 and SB 606: Grant of Exclusive Jurisdiction to DACS to
Regulate Fertilizer
In order to streamline regulation, the proposed legislation
grants the Florida Department of Agriculture and Consumer Services
(DACS) with the exclusive authority to regulate fertilizer,
including its sale, composition, formulation, packaging, use,
application, and distribution.
HB 421 and SB 1174: Agricultural-Related Exemptions from
Environmental Permitting Requirements and Exclusive Jurisdiction to
DACS to Make Exemption-Determination
Current law provides an agriculture exemption, which allows
persons engaged in certain agricultural occupations (farming,
silviculture, floriculture, and horticulture) to alter the
topography of any tract of land without obtaining an environmental
resource permit from a water management district. The exemption
applies to site preparation, clearing, fencing, contouring to
prevent soil erosion, soil preparation, plowing, planting,
harvesting, construction of access roads, and placement of bridges
and culverts.
In recent litigation, an agricultural company filed suit claiming
that its alterations impacting wetlands were exempt from
environmental permitting requirements. The water management
district disagreed and argued that the agricultural exemption
didn't apply. The court ruled against the agricultural company
and held that the exemption did not apply to the alterations
impacting wetlands.
The proposed legislation revises the agricultural exemption to
specify that certain agricultural activities may impede or divert
the flow of surface waters or adversely impact wetlands, as long as
it (the activity) is not the sole or predominant purpose of the
said activity or alteration. A retroactive application of the
exemption to July 1, 1984 is provided. The proposed legislation
also allows a water management district or landowner to request a
determination from DACS when a dispute regarding an exemption
occurs and establishes that the determination by DACS is
binding.
HB 707 and SB 858: Prohibition on County-Imposed Stormwater
Fees or Assessments on Agricultural Land & Added Protections to
Agricultural Practices
On March 24, 2011, the Florida House and Senate approved Veto
Override of 2010 HB 7103 to protect agriculture. Identical
legislation had been filed during the 2011 Session (HB 707 and SB
858). Key highlights under HB 7103 include:
- prohibits counties from enforcing any regulations on land
classified as agriculture if the activity is regulated by best
management practices, interim measures, or regulations adopted as
rules under Chapter 120, Florida Statutes
- prohibits counties from imposing an assessment or fee for
stormwater management on land classified as agriculture if the
operation has an NPDES permit, ERP, a works-of-the-district permit,
or implements best management practices
- creates the 'Agricultural Land Acknowledgement Act' to
ensure that agricultural practices will not be subject to
interference by residential use of land contiguous to agricultural
land
- requires an applicant for certain local government development
permits to sign and submit an acknowledgement of certain contiguous
sustainable agricultural lands as a conditions of the local
government issuing the development permit
- exempts farm fences from the Florida Building Code and expands the definition of non-residential farm buildings that are exempt from local government codes and fees
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