THE MAYO BUILDINGOFFICE OF AGRICULTURAL WATER POLICY

407 SOUTH CALHOUN STREET TALLAHASSEE, FLORIDA 32399-0800

(850) 617-1700

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES COMMISSIONER ADAM H. PUTNAM

October 8, 2015

Joseph and Carol Hough 4975 N. Tomoka Drive DeLeon Springs, Florida 32130

SUBJECT: Section 373.407 Florida Statutes, Binding Determination - Hough

Dear Mr. Hough:

Per your request, enclosed please find our written report on the subject referral. In short, it is the Department's opinion that the operation in question is engaged in production agriculture and the wetland impacts are not exempt under subsection 373.406(2), Florida Statutes.

If you have any questions as you review the document, please feel free to contact me or Bill Bartnick at 850-617-1700.

Sincerely,

D~~ Darrell Smith, Acting Director Office of Agricultural Water Policy

Enclosure

cc: Suzanne Archer (SJRWMD) Tom Roberts (ESciences, Inc.) Lauren Brothers

, , \I//,.

~ ,---80-0--H-E-L-PF_L_A------------ - .---------w-w-w-.-Fr-es-h-Fr_o_m-Fl-o-rid-a-.c-o-m

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Office of Agricultural Water Policy Mayo Building 407 South Calhoun Street Tallahassee, Florida 32399

Binding Determination FDACS Clerk No. A93606

Florida Statute 373.406(2); 373.407 Joseph and Carol Hough, Volusia County, Florida

Introduction:

Pursuant to Section 373.407, F.S., a water management district or landowner may request that the Florida Department of Agriculture and Consumer Services (FDACS) make a binding determination as to whether an existing or proposed agricultural activity qualifies for a permitting exemption under Section 373.406(2), F.S. However, in order for FDACS to conduct a binding determination, all of the following conditions must exist:

a. There must be a dispute between the landowner and the water management district as to the applicability of the exemption.

b. The activities in question must be on lands classified as agricultural by the county property appraiser pursuant to Section 193.461, F.S .

c. The activities in question have not been previously authorized by an environmental resource permit (ERP) or a management and storage of surface water (MSSW) permit issued pursuant to Part IV, Chapter 373, F.S., or by a dredge and fill permit issued pursuant to Chapter 403, F.S.

Joseph and Carol Hough have requested that FDACS conduct a binding determination, and the conditions described above are in place.

Background:

The site consists of one contiguous parcel, comprising 49 acres, located within Section 38, Township 15 South, Range 30 East, in Volusia County. This property is classified as agriculture pursuant to 2014 Volusia County Property Appraiser information .

On August 3, 2004 , Mr. Hough contacted the St. Johns River Water Management District (District) to inquire about permit requirements for maintenance dredging in wetlands. District staff notified Mr. Hough in writing on August 6, 2004 that a permit would be needed for the proposed work. District staff subsequently obtained aerial photographs that showed approximately six (6) to seven (7) acres of the marsh area located on site had been partially excavated sometime between 1999 and 2003. In January of 2013, District staff was notified by the Volusia County Environmental Management Department regarding alleged ongoing excavation on the Hough property. District staff did not pursue the matter until October 2013, when a citizen called to complain about the ongoing work on the property. District staff utilized historic aerial imagery to estimate that initial site excavatioh ceased in 2004, but recommenced sometime during December 2011 to

January 2012 and continued until October 2013. District staff issued a letter notifying Mr. Hough of the need for an ERP Permit on November 6, 2013 and met with Mr. Hough and his representative on site on December 11, 2013.

The District asserts that the impacts to the marsh system will result in permanent loss of reproductive and foraging habitat used by certain aquatic and amphibious animals (frogs, aquatic turtles, crayfish, odonates and other macroinvertebrates) that require fishless water to survive. Further, the District asserts that the pond dried seasonally thus providing spatially and temporally diverse microhabitats that are unlikely to be replicated in a farm pond that is deeper and more hydrologically stable.

On June 28, 2015, FDACS received a request for a binding determination from Mr. Tom Roberts with ESciences, representing Mr. and Mrs. Hough. The District provided additional information on July 8, 2015 and on August 24, 2015.

Site Inspection Findings:

On August 11, 2015, a site inspection was performed by Vanessa Bessey and Raulie Raulerson with the FDACS, accompanied by Mr. Joseph Hough and Mrs. Carol Hough, Tom Roberts with ESciences, and Michael Teal with Kelton and Teal, LLC. During the site visit, the marsh system and several of the planted areas were inspected and photos were taken as appropriate.

At the time of the site inspection, the operation consisted of a storage barn and workshop area, a small area planted in citrus trees, a small area of sugar cane, and an area planted in cabbage and queen palms. In addition, the Houghs plant corn on the property, have sold timber (pine trees), and have planted the areas immediately adjacent to the marsh area in Pensacola Bahia grass. According to the Houghs, they are planning to bring cattle on the property in the future. The pond has been stocked with catfish, hybrid bluegill, and shell cracker.

Mr. Roberts informed FDACS staff that he would be collecting information regarding reference wetlands in the area. FDACS inquired about this on August 24 and September 2, 2015. In anticipation of this information, FDACS requested an extension on September 10, 2015. To date a report regarding reference wetlands has not been provided by Mr. Roberts.

Based on review of aerial photographs provided by the District, aerial imagery obtained by FDACS, and review of National Wetlands Inventory data (Figure 1) staff has determined that the dredging occurred in an area that is considered wetlands and this area was wholly converted to a 5-8 foot deep pond.

Application of Statutory Criteria:

Pursuant to Section 373.406(2) F .S., all of the following criteria must be met in order for the permitting exemption to apply.

(a) "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?"

2

YES. FDACS finds that the Houghs are engaged in the occupation of agriculture.

(b) "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?"

NO. FDACS finds that the construction of ponds within the footprint of wetlands is not a normal and customary practice for the types of agriculture being conducted in the area. Review of aerial imagery revealed that the areas where the pond was constructed were wetlands and that they were not impacted prior to the dredging activities which started sometime between 1999 and 2003. Review of the 2014 aerial shows that the area that was once a wetland has now been wholly converted to a pond .

(c) "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?"

Because the exemption in Section 373.406(2) , F.S. , requires an affirmative answer to all these criteria , and we have already found that the alterations are not consistent with normal and customary practice of such occupation in the area (see (b) above), there is no need to address this issue.

Conclusion:

Based upon the aforementioned facts, site-specific characteristics, historical land use, and documented industry practices, FDACS has determined that the wetland impacts resulting from the construction of a pond in an area classified as a wetland do not qualify for an exemption under Section 373.406(2), F.S.

Nothing herein relieves the landowner from applying for and obtaining any applicable federal, state, or local authorization.

A determination by FDACS that an activity is not exempt from permitting does not preclude the landowner and the water management district from agreeing to modifications to the activity that would render it exempt.

Notice of Rights:

If you wish to contest this action , you have the right to request an administrative hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, and to be represented by counsel or other qualified representative. Mediation is not available. Your request for hearing must contain :

1. Your name, address, and telephone number, and facsimile number (if any) . 2. The name, address, and telephone number, and facsimile number of your attorney

3

enc

1. Your name, address, and telephone number, and facsimile number (if any) . 2. The name, address, and telephone number, and facsimile number of your attorney or qualified representative (if any) upon whom service of pleadings and other papers shall be made. 3. A statement that you are requesting an administrative hearing and dispute the material facts alleged by FDACS, in which case you must identify the material facts that are in dispute (formal hearing); or that you request an administrative hearing and that you do not dispute the facts alleged by FDACS (informal hearing) . 4. A statement of when (date) you received this Notice and the file number of this Notice.

Your request for a hearing must be received at: The Office of Agricultural Water Policy, Mayo Building, 407 South Calhoun St. MS-E1, Tallahassee, Florida 32399, within twenty-one (21) days of receipt of this Notice. If you fail to request an administrative hearing within the twenty-one (21) day deadline you waive your right to a hearing and the binding determination will become final agency action upon filing with the agency clerk.

Any party to these proceedings adversely affected by this Final Order is entitled to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedures. Judicial review proceedings must be instituted by filing a Notice of Appeal with the Department's Agency Clerk, 407 South Calhoun Street, Suite 509, Tallahassee, Florida, 32399-0800, within thirty (30) days of rendition of this order. A copy of the Notice of Appeal must be filed with the Clerk of the appropriate District Court of Appeal accompanied by any filing fees prescribed by law.

Supporting Documents:

(1) USDA Soil Survey, Volusia County, Florida (2) Volusia County Property Appraiser Information Card

Clerk and rendered this ~ ~ ay 003,~,2015.

Steve Donelan, Agency Clerk

4

Figure 1 National Wetland Inventory Map

This map is for general reference only. The us Fish and Wildli fe Service is not responsible for the accuracy or currentness of th e base data shown on this map. All wetlands related data should be used in accordance with the layer metadata found on

the Wetlands Mapper web site.

Wetlands

- Freshwater Ernergant

- Freshwater Fo,rested/Shrnb

- Estuarine and Marine Deepwater

Estuanne and Marine

- Freshwater Pond

- l ake

- Riverine

01her

5

USDA United States ~ Department of

Agriculture

NRCS Natural Resources Conservation Service

A product of the National Cooperative Soil Survey, a joint effort of the United States Department of Agriculture and other Federal agencies, State agencies including the Agricultural Experiment Stations, and local participants

Custom Soil Resource Report for

Volusia County, Florida Hough Property

September 16, 2015

Custom Soil Resource Report s: s:Soil Map!::: ~ !:: !:: :. "'

471000 471100 471200 471300 471400 471500 471600 471700 471800 471900

29° 9' 10" N

i ~

iM

29' 8' 49" N

471000 471100 471200 471300 471400 471500 471600 471700 471800 471900 3:

!::: Map Scale: 1:4,740 if printed on A landscape (11" x 8.5") sheet!::

29° 9' 10" N

i ~

~ M

IM

I

i ~

290 8' 49" N

----=== =--------=======MetersN

A 0 so 100 200 300 ----=====--------========Feet 0 200 400 800 1200 Map projection: Web Mercator Comer roordinates: WGS84 Edge tics: UTM Zone 17N WGS84

8

Volusia County Property Appraiser's Office: Parcel Information Page I of 2

Home Searc h Downloads Exemptions Agriculture Maps Tangible Links Contact

Home Search Choices Search By Parcel Number Property Information

Notice of Proposed Taxes ! Estimate of Taxes ! Parcel Information: 6041-01 -00-0041 2015 Preliminary Tax Roll Last Updated : 09-13-2015

Owner Name and Address Alternate Key 2143614 Parcel Status Active Parcel (Real Estate) Short Parcel ID 6041-01-00-0041 Mill Group 100 Unincorporated Full Parcel ID 41-16-30-01-00-0041 2014 Final Mill Rate 22.75290 Created Date 18 DEC 1981

Property Class 63 Grazing Land Soil Capability Class IV Ownership Type Ownership Percent 100 Owner Name HOUGH JOSEPH & CAROL Owner Name/Address 1 Owner Address 2 4975 N TOMOKA DRIVE Owner Address 3 DELEON SPRINGS FL Owner Zip Code 32130 Situs Address 4940 SR 11 DELEON SPRINGS 32130

Legal Description LOT 4 WOF HIWAY & LOT 13 DAUGHERTYS SUB ARREDONDO GRANT PER OR 4198 PGS 0267-0270 INC

Sales History Qualified Sale

ImprovedBook Page ~=~= lns!~~ent Unqualified Price 4198 0267 05/1997 Trustees Deed Unqualified Sale No 10 4198 0270 04/1997 Warranty Deed Unqualified Sale No 40,500 4198 0268 04/1997 Warranty Deed Qualified Sale No 139,500

History of Values Misc. Just School Non-School School School Non-School Non-SchoolYear Land Bldg(s) lmpr. Value Assessed Assessed Exemption Taxable Exemption Taxable

2014 216,500 0 0 216,500 2,409 2,409 0 2,409 0 2,409 2013 146,000 0 0 146,000 2,409 2,409 0 2,409 0 2,409

IQJaplay Va!}le.Mj~toryiil

Land Data Land Use No. Unit JustCode Frontage Depth Rate Depth Loe Shp Phy

Type Units Type Value 5900 WASTELAND 0.0 0.0 10.00 ACREAGE 500.00 100 100 100 100 5,000 6325 NTV PST GD -20-49.99AC 0.0 0.0 47.00 ACREAGE 4200.00 100 100 100 100 197,400

Neighborhood 0611 DOUGHERTY'S ARRENDONDO GRANT Total Land Classified 2,409 Total Land Just 202,400

Parcel Notes (Click button below to display Parcel Notes)

fP.!f#~..JiQle,, I Planning and Building

Permit Permit Date Date Construction Occupancy Occupancy Number Amount Issued Complete Description Number Bldg

l,~Ja.Y. l'.!!mJ~•.,j Total Values

Land Value 202,400 New Construction Value 0 Building Value 0 City Econ Dev/Historic 0 Miscellaneous 0

Just Value 202,400 Previous Just Value 216,500 School Assessed 2,409 Previous School Assessed 2,409 Non-School Assessed 2,409 Previous Non-School Assessed 2,409 Exemption Value 0 Previous Exemption Value 0

Additional Exemption Value 0 Previous Additional Exemption Value 0

http://www.vcpa.vcgov.org/cgi-bin/search.cgi 9/16/2015

Volusia County Property Appraiser's Office: Parcel Information Page 2 of2

School Taxable 2,409 Previous School Taxable 2,409 Non-School Taxable 2,409 Previous Non-School Taxable 2,409

MaplT: Your basic parcel record search including lot dimensions.

PALMS: Basic parcel record searches with enhanced features.

Map Kiosk: More advanced tools for custom searches on several layers including parcels.

http://www.vcpa.vcgov.org/cgi-bin/search.cgi 9/16/2015