I.  Introduction

            The value placed on the importance of open space has increased as urban sprawl erases the existence of areas once proudly revered as countryside.  Populations are realizing that the existence of open space plays a role in a community’s vitality from an environmental, economic, and social perspective.[1]

            Since agricultural entities occupy vast quantities of acreage viewed as open space, the connection between preserving open space through the preservation of agriculture is only natural.[2]  Hence, agricultural zoning is the most common method used to prevent the construction of residential subdivisions or urban sprawl[3]  There is also a connection between preserved open space and the expectation of a clean or even pristine environment within that open space.  A disconnect arises between agriculture and open space when the extent of pollutants generated from an agricultural operation are considered and the fact that agricultural sources of pollution are virtually unregulated, as compared with the pollutants generated by non-agricultural entities.[4] 

            Preserving open space through agriculture is a difficult yet viable solution to local growth management objectives regarding open space.  If authorities can address the environmental pollutants from agriculture effectively, the economic realities of farming and the monetary cost to the public, then the objectives of preserving open space throurgh the preservation of agriculture can be realized.

            This Note will examine the lack of recourse that a local government has from protecting its own local environment from zoning decisions designed to preserve agriculture, and what can be done to offset the negative implications of preserving open space through agriculture.  First, this Note will assess how zoning decisions in Florida are implemented.  Second, it will look into how local governments are prevented from enacting local pollution control laws after zoning decisions are made.  Third, this Note will consider the pollution from agriculture operations and the federal and state governments’ regulatory response to agriculture and its pollution.  Fourth, this Note will explore objectives that must be met to accomplish the preservation of open space through agriculture, and what land use and zoning techniques serve those objectives.  Lastly, this note will consider what combination of land use and zoning tools may work to accomplish the preservation of open space through agriculture in a sustainable manner.                      

II.  Setting the Stage for Local Zoning Decisions and Farmland Preservation 

            A.  The Growth Management Act and Comprehensive Plans

            The State of Florida enacted the Local Government Comprehensive Planning and Land Development Act in 1985.  Also known as the Growth Management Act,[5] its purpose is to empower a local government’s ability to foster orderly growth.[6]  The Act is also intended to promote a municipality’s natural and economic assets and support beneficial uses of land and other resources.[7]  It is the intent of the Growth Management Act that it aid in the prevention of urban sprawl through conservation, development strategies, utilization of natural and economic assets, and protection of the natural resources within a municipality’s jurisdiction.[8]

            In order to accomplish the goals of the Act, a local government is required to create a comprehensive plan in accordance with the Growth Management Act, and submit the plan to the Department of Community Affairs for review.[9]  The comprehensive plan contains required and optional elements that set forth a consistent roadmap for the balanced future economic, social, physical, environmental, and fiscal development of the area.[10]  A local government’s comprehensive plan must also acknowledge the goals and policies that are included in the state’s comprehensive plan.[11]  Contrary to the Growth Management Act, the State Comprehensive Plan is not binding, being that the degree to which a local government will make expenditures promoting the goals and policies of the state comprehensive plan is left to the discretion of the local government.[12]  Florida’s comprehensive plan, however, has several goals and policies relevant to the preservation of open space through agriculture.[13]    

            Rule 9J of the Florida Administrative Code is used to determine whether a local government’s comprehensive plan is in compliance with the requirements of the Growth Management Act, while also considering regional plans, the State Comprehensive Plan, and the unique attributes of an area under the jurisdiction of the local government.[14]  Rule 9J specifically cites the protection of agriculture as one of its many tools for determining whether a comprehensive plan is “discouraging the proliferation of urban sprawl.”[15]  One of the thirteen indicators used to determine that a comprehensive plan does not discourage urban sprawl is when a plan “fails to adequately protect adjacent agricultural areas and activities, including silviculture,[16] and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.”[17]

B.  The Agricultural Land Practices Act - Agriculture’s Effective Use of Growth Management Legislation 

            Effective July 1, 2003, the Agricultural Land Practices Act (ALPA) was enacted as part of the Growth Management Act.[18]  The purpose of ALPA is to “protect reasonable agricultural activities conducted on farm lands from duplicative regulation.”[19]  ALPA sets forth the direct and indirect benefits that agriculture provides to the citizens of Florida.[20]

…that agricultural activities constitute unique and irreplaceable resources of statewide importance; that the continuation of agricultural activities preserves the landscape and environmental resources of the state, contributes to the increase in tourism, and furthers the economic self-sufficiency of the people of the state; and that the encouragement, development, and improvement of agriculture will result in a general benefit to the health, safety, and welfare of the people of the state…

ALPA prohibits a local government from enacting “any ordinance, resolution, regulation, rule, or policy” intended to regulate a farm operation.[21]  A farm operation is defined by Florida’s Right to Farm Act[22] as land designated as agricultural land for ad valorem tax purposes.[23]  ALPA qualifies its prohibition of duplicative local regulations on agriculture, by stipulating that “best management practices, interim measures, or regulations developed by the Department of Environmental Protection (DEP), the Department of Agriculture and Consumer Services (DACS), or a water management district” are to be implemented in order for the agricultural operation to enjoy its immunity from local regulations.[24]  Most agricultural operations are exempt from local regulation, even though the nature of the best management practices, interim measures, and regulations that ALPA refers to have been held to be non-compliant with the State’s “statutorily imposed duties” to protect the waters of the state from pollution.[25]       

            C.  The Binding Effect of the Growth Management Act

            The State of Florida mandates that local governments adopt comprehensive plans consistent with the requirements of the Growth Management Act, the goals and policies of the State Comprehensive Plan, and the Strategic Regional Plan.[26]  The elements of a local government’s comprehensive plan must be based on reliable data and analysis,[27] and deadlines for the generation of a local government’s comprehensive plans are established by the state land planning agency.[28]   

            Private and public development on land covered by the comprehensive plan must be consistent with the plan, even when a developer’s reliance on a local government’s eighteen month old approval of a proposal is deemed to be inconsistent with the town’s comprehensive plan.[29]  In Village of Key Biscayne v. Tesaurus Holdings Inc., the third DCA confirmed the binding effect of the Growth Management Act and the Petitioner’s Comprehensive Plan.  The court of appeals quashed the lower court’s order based on denial of due process grounds, which invalidated the Village of Key Biscayne’s decision to renege on a provisional yet erroneous approval of a developer’s proposal to construct residential housing in an area zoned general and commercial.[30]        

III.  The Relationship Between Elements in the Growth Management Act and Agriculture

            The Growth Management Act contains mandatory and optional elements that are to be included in a comprehensive plan.[31]  The required elements that relate to the preservation of open space through farmland preservation include: the future land use element,[32] the combined general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element,[33] the conservation element,[34] the recreation and open space element,[35] and the intergovernmental coordination element.[36]

            A.  The Future Land Use Element

            The future land use element is significant, as it designates the distribution and intensity of land use for “residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories for public and private uses of land.”[37]  It acts as a roadmap for a community’s development that is derived from core state requirements and a community’s goals and policies combined with its predictions of its own economy and population growth.[38]  This element considers a host of land uses, forcing a community to determine whether agriculture is compatible with its other land uses or whether an area zoned agriculture could serve to meet the intent of other land uses, such as conservation or recreation and open space, while simultaneously allowing for the existence of a viable agricultural operation.  The future land use element, however, provides an all or nothing approach, calling for the “elimination of nonconforming uses which are inconsistent with the character of the community.”[39] 

            The State of Florida endorses creative strategies to development “which may better serve to protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses....”[40]  Whether the future land use plan is considered as either a crutch for agriculture or a sincere effort to protect open space and discourage urban sprawl, the element encourages the designation of rural land stewardship areas (RLSAs).[41]  This provision offers expansive state support to facilitate local governments’ desire to designate land as “predominantly agriculture, rural, open, open-rural, or a substantially equivalent use.”[42]  RLSAs could be construed as a crutch, because the DCA promotes the establishment of RLSAs through economic incentives and development strategies amongst other measures,[43] referenced in non-descript terms.  The use of generalized language facilitates the use of RLSAs for pretextual reasons, such as provisions for immunity on behalf of agricultural interests.  In addition, there is growing sentiment among commentators that agricultural entities have been provided with excessive economic incentives, despite it being a small facet of the US economy.[44]  

B.  General Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element

            The general sanitary sewer, solid waste, drainage, potable water, and natural groundwater recharge element is relevant to farmland preservation, because it requires a local government to identify land areas covered under their comprehensive plan that are considered to be areas of “prime groundwater recharge.”[45]  This element requires that zoning and land use decisions be made while giving “special consideration” to local groundwater resources and waste disposal[46] that have inherent relevance to an agricultural operation.  A typical farming operation may require the withdrawal of mass volumes of fresh water from a groundwater aquifer while simultaneously disposing of mass volumes of wastewater to the ground surface overlying that same source of fresh water.  Agricultural operations are prevalent in many areas of Florida, where prime drinking water aquifers are naturally unprotected from pollutants. 

            Those areas considered by the regional water management districts to be located in areas that allow water to migrate into the Floridan or Biscayne Aquifers are specifically referenced in this section.[47]  It is notable that this element requires that soil surveys be conducted in areas served by septic tanks, to determine whether soils are suitable for septic tanks.[48]  The same requirement mandating the evaluation of soils’ permeability and ability to treat contaminants is not applied to agricultural operations, even though an animal operation will typically dispose of wastewater to the same media as a septic system, albeit in industrial quantities.  In this regard, the operation of an agricultural facility may be of detriment to an area of “prime groundwater recharge” with respect to the contamination of groundwater resources.  However, the existence of an agricultural entity in such an area may be a feasible means of preserving an area of “prime groundwater recharge,” since agricultural operations are typically not conducive to the construction of impermeable surfaces, contrary to commercial, residential, or industrial land uses.

            C.  Conservation Element 

            The purpose of the conservation element is to “promote the conservation, use, and protection of natural resources, including…water recharge areas…soils …and other natural and environmental resources.”[49]  Consistent with the conservation element, ALPA states that “the continuation of agricultural activities preserves the landscape and environmental resources of the state.”[50]  This element requires that a local government consider several factors potentially relevant and sometimes in conflict with the operation of an agricultural operation including:[51] areas where soil erosion has occurred,[52] areas encompassing recreationally or commercially valuable wildlife and vegetative features,[53] the existence of  pollutants generated by an entity,[54] and the current and projected needs and sources for water.[55]  Technically, a local government is prohibited from allowing the existence of an activity that is known to be detrimental to water resources, wildlife, or vegetative communities.[56] 

            A paradox exists between ALPA‘s indirect references to agriculture’s ability to be an asset to the conservation element,[57] and the fact that many agricultural operations are identified as being the cause of excessive rates of soil erosion by wind and water,[58] the source of contaminants known to be detrimental to water quality,[59] and a user of excessive quantities of groundwater at rates disproportionate to other commercial users.[60]    

            D.  The Recreation and Open Space Element         

            The recreation and open space element requires that a system of public and private sites be dedicated to recreational uses which include open space.[61]  While the recreational attributes of a private farm may not be obvious on its face, it is increasingly recognized that the existence of open space near urban areas is associated with the psychological well-being of the general populace.[62]  In addition, recreational use statutes allow landowners of large tracts to limit their liability for injuries suffered during recreational uses, in the event they are willing to allow the public’s use of their farmland for a recreational purpose, such as hunting or hiking.[63]

            E.  Intergovernmental Coordination Element   

            The intergovernmental coordination element requires that local governments coordinate and collaborate with the state comprehensive plan, regional comprehensive plans, and the comprehensive plans of adjacent municipalities.[64]  The objective of this element is “to identify, and resolve incompatible goals, objectives, and policies,” set forth by neighboring municipalities. 

            This element’s potential relationship to agriculture is automatic in the case where the land area covered by an agricultural entity is, by either its size or location, of a nature that a zoning or land use decision would trigger an obvious effect on other municipalities.[65]  The importance of this element could also arise when a local government adheres to the Legislature’s recognition of the advantages in adopting “innovative and flexible planning and development strategies and creative land use planning techniques,”[66] such as those techniques associated with the use of viable agricultural operations to preserve open space.  An example could be a local government’s use of transferable development rights, where a farmer is given development rights in the jurisdiction of a local government different from the jurisdiction where his farm, designated for preservation, is located.  The importance that the Growth Management Act places on maintaining “the economic viability of agriculture and other predominantly rural uses” is certain to place strains or benefits on entities beyond the jurisdiction of one local government.[67]

IV.  The Prevention and Preemption of a Local Government’s Attempt at Self Preservation

A.     The Groundwork for Invalidation of Local Ordinances Based on Conflict or Preemption 

            The Growth Management Act encourages local zoning decisions designed to preserve agriculture,[68] and at the same time provides a framework that effectively protects agricultural entities from measures introduced at a local level, in response to the adverse consequences from an agricultural operation, such as pollution, that may have been enabled by a local zoning decision.[69]  If a local government were to attempt to pass an ordinance regulating an agricultural operation, it could be found to be inconsistent with state law and invalidated in one of two ways:[70] 1) it could conflict with state statute or 2) a state statute could speak directly to the subject matter of the local statute, in which the local statute could be expressly or impliedly preempted.[71]  In City of Miami Beach v. Rocio Corp., the court invalidated ordinances passed by the City to delay the conversions of apartments to condominiums, due to a shortage in apartments.  The court considered the issues of whether the local ordinances were invalid based on preemption or conflict with Section 718, Florida Statutes, of the Florida Condominium Act.[72]  The court held that nothing in Section 718’s language expressly preempted the subject area of condominiums to the state, however the local ordinance conflicted with State law because it prohibited an activity that was permitted by the Florida Condominium Act.[73]    

                        1. In Conflict with State Statutes

            Article VIII of the Florida Constitution gives municipalities the authority to “…exercise any power for municipal purposes except as otherwise provided by law.”[74]  The Florida Legislature has granted most local government’s home-rule authority,[75] which provides “autonomy to a local government, conditional on its acceptance of certain terms.”[76]  The Growth Management Act gives a local government the authority to plan for and regulate development,[77] however “development” excludes “the use of any land for the purposes of growing plants, crops, trees or other agricultural or forestry products; raising livestock; or for other agricultural purposes.”[78]  The extent of a local government’s authority of self governance is limited to local legislation that is “not inconsistent with general or special law.”[79] 

            For instance, this limitation could hamper a local government’s ability to request that a livestock operation determine whether its waste disposal practices (i.e. spraying untreated waste onto the ground surface) are contaminating the local groundwater resources.  Barring certain circumstances, it might also be inconsistent with current State environmental laws to require the livestock operation to install monitoring wells to insure that its practices are not degrading waters of the state, based on the language of Florida Statutes regulating pollution and agriculture.[80]

            The powers and duties granted to local government initially suggest that local governments may regulate pollution concurrently with state authorities,[81] however state legislation favorable to agricultural interest would likely conflict with efforts to regulate at the local level, invalidating any proposed local pollution control regulations.[82]  Agricultural activities are effectively exempt from state and local planning decisions, while the implementation of the measures used to preserve agricultural land are largely imposed on local government. 

                        2.  State Preemption

            In addition to the limitation placed on local government authority by the powers and duties granted to county government,[83] the power of local government is also stifled by express and implied preemption. 

                        i. Express Preemption

            Express preemption is an unambiguous intention from the Legislature to limit a local government’s powers in certain instances to adopt ordinances, regulations, rules, or policies.  The language found in ALPA[84] and the Florida Right to Farm Act[85] expressly preempts a local government’s power to regulate agricultural operations.[86]  If a local government were to challenge the statute’s preemptory language, the court will simply follow the statute’s “clear and obvious meaning,” and forgo any exercise of statutory interpretation or any search for alternate legislative intent.[87]  An exception might exist when a statute contains generalized language, as in Hillsborough County v. Florida Restaurant Association, where the County was not preempted from exercising its police powers in its decision to require local establishments selling alcohol to post signs warning of the dangers of the consumption of alcohol.  Despite preemptive language in the state statute, the County prevailed due to a lack of a pervasive legislative scheme to prevent local legislation.  The court held that “express preemption cannot be implied or inferred.”[88]

            The Growth Management Act expressly preempts local governments from regulating agricultural activities through the exclusions from its definition of “development.”[89]  ALPA expressly preempts counties from imposing regulations on “an activity of a bona fide farm operation on land classified as agricultural land for ad valorem tax purposes,” providing the farm operation adheres to “best management practices, interim measures, or regulations adopted by the DEP, DACS or water management district.[90]

                        ii.  Implied Preemption

            Implied preemption occurs where a legislative scheme is so pervasive that it shows an intention to preempt in an area, and where strong public policy reasons support preemptive assertions.[91]  In Lowe v. Broward Co., the appellant argued that the Florida Statutes in the area of domestic relationships impliedly preempted Broward County’s Domestic Partnership Act, which allowed same sex “domestic partners,”[92] because domestic relations is an area solely of state concern.[93]  The court held that the Act did “not encroach upon an area reserved to the State,” based on its reading of the Act.[94]  It is likely that a local ordinance targeted towards agriculture would be viewed as a conflict with Florida’s existing legislative scheme to protect agriculture.

            It could also be argued that the Florida Legislature has a history of establishing a pervasive scheme to protect agriculture from regulation, asdemonstrated by the Florida Right to Farm Act[95] and the comparatively lenient environmental controls only recently imposed on agriculture.[96]  Even without the Growth Management Act’s addition of ALPA in 2003, which speaks directly to the prohibition of local attempts to regulate agriculture from an environmental standpoint,[97] local efforts to regulate would still more than likely be invalidated by implied preemption.      

V.  Florida’s Regulation of - Pollution from Agriculture and Local Attempts to Regulate Pollution from Agriculture Operations 

            Under current Florida law, pollution control statutes are not applied to agricultural operations equally as they are applied to other entities generating a waste or releasing hazardous substances, such as nitrogen, to the ground surface.[98]  For example, under section 403.707(2)(e), Florida Statutes, a hog farm that applies manure to its fields at greater than agronomic rates is exempt from any groundwater monitoring requirements;[99] or a row cropper that applies excess volumes of pesticides to his crops is exempt from regulation pursuant to conditions under Water Pollution Control Permits.[100]  As a result, a local government’s initiatives to preserve open space through agricultural zoning may result in an adverse and unregulated effect on its environment, as well as run afoul of the spirit of preserving the natural environment, found in the Growth Management Act and the Florida’s own comprehensive plan.[101]

            A.  Florida’s Regulation of Pollution and Agriculture

            The State’s role in regulating most sources of pollution is governed under the Florida Air and Water Pollution Control Act (PCA), which empowers the Florida DEP to regulate air and water pollution through the adoption of rules and regulations.[102]  Pollution is defined as:

the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or manmade or human-induced impairment of air or waters or alteration of the chemical, physical, biological or radiological integrity of air or water in quantities or at levels which are or may potentially harmful or injurious…to animal or plant life… or which unreasonably interferes with the enjoyment of life or property, including outdoor recreation unless authorized by particular law.[103]

The following “agricultural” activities, which are effectively free from state regulatory controls and exempt from local regulatory controls, could all be considered as sources of pollution under the PCA: a crop farmer’s over application of fertilizer to his crops, a dairy farmer’s storage of untreated cow urine and liquefied manure in an unlined lagoon followed by its subsequent discharge to a nearby spray field, or even a retail fertilizer sales facility’s nitrogen laden storm water runoff into roadside ditches.[104] 

            In theory, pending DEP approval, local entities appear to have the ability to apply their own pollution control requirements[105] that are equal or more stringent than those of the DEP.[106]  The DEP, at its discretion, may delegate its exclusive permitting authority to local pollution control organizations.[107]  According to the DEP, it only reviews local pollution control regulations under three circumstances: i) where the DEP deems the local ordinance a local pollution control program, ii) where the local government requests a delegation of authority from the DEP, and iii) when there is an operating agreement between the DEP and the local entity, which delegates authority to the local government.[108]  Barring the preemptive language of ALPA and Florida’s Right to Farm Act, which could nullify a local attempt to regulate an agricultural activity, a local government’s means of preserving open space through agriculture use while protecting their local environment, would be accomplished logically by the use of land development regulations (LDRs).[109]  For instance, a local government could require that an assessment of soil and groundwater be completed to determine a site’s suitability for the application of wastewater from a proposed dairy farm, following the municipality’s designation of that area as agriculture on its Future Land Use Map.  According to the DEP, the LDR would only require DEP approval under the three conditions described above.[110]

            In practice, however, courts have held that a local pollution control program requires the approval of the DEP regardless of preexisting conditions.[111]  In Fl. Rock v. Alachua County, the petitioner challenged the validity of a proposed local clean air ordinance in Alachua County.  The petitioner argued that because the ordinance was stricter than federal and state clean air requirements, and because the ordinance had not been approved by the DEP, it was invalid on the basis of the language in Section 403.182(1), Florida Statutes.  Although the court ruled in favor of the respondents, holding that the ordinance was not a LDR nor was it unconstitutional, it nonetheless applied a “plain reading” of Section 403.182, Florida Statutes, and established that such a local ordinance is unenforceable without the approval of the DEP.[112]  The Florida Rock holding conflicts with DEP’s position that local governments have a variety of avenues to implement local pollution control ordinances.  Furthermore, it confirms the roadblocks that a local government would face in complimenting zoning decisions designed to preserve open space through agricultural zoning and incentives, with LDRs or other pollution control ordinances designed to protect a municipality’s local environment from air and water pollution from an agriculture operation.

VI.  Agricultural Pollution and Costs of Using Agriculture to Preserve Open Space

            Agricultural sources of pollution remain largely unabated and unregulated by state and federal authorities.[113]  State growth management policies encourage local governments to embrace agriculture as a means of preserving open space.[114]  The safe harbor given to agriculture, combined with its use to preserve open space, could prove to be detrimental to a local environment. 

            A.  Overview

            “Farmers and ranchers are often the best stewards of the land.  We can achieve more by working with them and capitalizing on their intimate knowledge of the land they depend on and the land they love.”[115]  This statement by the Secretary of Interior represents a common perception of agriculture and is perhaps why the Growth Management Act and Florida’s Comprehensive Plan treat agriculture as a savior of Florida’s natural resources[116] despite the fact that agriculture is identified as the leading source of pollution of surface and groundwater.  This fact is due primarily to the over application of nutrients and pesticides to the ground, and the lack of erosion and sedimentation control practices designed to prevent the erosion of topsoil from denuded fields.[117]  In Florida, for example, the application of pesticides on row crops has increased steadily over time.[118]  

            Non-point source and point source pollution are largely responsible for the degradation of surface waters and groundwater resources in Florida and elsewhere.[119]  Non-point source pollution is a collection of diffuse sources that are introduced into waters of the state through wind, rain, or stormwater runoff.[120]  Examples of non-point sources include runoff from a farm, runoff from a parking lot, stormwater discharges, or return flow from agricultural irrigation systems.[121]  A point source is “any specific, confined and measurable place from which a pollutant is or may be discharged.”[122]  An example of a classic point source is a pipe or other man made conveyance that is discharging pollutants into a stream or river.[123]  A point source that is regulated under the clean water act, such as a discrete discharge from a municipal waste water treatment facility to surface water, would be subjected to highly regulated effluent limits and ongoing reporting requirements that measure compliance, in the form of discharge monitoring reports.[124]  

            Non-point source pollution poses more significant problems because of the complexities involved in the identification of its sources and its poorly established regulatory framework, particularly with respect to agriculture at the federal and state level.[125]   

            B. The Regulation of Non-point Source Pollution

            Reduction of non-point source pollution is one of the most significant challenges involved when adhering to mandates to improve the ambient quality of surface and groundwater in Florida.[126]  Based on a report to Congress conducted in 1989 from the National Research Council on Section 319 of the Clean Water Act, agriculture was the single largest source of non-point source pollution.[127]  In Florida, non-point source pollution is the largest contributor of contaminants to Waters of the State.[128]

            The composition of non-point source pollution from agriculture uses is the result of undocumented and unregulated discharges of fertilizers, pesticides, herbicides, and liquefied animal waste.[129]  The major impacts of non-point source pollution from agricultural operations are the introduction of hazardous substances (particularly nitrogen and phosphorous) to surface and groundwaters, the introduction of ammonia to the atmosphere, and the erosion of topsoil from unvegetated tracts of land which cause unnatural levels of sedimentation and turbidity in surface waters thereby reducing the capacity of surface waters and starving surface waters of oxygen.[130]

            Keeping with the spirit of the relaxed levels of regulatory authority imposed on agriculture by ALPA, the Growth Management Act, and Florida’s Right to Farm Act, the Federal Government and the State of Florida have been slow to regulate non-point source pollution from agricultural sources. 

            In 1972, the federal government first recognized non-point source pollution from agricultural sources in Section 208 of the Federal Water Pollution Control Act (CWA).[131]  Section 208 directed states to implement plans that would identify and control non-point source pollution from agricultural activities.[132]  In response to influential agricultural interests opposing “command and control regulation,”[133] states were required to comply with Section 208 “to the extent feasible.”[134]  As a result, only one hundred and seventy six plans were generated.[135]  Therefore, Section 208 was ineffective because of its seemingly voluntary and relaxed standard of compliance.[136]

            In 1977, Congress amended Section 208 of the CWA to include a “Rural Clean Water Program” which offered farmers a cost sharing program to implement best management practices[137] designed to mitigate sources of non-point source pollution.  Once again, this program was voluntary and received limited funding from congress.[138]

            In 1987, congress amended the CWA to include Section 319, officially adding the reduction of non-point source pollution to the goals of the CWA.[139]  Essentially, Section 319 required states to identify navigable waters that could not sustain additional non-point sources and still maintain water quality standards.[140]  Section 319 also directed states to arrive at methods of reducing identified non-point sources, such as through implementation of best management practices.[141]  Section 319 has been characterized as a failure, due in part to the actual appropriations as compared with the proposed levels of funding.[142]  In addition, the consequence of a state’s failure to comply with the requirements of Section 319 was insignificant.[143]  Instead of imposing financial penalties or incentives designed to encourage compliance with Section 319’s directives, the financial and political cost of regulating powerful agricultural interests was lifted from the states and transferred to the federal government.[144]   

            It is significant that in Florida, non-point source pollution from sources other than agriculture, such as urban areas, construction sites, or other impermeable or semi-permeable surfaces that generate storm water, is regulated through a permitting system.[145]  Non-point source pollution from agricultural lands is effectively exempt from notice and permit requirements in accordance with Rule 62-030(e), FAC.[146]  

            C. The Regulation of Point Source Pollution

            In Florida, the only agricultural entities that have been deemed to be a point source, and thus subject to NPDES permitting, are concentrated animal feeding operations (CAFOs) that contain a threshold number of animals,[147] or animal feeding operations (AFOs) that have a direct discharge to a surface water through a man-made conveyance device.[148]  For example, a facility must house at least 700 mature dairy cattle[149] or 2500 swine weighing greater than 55 pounds to be considered a CAFO.[150]  All other agricultural operations in Florida are considered non-point sources. 

            The federal government’s regulation of potential point sources from AFOs was held to be deficient by the Second Circuit Court of Appeals.[151]  The Court held that the rule requiring that CAFOS obtain NPDES permits was flawed from the perspective of being protective of the environment, because: 1) it allowed the issuance of NPDES permits without a full understanding of the quantity of nutrients being discharged as compared with the amount of nutrients being absorbed by vegetative uptake and volatilization, and 2) it allowed for the issuance of NPDES permits that lacked a farm’s terms for its management of nutrients and adequate public participation.[152]

            Florida’s treatment of AFOs has, at least in the Second Judicial Circuit, been deemed to violate the Florida Constitution and Florida Statutes.[153]  The Florida Constitution requires that “adequate provision shall be made by law for the abatement of air and water pollution…and for the conservation and protection of natural resources.”[154]  Florida Statutes exist that fulfill the requirement of the Florida Constitution,[155] however AFOs have been partially exempted from complying with Florida’s pollution control requirements,[156] and other agricultural entities have been exempted entirely from Florida Statutes that administer environmental control.

            Local governments that preserve open space through agriculture under the direction of Florida’s Growth Management Act, Florida’s Comprehensive Plan and perceptions of agriculture’s environmental stewardship, have perhaps been lured into environmental complacency.  The lack of regulatory authority given to local governments, and the safe harbor given to agriculture by federal and state government could be described as “a polluter’s dream come true, a nightmare for the rest of us.”[157]

[Part 2 in the next Reporter]

 

ENDNOTES