5D08-1700 A. Duda v. St. Johns River Water Management

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-1700

Case Date: 07/13/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2009

A. DUDA AND SONS, INC., Appellant, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellee. ________________________________/ Opinion filed July 17, 2009 Administrative Appeal from the St. Johns River Water Management District. Kenneth G. Oertel and M. Christopher Bryant, of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant. William H. Congdon, Deputy General Counsel, and Timothy A. Smith, Senior Assistant General Counsel, Palatka, for Appellee. Diane D. Tremor, P.A., and Chris H. Bentley, P.A., of Rose, Sundstrom & Bentley, LLP, Tallahassee, for Florida Fruit and Vegetable Association, Florida Farm Bureau Federation, and Florida Chamber of Commerce, as Amici Curiae for Appellant. Betsy Hewitt, Florida Department of Environmental Protection, Tallahassee, and Douglas H. MacLaughlin, South Florida Water Management District, West Palm Beach, as Amici Curiae for Appellee. Case No. 5D08-1700

ON MOTION FOR REHEARING EVANDER, J. We grant the motion for rehearing and withdraw our opinion of May 15, 2009, and substitute therefore the amended opinion issued herein. A. Duda and Sons, Inc. ("Duda") appeals from a final order of an administrative law judge (ALJ) of the Division of Administrative Hearings denying Duda's challenges 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).1 The ALJ agreed with the District's interpretation, and

accordingly, upheld the challenged rules and policies. We affirm, in part, and reverse, in part. Duda is a large agricultural entity that operates farms and groves throughout the State. One of the farms, Cocoa Ranch, is over 18,000 acres and is located within the District's geographical boundaries. 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 policies -The original version of section 373.406(2) was enacted in 1972. The minor amendments to the statute made subsequent to that date are not material to this appeal.
1

2

all of which related to the District's interpretation of section 373.406(2).

The ALJ

consolidated the rule challenge and enforcement matters for hearing and subsequently upheld the District's positions in both cases. challenge case.2 The Florida Legislature has clearly stated that it is a policy of the State to provide for the management of water and related land resources.

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