Copyright (c) 1995 by the Florida Bar
The Florida Bar Journal
November, 1995
69 Fla. Bar J. 82
COLUMN: GENERAL PRACTICE: FLORIDA AGRICULTURE: IN THE CROSSHAIRS
by William K. Crispin
William K. Crispin received his bachelor of science degree in agriculture economics from the University of Illinois and juris doctor degree from the John Marshall Law School. A partner with Crispin & Zipper, P.A., Homestead, Mr. Crispin's practice is focused on the representation of owners and operators in production agriculture with a focus on state and federal environmental laws, such as the Clean Water Act, pesticide regulations, and those governed by the water management districts.
This column is submitted on behalf of the General Practice Section, Carla S. Matthews, chair, and David A. Donet, editor.
TEXT:
[*82] The Florida Legislature defines agriculture as the science and art of production of plants and animals, useful to man, including, to a variable extent, the preparation of these products for man's use and their disposal by marketing or otherwise. The term includes horticulture, floriculture, viticulture, forestry, dairy, livestock, poultry, bee and any and all forms of farm products, and farm production. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 FLA. STAT. § 570.02(4).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This state's agricultural industry is a significant part of the foundation of Florida's economic structure, along with tourism and the construction industries. Florida farmers are among the most productive in the world, and in 1994, farmers in Florida sold products for a total of about $6 billion, nearly one-third of Florida's $18 billion economy. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Florida Agricultural Statistics Service, Florida Department of Agriculture and Consumer Services.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Agriculture is a "base" industry. Its products are sold outside of this state and bring dollars back into the Florida economy. According to the Florida Department of Agriculture, the overall economic impact of farm production in 1993 in Florida reached $45 billion. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Indeed Florida's agriculture industry and associated businesses are big time. Other than California, Florida agriculture is the most diverse in the United States, with over 250 commodities in commercial production. Approximately 500,000 individuals currently in the state's workforce are associated in one form or another with agriculture.
Agriculture in the State of Florida represents many impressive economicbased statistics: n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Florida Department of Agriculture and Consumer Services.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
. National leader in the production of oranges, grapefruit, watermelons, tomatoes, snapbeans, sweetcorn, cucumbers, eggplant, escarole-endive, green peppers, radishes, sugarcane, aquatic plants, and foliage;
. Producing 90 percent of the limes, mangoes, and tropical fish in the nation;
. Producing one strawberry out of every six grown in the nation;
. Leading milk-producing state in the southeast and ranking 11th nationally in milk sales;
. Ranking 10th nationally in the production of eggs and 12th nationally in the production of broilers;
. State farmers and ranchers sold more than 700,000 beef calves to out-of-state markets in 1993 -- recording sales of more than $360 million;
. Ranking second in the nation in the cash value of vegetable crops, accounting for more than 30 percent of the state's agricultural sales;
. Citrus sales topped $1 billion in 1993 and accounted for 20 percent of the state's total agricultural sales;
. Each Florida farmer's production feeds 128 people in the nation every day;
. Ninety percent of the nation's domestically grown winter fresh fruit and vegetables;
. Number one agriculture state in the southeast;
. Number two east of the Mississippi River; and
. Eighth leading agriculture state in the country with cash receipts of $5.7 billion in 1993.
Historically, agriculture as an industry has been relatively exempt from many federal and state laws and regulations. Much of this preferred status among industries had to do with the nature of production agriculture -- being very much a family-run enterprise. It is also clear that the stated public policy of Florida, concerning production agriculture, places a priority on the ability of the state to produce food and fiber for its citizens. Florida Public Law 83-310 declares that the public policy in this state with respect to agricultural production is as follows: n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 FLA. STAT. § 604.001.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
1. It is the public policy of this state and the purpose of this Act to achieve and maintain the production of agricultural commodities for food and fiber as an essential element for the survival of mankind.
2. The production of agricultural commodities in this state is a large and basic industry that is important to the health and welfare of the people and to the economy of the state.
3. A sound agricultural industry in this state requires the efficient and profitable use of water and energy and many other natural, commercial, and industrial resources.
4. The efficient and profitable use of energy and water resources in agricultural production in this state is often difficult to achieve because of problems that are not well known or fully understood by the people, such as weather, climatic changes, and market conditions.
[*83] 5. It is important to the health and welfare of the people of this state and to the economy of the state that additional problems are not created for growers and ranchers engaged in the Florida agricultural industry by laws and regulations that cause, or tend to cause, agricultural production to become inefficient or unprofitable.
Currently in Congress there has been much publicity about the ongoing debate and committee hearings concerning the re-authorization of the 1995 "Farm Bill." That act has historically been titled the Food Security Act, noting that production of food and fiber within the country has been an area of national security. n6 What then is threatening such a seemingly essential and vibrant industry? Agriculture is the last of the natural resource-based industries to avoid intense regulations. Other natural resource-based industries such as mining and forestry have been regulated for years. However, the exempt status for production agriculture is quickly eroding.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat.1354 (1985).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Passage of the Federal Clean Water Act of 1972 placed a federal mandate on the states to adopt water quality regulations. n7 The objective was to improve water quality, both on the surface and underground. There has been much debate and litigation relative to whether water discharge from agricultural operations should be labeled point sources of water pollution or nonpoint sources of water pollution. The significance of this labeling is that, to date, point sources of pollution have been actively pursued and regulations applied. Nonpoint sources of pollution, although more and more being recognized as a significant cause of present day water pollution problems, have been relatively exempt from regulatory enforcement. Much of the reason hinges on the significant administrative burden that the Environmental Protection Agency would have in expanding its regulatory enforcement to include nonpoint source pollution. However, with the advent of ground water pollution rising to the ranks of surface water concerns, the nonpoint source issue will be the next wave of regulatory enforcement of which producers will need to be fully advised.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Water Quality Regulations. Specifically, 40 C.F.R. § 131.1, et seq. Generally, 33 U.S.C. §§ 1251, et seq. The Clean Water Act also is referred to as the Federal Water Pollution Control Act, which is the title used by Congress in its second water pollution control endeavor; the Federal Water Pollution Control Act of 1948, Pub. L. No. 80-845, ch. 750, 62 Stat. 1155.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In 1972 the State of Florida passed the Florida Water Resources Act, which created five water management districts as the primary instruments of management for the state's water resources. The Florida Environmental Land and Water Management Act n8 was enacted during the same legislative session as the Florida Water Resources Act of 1972 and reflects a similar concern for the impact of uncontrolled growth on the natural resources of the state. Lands committed to agricultural use and purposes are within the scope.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 FLA. STAT. § 380.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Congress made the political decision in 1972, when it enacted the Clean Water Act, to exempt most production agriculture from the regulatory permit program that it applied to most other industries. n9 Nearly every major federal environmental statute exempted production agriculture at its inception. Now, like the proverbial snake in the grass, regulation is coiled and ready to strike at the industry.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 33 U.S.C. § 1343(L)(1).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This evolution within the Clean Water Act is well detailed in the article "Agricultural Water Pollution: From Point to Non-Point and Beyond" by Professor Drew L. Kershen of the Oklahoma College of Law. The Clean Water Act is merely one example of an expansion of regulation and its enforcement that directly affects production agriculture which previously it did not. Generally speaking, other areas of which producers are increasingly becoming aware are workers' compensation, minimum wage laws, and pollution-related acts such as the Fungicide, Rodenticide, and Insecticide Act. n10 Where at one time farm operators could apply their own chemicals on their operation without the necessity of licensing and inspections, now through what is commonly referred to as the Worker Protection Standard for Agricultural Pesticides, both federal and state enactments have looked at the agriculture exemption. n11
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 7 U.S.C. § 136, et seq.
n11 FLA. STAT. § 487.204.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is beyond the scope of this article to specifically address each federal and state law in which agriculture has seen an erosion of its exempt status from regulation. But the trend speaks loudly and clearly of the changing attitudes by the public away from production agriculture in general, and farmers specifically. The constant flow of conflicting nutritional information, dedicated to keeping us thin and fit, is breeding a distrust of food. There is a widening detachment from production agriculture brought about by boxed, packed, shrink-wrapped supermarket fare. This detachment is fully demonstrated by the news story of a woman suing a chicken company for damages, because she fainted from shock on finding a chicken head in a package of chicken parts.
Nowhere is this impact more powerful than here in the State of Florida, where federal mandates and the state's implementation of these mandates through state and local agencies are felt through the actions and policies of the state's water management districts.
The Florida Water Resources Act of 1972 created five water management districts as the primary instruments of management for the state's water resources. n12 The act, as amended, sets forth the five water management district boundaries, one of which is the South Florida Water Management District. All five water management districts, i.e., Suwannee River, St. John's, Northwest, Southwest, and South Florida, possess similar structures and authority.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 Florida Water Resources Act 1972 § 373.069.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The relationship between water and production agriculture is obvious. Discussing the water management districts as a focal point of increased agriculture regulation is indeed appropriate and underscores the primary message of this article. Florida agriculture, occupier of land and user of water, is the most prominent target of the ever-increasing permitting and regulation schemes of the water management districts. Although this author will be referencing the South Florida Water Management District (SFWMD), generally all five districts carry the same authority, physical autonomy, and multi-governmental agency support, both state and federal, in which to augment their own enforcement strategies.
With Lake Okeechobee, the Everglades National Park, Biscayne Bay, and Florida Bay as significant resources within the boundaries of SFWMD, it offers numerous examples of priority ecosystems which justly deserve protection. A review of the SFWMD's actions also demonstrates to what extent the State of Florida is willing to compromise its public policy toward production agriculture. Combining the legislation known as the Everglades Protection Act n13 and the Everglades Restoration Act, n14 the SFWMD has been bestowed with significant legislative authority to accomplish immediate and long-term compliance requirements. This authority includes [*84] issuing permits for acceptable surface water improvement and management (SWIM plans) n15 and eminent domain authority to carry out the objective of acquiring lands necessary for Everglades conservation and protection. Attempts by agricultural producers to contend that their operations are exempt from such programs have been to no avail. n16
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 FLA. STAT. § 373.4592.
n14 Id.
n15 Surface Water Improvement and Management.
n16 See Leonard v. Morgan, 548 So. 2d 803 (Fla. 1st D.C.A. 1989).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Agriculture producers generally have been very adept at adjusting their operations to be in compliance with the many layers of regulations that now affect them. However, in 1993, the National Performance Review, chaired by Vice President Al Gore, directed environmental agencies to develop a proactive approach to ensuring a sustainable economy and a sustainable environment through ecosystem management. The term ecosystem, although not new to the scientific community, is a new concept relative to the application of environmental regulations to production agriculture. From this direction, an Interagency Ecosystem Management Task Force became established, made up of the Army Corps of Engineers, the Department of Interior, and the Fish and Wildlife Agency. The SFWMD is its local agent and implementor of the interagency task force's plans of action.
Whether it be Everglades restoration in the form of enhanced water deliveries from Lake Okeechobee to Florida Bay, or retooling the Central and South Florida project, which relates to flood protection, the SFWMD has the funding and staff support of several federal agencies in carrying out their various programs. The agricultural producers in South Dade County have felt, firsthand, the awesome political and economic power that can be wielded by such a collectively driven regulatory force.
February 1995 saw the SFWMD acquire 5,400 acres of prime farm land in South Dade County, commonly referred to as the Frog Pond. It was not until the combined efforts and resources of the Federal Interagency Task Force that we saw a blitzkrieg effort with the Army Corps of Engineers and SFWMD leading the charge. The huge resources, both economic and human, mounted by the joint cooperative agencies and SFWMD was too much for the landowners and farmers to battle. It is one thing to reconcile the rules and regulations regarding water quality and use -- and the agriculture industry in general has shown how creative and adaptive it is to stay in compliance with the increasingly restrictive regulations in this area. Land acquisition, on the other hand, is an entirely different circumstance which results in abolition of production. The Frog Pond acquisition is not the only example; the Kissimmee River project saw hundreds of acres acquired, as did the dairy plan, n17 dealing with acquisition of the majority of dairies located around Lake Okeechobee.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n17 A SWIM regulation under Rule 40E-4, F.A.C., Surface Water Management.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Future plans call for acquisition of land areas proceeding north of the Frog Pond, commonly referred to as the Rocky Glades and the 8 1/2-square-milearea adjacent and contiguous to Everglades National Park. Also lands proceeding east of the Frog Pond over the lower east coast of the state are on the acquisition wish list. n18
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 Central and Southern Florida Project, Integrated General Reevaluation Report and Environmental Impact Statement Canal 111, South Dade County, FL US Army Corps of Engineers, February 1994, Appendix C.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
If agriculture's contribution to Florida's economy is to continue at the same level as highlighted at the beginning of this article, the industry will need to become more active in advocating its position. As agriculture's constituency has dwindled, nationwide, to less than three percent of the voting populace, so has the ability of production agriculture to be heard. Producers need to maintain comprehensive records of past practices and future plans that are site specific to their farm operation. Much of the scientific research used as a basis for determining regulatory approaches fulfilling statutory objectives is based on computer-generated models that reference general regions. A producer's site-specific database presents an opportunity to demonstrate compliance with whatever regulation is being reviewed and shows the regulatory agency that producer's history of being a good steward.
There is no mystery as to why agriculture has grown and prospered in this state and nation. It is clearly a result of the collective endorsement of the citizens that food sustenance be a priority and regarded as a national security interest. This attitude is not altogether lost and only through education and solid public relations with its neighbors can agriculture re-establish its significance in the economic foundation of Florida.
