373.406
Exemptions.
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373.406 Exemptions.—The following exemptions shall apply:
(1) Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture, discharge, and use water for purposes permitted by law.
(2) Notwithstanding s. 403.927, 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, including, but not limited to, activities that may impede or divert the flow of surface waters or adversely impact wetlands, for purposes consistent with the normal and customary practice of such occupation in the area. However, such 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. This exemption applies to lands classified as agricultural pursuant to s. 193.461 and to activities requiring an environmental resource permit pursuant to this part. This exemption does not apply to any activities previously authorized by an environmental resource permit or a management and storage of surface water permit issued pursuant to this part or a dredge and fill permit issued pursuant to chapter 403. This exemption has retroactive application to July 1, 1984.
(3) Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees.
(4) All rights and restrictions set forth in this section shall be enforced by the governing board or the Department of Environmental Protection or its successor agency, and nothing contained herein shall be construed to establish a basis for a cause of action for private litigants.
(5) The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact. The department or the governing board also may establish by rule exemptions or general permits that implement interagency agreements entered into pursuant to s. 373.046, s. 378.202, s. 378.205, or s. 378.402.
(6) Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by-case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption.
(7) Nothing in this part, or in any rule or order adopted under this part, may be construed to require a permit for mining activities for which an operator receives a life-of-the-mine permit under s. 378.901.
(8) Certified aquaculture activities which apply appropriate best management practices adopted pursuant to s. 597.004 are exempt from this part.
(9) Implementation of measures having the primary purpose of environmental restoration or water quality improvement on agricultural lands are exempt from regulation under this part where these measures or practices are determined by the district or department, on a case-by-case basis, to have minimal or insignificant individual and cumulative adverse impact on the water resources of the state. The district or department shall provide written notification as to whether the proposed activity qualifies for the exemption within 30 days after receipt of a written notice requesting the exemption. No activity under this exemption shall commence until the district or department has provided written notice that the activity qualifies for the exemption.
(10) Implementation of interim measures or best management practices adopted pursuant to s. 403.067 that are by rule designated as having minimal individual or cumulative adverse impacts to the water resources of the state are exempt from regulation under this part.
(11) Any district or the department may adopt rules to exempt from regulation under this part any system for a mining or mining-related activity that is described in or covered by an exemption confirmation letter issued by the district pursuant to applicable rules implementing this part that were in effect at the time the letter was issued, and that will not be harmful to the water resources. Such rules may include provisions for the duration of this exemption.
(12) An overwater pier, dock, or a similar structure located in a deepwater port listed in s. 311.09 is not considered to be part of a stormwater management system for which this chapter or chapter 403 requires stormwater from impervious surfaces to be treated if:
(a) The port has a stormwater pollution prevention plan for industrial activities pursuant to the National Pollutant Discharge Elimination System Program; and
(b) The stormwater pollution prevention plan also provides similar pollution prevention measures for other activities that are not subject to the National Pollutant Discharge Elimination System Program and that occur on the port’s overwater piers, docks, and similar structures.
(13) Nothing in this part, or in any rule, regulation, or order adopted pursuant to this part, applies to construction, alteration, operation, or maintenance of any wholly owned, manmade excavated farm ponds, as defined in s. 403.927, constructed entirely in uplands. Alteration or maintenance may not involve any work to connect the farm pond to, or expand the farm pond into, other wetlands or other surface waters. This exemption does not apply to any farm pond that covers an area greater than 15 acres and has an average depth greater than 15 feet, or is less than 50 feet from any wetlands.
(14) Nothing in this part, or in any rule, regulation, or order adopted pursuant to this part, may require a permit for activities affecting wetlands created solely by the unauthorized flooding or interference with the natural flow of surface water caused by an unaffiliated adjoining landowner. Requests to qualify for this exemption must be made within 7 years after the cause of such unauthorized flooding or unauthorized interference with the natural flow of surface water and must be submitted in writing to the district or department. Such activities may not begin without a written determination from the district or department confirming that the activity qualifies for the exemption. This exemption does not expand the jurisdiction of the department or the water management districts and does not apply to activities that discharge dredged or fill material into waters of the United States, including wetlands, subject to federal jurisdiction under s. 404 of the federal Clean Water Act, 33 U.S.C. s. 1344.
History.—s. 2, part IV, ch. 72-299; s. 47, ch. 79-65; s. 5, ch. 80-259; s. 2, ch. 82-101; s. 12, ch. 89-279; s. 268, ch. 94-356; s. 2, ch. 95-215; s. 2, ch. 96-370; s. 15, ch. 98-203; s. 21, ch. 98-333; s. 2, ch. 2000-130; s. 2, ch. 2002-253; s. 6, ch. 2011-164; s. 1, ch. 2011-165; s. 14, ch. 2013-92; s. 15, ch. 2022-204.
Notes of Decisions
Cited in 10
cases, 1980–2011 · leading case: A. Duda & Sons, Inc. v. St. Johns River Water Management District
A. Duda & Sons, Inc. v. St. Johns River Water Management District (2009)
“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).”
Booker Creek Pres., Inc. v. SW FLA. WATER MGT. DIST. (1988)
“051(1) refers back to exemptions adopted as part of the surface water management provisions in section 373.406. It provides: (1) Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture,…”
Save the St. Johns River v. WATER MGT. DIST. (1993)
“813(2)(g) exempts activities not exempted under section 373.406, and the only way to avoid the conflict is to give greater weight to section 373.”
Pal-Mar Water Management District v. Board of County Commissioners (1980)
“and Section 373.406(3), Florida Statutes, (1977), which states: Nothing herein, or in any rule, regulation or order adopted pursuant thereto, shall be construed to be applicable to construction, operation, or maintenance of any closed system.”
Sierra Club v. ST. JOHNS RIVER WATER (2002)
“" Section 373.406(9) contains the phrase "individual and cumulative adverse impacts.”
Church of Jesus Christ v. St. Johns Riv. Wat. (1986)
“In the first judgment, the trial court determined that the drainage system which the Church sought to improve was not a "closed" agricultural system exempt under section 373.406(3), Florida Statutes (1983) from the surface water management permit requirements of Chapter 373.”
A. DUDA AND SONS, INC. v. St. Johns River Water Management District (2009)
“In that case, Duda challenged the District’s rules and policies interpreting the agricultural exemption contained in section 373.406(2), Florida Statutes. The panel in Duda I agreed, in part, that the District had incorrectly interpreted the statute.”
St. Johns River Water Management District v. Molica (2011)
“Whether that power was properly exercised in the case of the Moli-cas’ property, including whether the property qualified as an “exempt closed system” under section 373.406(3), Florida Statutes, are issues for the administrative proceeding.”
St. Johns River Water Management District v. Henson (1989)
“Third, Henson has also asserted that his activities were exempt from District permitting pursuant to the silvicultural exemption contained in Section 373.406(2), Florida Statutes (first affirmative defense).”
St. Johns River Water Management District v. Corporation of the President of the Church of Jesus Christ of Latter-Day Sa (1984)
“Section 373.406(3) specifically exempts “construction, operation, or maintenance of any agricultural closed system” from the permitting authority of the District under Part IV of Chapter 373, *58 Florida Statutes.”
— 373.406(2) — 4 cases
A. Duda & Sons, Inc. v. St. Johns River Water Management District (2009)
“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).”
Save the St. Johns River v. WATER MGT. DIST. (1993)
“813(2)(g) exempts activities not exempted under section 373.406, and the only way to avoid the conflict is to give greater weight to section 373.”
A. DUDA AND SONS, INC. v. St. Johns River Water Management District (2009)
“In that case, Duda challenged the District’s rules and policies interpreting the agricultural exemption contained in section 373.406(2), Florida Statutes. The panel in Duda I agreed, in part, that the District had incorrectly interpreted the statute.”
St. Johns River Water Management District v. Henson (1989)
“Third, Henson has also asserted that his activities were exempt from District permitting pursuant to the silvicultural exemption contained in Section 373.406(2), Florida Statutes (first affirmative defense).”
— 373.406(3) — 4 cases
Pal-Mar Water Management District v. Board of County Commissioners (1980)
“and Section 373.406(3), Florida Statutes, (1977), which states: Nothing herein, or in any rule, regulation or order adopted pursuant thereto, shall be construed to be applicable to construction, operation, or maintenance of any closed system.”
Church of Jesus Christ v. St. Johns Riv. Wat. (1986)
“In the first judgment, the trial court determined that the drainage system which the Church sought to improve was not a "closed" agricultural system exempt under section 373.406(3), Florida Statutes (1983) from the surface water management permit requirements of Chapter 373.”
St. Johns River Water Management District v. Molica (2011)
“Whether that power was properly exercised in the case of the Moli-cas’ property, including whether the property qualified as an “exempt closed system” under section 373.406(3), Florida Statutes, are issues for the administrative proceeding.”
St. Johns River Water Management District v. Corporation of the President of the Church of Jesus Christ of Latter-Day Sa (1984)
“Section 373.406(3) specifically exempts “construction, operation, or maintenance of any agricultural closed system” from the permitting authority of the District under Part IV of Chapter 373, *58 Florida Statutes.”
— 373.406(6) — 1 case
A. Duda & Sons, Inc. v. St. Johns River Water Management District (2009)
“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).”
— 373.406(9) — 1 case
Sierra Club v. ST. JOHNS RIVER WATER (2002)
“" Section 373.406(9) contains the phrase "individual and cumulative adverse impacts.”
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