How landowners, farmers, agricultural businesses, residents, and other affected people can use the County’s own charging document to test jurisdiction, notice, proof, causation, remedy, and due process before the County adds explanations later.
The first defense: control access before DERM can build its file
⛔ THE FIRST DEFENSE — NO ENTRY: No Voluntary Consent; Require Lawful Authority
If a charged violation depends on the existence or boundary of a wetland or other surface water, DERM must prove that technical predicate under the applicable Rule 62-340.300 pathway using reasonable scientific judgment and reliable information. Depending on the pathway and facts, the source record may involve vegetation, soils, hydrologic indicators/data, altered-site information, maps, photographs, field observations, forms, or other records. Do not convert the rule into a single universal checklist. Declining voluntary consent to entry prevents the owner from voluntarily supplying access for additional evidence-gathering, but it does not erase evidence the County already has or prevent entry supported by lawful authority, compulsory process, or another legally valid basis.
In plain terms Voluntary access can give the County additional site evidence. The owner may decline consent and require the government to identify the legal basis, factual predicate, credentials, purpose, and scope for entry. But “No Entry” is not a promise that a warrant is always required: open-fields doctrine, curtilage rules, § 24-48.11 when applicable, warrants, court orders, and other lawful authority must be analyzed. Never physically obstruct an official who asserts or presents lawful authority; state nonconsent, request the authority, document the event, and preserve objections.
⚖️ What “No Entry” Means — and What It Does Not
NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY is the owner’s standing position. Refuse voluntary consent in writing and require the government to identify the exact lawful authority on which it relies, including any statute, ordinance, warrant, or court order. Do not permit the agency to characterize the owner’s assertion of constitutional and private-property rights as consent, waiver, admission, or evidence of a violation. If compulsory process is later presented, preserve all validity and scope objections and document what the government does.
Worked example — the fork at your gate
DERM posts a Field Notice claiming you “cleared and filled a wetland without a Class IV permit.” No delineation was ever done. Days later a DERM officer is back at the gate: “Mind if we come take a quick look to confirm?” Everything turns on what you do next.
⛔ Branch A — you open the gate (what NOT to do)
You unlock the gate and sign the “consent to inspect” form. DERM walks the property, augers soil samples, fills out a 62-340 data form, flags a boundary line, and photographs what it will later call hydric soils and wetland plants. The file may now contain later-created site evidence generated after voluntary access. That can weaken an argument based solely on absence of evidence, but it does not erase objections concerning what existed at issuance, the relevant violation date, notice, prejudice, reliability, foundation, disclosure timing, or whether the later evidence actually proves each charged element.
✅ Branch B — you decline to consent (the first defense)
Do not voluntarily open the gate or sign an access authorization merely to allow evidence-gathering. In writing, ask what legal authority is asserted for entry, require proper notice and scope, and obtain legal advice before consenting. This no-consent position does not guarantee that DERM lacks evidence or authority. At the hearing, test the actual disclosed record: demand the identified Rule 62-340.300 pathway, source evidence, and boundary/location foundation. If material proof is missing, object and seek the relief available in that forum while preserving the issue for judicial review.
The lesson in one line Do not voluntarily supply access merely so the County can collect additional site evidence. Preserve nonconsent, require lawful authority, and then test whatever evidence and authority the County actually possesses.
Worked example — the pressure play
The officer tries a softer key: “This is easier for everyone if you just let us in today — otherwise it has to get formal.” Treat that as a request for voluntary cooperation, not proof that the County lacks evidence or is acting unlawfully. The owner may decline voluntary consent and require the legal authority, scope, and process to be identified. Your answer is the same, and it is not a challenge — it is a polite refusal to volunteer:
- “I am not consenting to an inspection today, and I am not signing an access form.”
- “Please tell me in writing what legal authority requires me to grant entry.”
- “Provide proper notice and process, and I will respond through my attorney.”
Worked example — if an inspection happens anyway
Sometimes entry occurs — DERM returns with a warrant, or someone at the property lets them in. That is not the end; it is the moment to turn their inspection into evidence for you. Shadow the visit and log it: who entered, what day and time, what they measured or sampled, and exactly where. Take your own dated photos and your own measurements right beside theirs. And say it on the record: I object to any use of later-created inspection material to the extent it causes unfair surprise, lacks foundation, fails to establish conditions on the relevant date, or is used to cure a notice or proof defect without a meaningful opportunity to respond. That objection now lives in the file the circuit court will read.
🎯 Do This Now — Send These Letters (they are already in this manual)
The first defense is not just silence at the gate — it is a paper trail that puts your objections on the record from Day 1. Do not draft from scratch. Open each template in this manual, fill in the bracketed fields, and send it, in this order:
- The Day-1 Demand Letter — send immediately: demands the file, freezes the record, and starts the due-process clock the moment you learn of the NOV.
- The NOV Response — Written Demand to Vacate for No F.A.C. 62-340 Delineation — puts DERM on notice, in writing, that the NOV has no delineation behind it and demands that it be vacated.
- The Public Records Demand — take DERM’s own file apart: every data form, field note, photo, and internal communication — or prove the emptiness that is your defense.
- The Model Response Letter (SFWMD parallel) — the reusable “prove your authority and jurisdiction first” letter, adaptable to any agency asserting wetland or “works” jurisdiction over a bona fide farm.
Send in writing, keep proof of service, and save every copy — see the record-preservation / litigation-hold steps that accompany the NOV Response letter. Every objection and demand you send becomes the record the circuit court and the District Court of Appeal will review.
Rights Framework — Not Legal Advice
This explains what the law asks of the agency and the rights and objections available to an affected property owner or party. It is educational, not legal advice, and it does not create an attorney-client relationship. The owner's standing position is NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY. The government must identify and defend every source of claimed entry authority, factual predicate, exception, warrant, order, and scope limitation. The owner concedes none of them by receiving or answering a notice. Verify the current text of Rule 62-340, F.A.C. and § 373.421, F.S..
Once the notice is posted, read it apart. The rest of this chapter turns the County’s own charging document into your evidence — the 40 defects visible on the face of the NOV.
Why this module matters. A field notice left on the front gate is not an abstract legal document. It is the first government document telling a landowner, farmer, agricultural operator, business, tenant, resident, or other affected person to stop activity, contact DERM, apply for a permit, or alter the property. You should preserve the original notice exactly as received and learn to read both what it says and what it does not say.
Exhibit 1 — the posted Field Notice of Violation and Orders to Cease and Desist
The posted Field Notice, reproduced exactly as issued (Folio 30-5815-000-0795, DERM Case CLIV-20240048). Preserve the original exactly as found — see “Preserve the original notice as physical evidence,” below.
Learning objective
Use the notice itself as a controlled teaching exhibit. Separate conclusions from evidence, force every undefined term into the open, preserve every omission in the administrative record, and avoid overstating defects that merely require the County to prove additional facts at the hearing.
A. The foundational principle: a government conclusion is not the underlying proof
The notice appears to accuse the operator of “clearing a wetland without a Class IV Permit and filling.” That sentence contains several conclusions — wetland, clearing, filling, permit requirement, responsibility — but the face of the notice does not itself supply all of the evidence needed to establish those conclusions. Your task is to require DERM to prove each proposition separately in the administrative record.
Core hearing theme. Do not allow the case to collapse into “DERM says wetland, therefore violation.” Make the County prove: where the wetland is, how it was determined, what exact act occurred, who performed it, why a permit was required, why agricultural protections do not apply, and why the demanded remedy is authorized and measurable.
B. Forty defects and teaching points visible from the notice itself
The points below do not all produce automatic dismissal. Some are notice defects, some are missing proof, some are foundation issues, some concern the remedy, and some become important only if DERM relies on additional evidence later. The teaching objective is to know what each omission allows you to demand and preserve.
1. The notice does not prove that the property is a wetland
The notice states that unauthorized work occurred in, on, or upon wetlands, but it contains no wetland delineation, boundary, field-data form, vegetation analysis, hydric-soil findings, hydrology findings, sample points, GPS coordinates, transects, acreage determination, or methodology explanation. The word “wetland” is therefore a conclusion on the face of the notice, not the underlying scientific record.
How to use it: Deny that the notice itself establishes wetland jurisdiction and require the County to place the underlying methodology and site-specific evidence into the record.
2. No F.A.C. Chapter 62-340 methodology appears on the notice
Nothing on the face of the notice identifies that Chapter 62-340 was applied, who applied it, which rule provisions were used, what vegetation was identified, what soils were examined, what hydrologic indicators existed, where observations were made, or what boundary resulted.
How to use it: Ask the witness to identify every Chapter 62-340 record supporting the allegation. Preserve the distinction between a narrative statement that “wetlands were observed” and the underlying field evidence and methodology.
3. No location of the alleged wetland is identified
A folio number identifies the parcel, not the alleged wetland boundary within the parcel. The notice contains no coordinates, dimensions, survey points, marked aerial, acreage, compass directions, distances from boundaries, or mapped violation area.
How to use it: Ask DERM to identify the precise location and boundary of the alleged wetland and the precise location of each alleged act.
4. The alleged “clearing” is undefined
The notice does not state what vegetation was removed, the species involved, acreage, equipment, date, whether the inspector observed the act, whether mowing or harvesting was involved, or whether routine agricultural maintenance was being characterized as clearing.
How to use it: Force DERM to define the charged conduct. Ordinary mowing, harvesting, pruning, crop maintenance, invasive-plant removal, and new land clearing are not factually identical activities.
5. The alleged “filling” is undefined
The notice does not identify the material, source, composition, quantity, depth, location, date, or person who placed it. It does not distinguish soil, rock, gravel, organic mulch, compost, chipped vegetation, agricultural residue, or native material.
How to use it: Require DERM to identify exactly what material it calls fill, the quantity and location, the legal definition relied upon, and the evidence connecting the material to the person or entity being cited.
6. The notice does not identify who performed the alleged activity
The owner/operator line identifies a person associated with the property, but the notice does not state that the named person cleared, filled, directed, hired, authorized, or knowingly caused the alleged conduct. The contractor/facility line appears blank.
How to use it: Separate ownership from causation. Require proof of whatever responsibility element the ordinance actually requires.
7. No date of the alleged clearing or filling is stated
An inspection date is not necessarily the date the alleged act occurred. The notice says the representative inspected and documented a condition; it does not state that the inspector personally observed the clearing or filling taking place on that date.
How to use it: Ask whether the witness saw the act occur. If not, require the evidentiary basis for who did it and when.
8. The notice does not distinguish an existing condition from an observed violation
DERM may have observed cleared ground, mulch, vegetation, rows, or material. Observation of a condition does not automatically establish who created it, when it was created, whether a permit was required at that time, or whether it was agricultural or preexisting.
How to use it: Build chronology. Demand historical evidence, inspection history, aerials, and testimony tying the alleged condition to the charged respondent and time period.
9. No agricultural-use analysis appears on the notice
The notice does not identify agricultural classification, crop production, agricultural history, Section 193.461, Section 373.406, normal farming practices, or any analysis of agricultural protection before enforcement was ordered.
How to use it: Offer agricultural classification and operational evidence and require DERM to state whether agricultural protections were considered and why DERM contends they do not apply.
10. The notice does not explain why a Class IV permit was legally required
The document jumps from the alleged clearing/filling to an after-the-fact Class IV permit demand without explaining the permit trigger, exceptions considered, agricultural treatment, or legal reasoning connecting the facts to the permit requirement.
How to use it: Require the exact code subsection, elements, and factual findings supporting permit applicability.
11. The corrective demand presupposes the disputed wetland premise
The notice appears to give two paths: submit an after-the-fact Class IV application, or return the property to wetland grade/elevation and remove alleged fill. Both assume the wetland and violation conclusions are correct before you have had a hearing.
How to use it: Preserve the objection that corrective options should not be treated as admissions and insist on a meaningful route to contest jurisdiction and liability.
12. “Return the property to wetland grade and elevation” is vague
The notice does not state a target elevation, vertical datum, benchmark, survey, prior grade, restoration limits, cross-section, or engineering specification.
How to use it: Ask: What exact elevation is ordered? Where is it stated? What evidence establishes the prior grade? A property owner or operator cannot safely restore to an undefined number.
13. “Remove the fill material” is undefined
The notice does not identify which material must be removed, from where, in what quantity, or to what depth. If DERM considers organic agricultural mulch or native material to be fill, that characterization is not explained on the face of the notice.
How to use it: Require material-specific and location-specific findings before any restoration remedy is imposed.
14. No preexisting baseline condition is identified
A restoration command logically assumes a prior condition, yet the notice does not identify the prior grade, elevation, vegetation, soil condition, hydrology, or baseline wetland condition.
How to use it: Require DERM to establish what condition allegedly existed before the violation and the competent evidence supporting that baseline.
15. No quantified environmental harm is identified
The notice does not describe loss of wetland function, altered hydrology, blocked flow, habitat effect, water-quality effect, acreage impacted, or measurable ecological injury.
How to use it: This may not eliminate a strict regulatory charge, but it matters when DERM seeks restoration, mitigation, penalties, or other proportional remedies.
16. The notice does not separate the factual elements of each alleged violation
“Clearing a wetland without a Class IV Permit and filling” compresses potentially distinct theories into one handwritten statement. The notice does not state whether clearing, filling, unpermitted work, and permit failure are separate charges or one theory.
How to use it: Request element-by-element findings and require DERM to identify which facts prove each charged violation.
17. A code citation does not substitute for factual particularity
The notice references Section 24-48(1), but citing a law is different from explaining the facts that satisfy each legal element.
How to use it: At hearing, separate “what law is cited” from “what evidence proves the cited person or entity violated it.”
18. No evidence file is attached to the posted notice
The notice does not attach photographs, field notes, inspection reports, GIS layers, soils information, hydrology records, vegetation data, wetland forms, maps, or witness materials.
How to use it: Use this to explain why prompt disclosure and meaningful preparation time matter before technical evidence is admitted.
19. The appeal-rights area appears physically obscured
On the preserved image, a business card covers a substantial portion of the printed lower section that appears to contain information concerning further enforcement and review. If the notice was posted in this configuration, the physical condition of the notice may itself be important due-process evidence.
How to use it: Preserve the original exactly as received. Ask DERM to prove what appeal and review information was actually visible when the notice was posted. Do not assume obscuration alone automatically voids the notice; make the factual record.
20. A 48-hour contact demand appears more prominent than review rights
The notice visibly directs contact with DERM within 48 hours and corrective action within 30 days, while the lower printed review language appears partly obscured in the preserved image.
How to use it: Contrast the clarity of the government demand with the clarity of the procedure for contesting it, and preserve any resulting prejudice.
21. Personal service is not apparent from the notice
The form appears to indicate posting, while the recipient-name/signature fields do not clearly identify a recipient. That creates a factual question about when the recipient actually received notice and what service method DERM used.
How to use it: Do not simply declare posting invalid. Require DERM to prove the method, date, location, statutory authority, and compliance with any service requirements tied to deadlines.
22. The identity of the recipient is unclear
The lower-left received-by area contains markings, but the recipient name and title are not clearly established on the face of the preserved notice.
How to use it: Require proof of who received or discovered the document and the date from which DERM claims deadlines began to run.
23. The issuing employee's enforcement authority should be established
The notice identifies an employee and job title, but the notice itself does not explain the employee's authority to issue the cease-and-desist command, whether a Director authorized it, or whether enforcement authority was delegated internally.
How to use it: Ask for the legal and administrative authority supporting issuance of this particular order by this particular official.
24. Technical qualifications are not shown on the notice
A job title does not, by itself, establish education, wetland-delineation training, soils expertise, hydrology expertise, certifications, or Rule 62-340 experience.
How to use it: If technical opinions are offered, establish qualifications on the record before opinion testimony is accepted.
25. The notice does not identify who actually made the wetland determination
The person who posted or signed the notice may not be the person who performed the wetland analysis. The face of the notice does not identify whether the conclusion came from the inspector, another biologist, GIS staff, a consultant, a prior map, or another agency.
How to use it: Expose any reliance on another person's work and require the underlying author, data, qualifications, and foundation.
26. There is an apparent chronology/date issue that requires explanation
The preserved notice contains a handwritten date (8/1/2024) that appears different from the later typed case/date reference in the publication (May 28, 2025). A discrepancy is not automatically invalidity, but chronology matters.
How to use it: Demand the original enforcement file, inspection date, posting date, case-creation date, photograph metadata, document creation/modification history, and explanation of any later annotations.
27. The notice indicates the posting was photographed, creating discoverable evidence
The form appears to mark “Photographed: Y.” If DERM photographed the posting, those original photographs may show exactly what was posted, where, when, and what portions of the notice were visible.
How to use it: Demand original image files, metadata, timestamps, GPS information if available, and all related photographs rather than only selected copies.
28. The notice does not state that DERM actually observed the cited person performing the act
“Inspected and documented unauthorized work” is not the same as “personally observed Respondent clearing or filling.” The wording leaves open whether the inspector saw an act or inferred causation from a condition.
How to use it: Separate observation from inference during cross-examination.
29. No evidence on the face of the notice connects the condition to the cited person or entity
The notice itself provides no witness statement, photograph of the cited person acting, delivery ticket, contractor record, video, admission, or other causal evidence.
How to use it: Require the County to establish the evidentiary chain tying the cited person or entity to the alleged conduct.
30. The cease-and-desist command may be overbroad for an operating farm
The notice orders cessation of unauthorized work/activity but does not clearly distinguish the charged conduct from lawful ongoing planting, watering, feeding, harvesting, mowing, maintenance, irrigation, or equipment movement.
How to use it: Require DERM to identify precisely which activity must stop so the property owner, operator, resident, or other affected person is not forced to guess at the risk of penalties, property loss, business loss, or crop loss.
31. The notice does not say whether normal farming may continue
For a working agricultural operation, silence about ordinary farming can create immediate practical uncertainty and economic harm.
How to use it: Ask DERM to state on the record whether specific ongoing farming activities were prohibited and under what authority.
32. No emergency factual basis is stated for immediate cessation
The notice does not describe a continuing discharge, imminent environmental injury, danger to health, or other emergency circumstance on its face.
How to use it: If DERM later relies on emergency necessity, require the factual basis and authority for extraordinary immediate treatment.
33. The notice provides no visible pre-deprivation fact-finding process
The recipient is ordered to stop, contact DERM, apply for a permit, or restore the property before the notice itself demonstrates how the recipient can contest the wetland and violation premises.
How to use it: Preserve any due-process objection based on the actual procedure afforded, the opportunity to contest, timing, and resulting prejudice.
34. The after-the-fact permit demand can prejudice an authority / applicability defense
Applying for an after-the-fact permit may later be characterized as recognizing permit applicability or accepting a disputed regulatory premise, depending on the application and circumstances. Whether an application has any admission, waiver, exhaustion, or preservation effect depends on governing law and the actual language used; do not assume that filing automatically concedes jurisdiction.
How to use it: The teaching point is to understand why a permit application is not neutral paperwork when jurisdiction and permit applicability are disputed.
35. The notice does not explain whether its two corrective paths are truly alternatives
The handwritten “OR” suggests alternatives, but the notice does not explain whether submission of an application suspends restoration, whether penalties accrue, what happens if the application is denied, or whether an appeal stays either deadline.
How to use it: Require clarification on the record and avoid assumptions about tolling or automatic stays.
36. The notice does not clearly explain what happens if the recipient contests jurisdiction
The visible corrective choices focus on permit or restoration. A separate route for disputing wetland status, agricultural protection, or permit applicability is not clearly stated in the handwritten corrective section.
How to use it: Make the contest itself explicit in writing and in the hearing record; do not allow silence to be treated as acceptance of the corrective premise.
37. No penalty amount is stated on the face of the notice
The form references enforcement/penalty consequences, but the recipient cannot determine from the face of the notice the amount, accrual method, maximum exposure, or lien consequences.
How to use it: Demand the precise penalty authority, amount, accrual date, and consequence before financial sanctions are imposed.
38. The evidentiary burden and standard are nowhere stated on the notice
The notice does not tell the recipient what DERM must prove, what burden applies at hearing, or what evidence constitutes proof of wetland, clearing, filling, responsibility, and permit applicability.
How to use it: Require the hearing officer and County to identify the governing burden and apply it element by element.
39. The notice collapses jurisdiction and merits into one conclusion
The notice effectively treats wetland status, activity, responsibility, permit requirement, agricultural defenses, and remedy as a single proposition. They are analytically separate questions.
How to use it: Make the hearing follow the questions separately: jurisdictional resource, charged act, actor/responsibility, permit trigger, agricultural protection, and remedy.
40. The notice itself can become Respondent's affirmative evidence
You should not treat the notice only as the County's paper. Its omissions, ambiguous language, physical condition, service markings, dates, corrective wording, and photographed-posting notation can be used to test the County's later testimony.
How to use it: Authenticate the original as the complete document left at the gate and use it during cross-examination. If the County later adds details not present on the notice, make the distinction clear in the record.
C. What the notice proves — and what it does not prove — on its face
On its face, the notice principally shows that a County employee inspected the parcel, DERM asserted unauthorized clearing/filling in wetlands, cited a County Code provision, directed immediate cessation, required contact within a short period, demanded corrective action within approximately 30 days, and appears to indicate that the posting was photographed.
The notice does not, by itself, establish the full scientific, factual, causation, agricultural, jurisdictional, or remedial predicates behind those conclusions. Those matters must be supplied through competent evidence if they are necessary elements of the County’s case.
D. Cross-examination drill: use the notice as the question sheet
The agricultural landowner or operator can hand the witness the notice and ask short, controlled questions. The objective is not to argue after every answer. The objective is to build a sequence of clear admissions showing what is — and is not — contained in the charging document and what additional proof the County is relying upon.
- Show me the Rule 62-340 delineation on this notice.
- Show me the vegetation data on this notice.
- Show me the soils data on this notice.
- Show me the hydrology data on this notice.
- Show me the wetland boundary on this notice.
- Show me the GPS coordinates of the alleged clearing.
- Show me the acreage allegedly cleared.
- Show me the material identified as fill.
- Show me the quantity and depth of the alleged fill.
- Show me where this notice states that I personally placed that material.
- Show me the date the alleged filling occurred.
- Show me where the notice evaluates agricultural classification.
- Show me where the notice evaluates an agricultural exemption or protection.
- Show me the target elevation for the restoration you ordered.
- Show me the survey datum or benchmark.
- Show me the evidence of the preexisting elevation.
- Show me the specific agricultural activity the notice ordered me to stop.
- Show me the appeal instructions that were visible when the notice was posted.
- Was this notice posted rather than personally handed to me?
- Did you personally witness me clearing or filling anything?
Cross-examination discipline. If the answer is “that information is in another report,” do not argue. Identify the report, ask when it was created, who created it, whether it existed when the notice was posted, whether it was provided to the recipient, and move on. The difference between the original charging document and later-developed evidence may itself matter to notice, preparation, credibility, and due process.
E. Model threshold statement for the administrative record
Use it: “A government conclusion is not evidence of every fact necessary to support that conclusion. The posted Field Notice uses the words wetland, clearing, filling, and Class IV permit, but the face of the Notice contains no Chapter 62-340 methodology, no wetland boundary, no soils, vegetation, or hydrology data, no location or quantity of alleged fill, no date or witness identifying who performed the charged activity, no agricultural-protection analysis, and no measurable restoration elevation. Respondent denies each unsupported factual and jurisdictional conclusion and requires Miami-Dade County to prove every necessary element through competent evidence in the administrative record.”
F. Teaching caution — do not overclaim
A missing item on the face of the field notice does not automatically mean DERM can never prove that item later. The reader should distinguish among:
- A defect in notice or service that may independently affect due process or deadlines.
- A missing evidentiary foundation that DERM may attempt to supply at the hearing.
- A disputed legal issue, such as permit applicability or agricultural protection.
- A remedy defect, such as an undefined restoration elevation.
- A credibility or chronology issue created when later documents differ from the original notice.
The strongest record is accurate: preserve the omission, object when appropriate, require the County to cure or prove the point, state the prejudice caused by late or missing information, and obtain a ruling.
G. Preserve the original notice as physical evidence
Keep the original notice in the same condition in which it was found at the gate. Do not remove cards, tape, staples, annotations, or other physical features before photographing and preserving them. Make color photographs of the front and back, record the date and location where it was discovered, and preserve any surveillance footage or witness who saw the posting. If the appeal language was obscured when posted, the condition of the original document may be more important than a later clean copy produced by the County.
H. Official authority and verification links
I. One-page hearing-to-court checklist
| Stage | Do not leave the stage without |
|---|
| Administrative hearing | Opening statement; Exhibit 1 admitted/proffered; all evidence identified; objections and prejudice stated; cross-examination completed; excluded evidence proffered; material rulings obtained; complete recording/transcript requested; final written order obtained. |
| First-tier certiorari | Deadline verified; rendition date confirmed; record/appendix assembled; each claim tied to record cites; first-tier standard correctly stated; separate stay filed if needed. |
| Second-tier certiorari | Circuit decision identified; narrow second-tier standard satisfied; clearly established law/due-process issue identified; no attempt to relitigate factual weight. |
| Parallel remedies | Independent cause/remedy elements confirmed; correct court/agency identified; exhaustion/ripeness checked; deadline and notice requirements calendared; requested relief tailored to the specific legal injury. |
SFWMDSouth Florida Water Management District — a separate state regional agency
Everything inside this box concerns the South Florida Water Management District and its state Environmental Resource Permit program under Part IV of Chapter 373, F.S. It is not Miami-Dade County DERM (a county home-rule program), and not a federal agency. Each agency is answered under its own law.
Companion example — the SFWMD parallel, and a model response
Miami-Dade County and the South Florida Water Management District can have overlapping but legally distinct roles in the same property matter. Their simultaneous or sequential involvement does not, by itself, prove coordination, retaliation, or a shared motive; establish any coordination from records. If SFWMD issues an Investigative Notice, analyze that notice under the District’s own Part IV authority, exemptions, procedures, and evidence. The lesson of this module applies to the District: a government notice is not proof, the agency must operate within the law and prove its own authority and jurisdiction, and the landowner concedes nothing. The law binds the government as much as the citizen.
The two District letters below are reproduced exactly as received in one real matter (Enforcement Case No. 23523). The second one matters: after the landowner responded and conceded nothing, the District closed the enforcement case with no action necessary. That is the point of this example — an ERP enforcement action can be met on the law and resolved in the landowner’s favor. What follows the letters is a model response, written in the manner this manual teaches, that a landowner could adapt.
The District’s Investigative Notice (as received)
The District’s closure of the enforcement case (as received), with the location map and envelope
The authorities: how to test whether an agricultural exemption or other limitation defeats the particular ERP theory — agency by agency
Every agency must be met under its own law. The defenses that answer Miami-Dade DERM are not identical to the defenses that answer the District, because the two agencies draw their power from different sources. DERM is a county home-rule program whose reach depends on the county code (Chapter 24) and on whether the State has delegated Environmental Resource Permit (ERP) authority to it under §373.441, F.S. The District is a regional agency that administers the State’s ERP program directly under Part IV of Chapter 373, F.S. So against the District the delegation question is ordinarily not the threshold issue. The principal questions are what Part IV activity the District alleges, whether an ERP would otherwise be required, and whether §373.406(2), §373.406(6), another exemption, or a binding §373.407 determination applies. Agricultural classification alone does not decide every element of the exemption.
1. The express agricultural exemption — §373.406(2), F.S. This is a direct statutory exemption from the very ERP program the District invokes. In its own words:
“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.”— §373.406(2), Florida Statutes
Those features make §373.406(2) a potentially powerful defense when its elements are proved: the text reaches qualifying agricultural topography alteration, expressly applies to land classified agricultural under §193.461, and expressly applies to activities that otherwise require a Part IV ERP. But the exemption is element-specific. The alteration must be for purposes consistent with the normal and customary practice of the occupation in the area; it cannot have the sole or predominant purpose of impeding or diverting surface waters or adversely impacting wetlands; and the exemption does not apply to activities previously authorized by the listed ERP, MSSW, or Chapter 403 dredge-and-fill permits. Section 373.406(4) also says the rights and restrictions in §373.406 are enforced by the governing board or DEP and do not themselves create a private cause of action. If applicability is disputed, §373.407 allows the District or landowner to request a binding FDACS determination, and gives FDACS exclusive authority to make that exemption determination.
Applied to this case — test the factual claim that the material called “fill” is organic agricultural mulch. Where the county or District alleges “filling,” the owner may assert and document the factual position that the material is organic mulch used for an agricultural purpose. Do not treat the word “mulch” as a legal conclusion. Identify the material’s composition, source, quantity, placement, purpose, effect on grade or water flow, agricultural use, and any applicable BMPs; then test the actual charged definition and permit theory. “Fill,” “solid waste/debris,” and “contaminants” arise under different legal provisions and proof elements. Section 373.406(2) may exempt a qualifying agricultural topography alteration if all statutory elements are met. Section 823.14(6) and §163.3162 principally limit specified local-government regulation when their own predicates are satisfied; they should not be described as independent bars to SFWMD’s direct Part IV authority.
And a “contamination” theory requires careful separation of the special §403.182(11) conversion provision from ordinary local enforcement authority. Section 403.182(11), Florida Statutes — added by Chapter 2022-127 — gives the Secretary of Environmental Protection exclusive jurisdiction to set standards or procedures for evaluating environmental conditions and assessing potential contaminant liability on land classified agricultural under §193.461 and being converted to a nonagricultural use; paragraph (b) bars delegation of that specific authority to local government. The same paragraph expressly says the subsection does not preempt a local pollution-control program’s enforcement authority. Therefore, use §403.182(11) only when its conversion predicate and subject matter actually fit the agency’s theory. If the land remains in agricultural use, do not stretch this conversion-specific provision into a blanket contamination immunity; instead require the agency to identify the particular contaminant, standard, source, jurisdiction, and evidence it relies upon, while separately asserting every applicable agricultural protection.
2. The de minimis exemption — §373.406(6), F.S. Separately, §373.406(6) authorizes the District or DEP, case by case, to exempt activities it determines will have only minimal or insignificant individual or cumulative adverse impacts on district water resources. A written request and written agency determination are required, and the activity may not commence in reliance on this exemption before that confirmation.
3. If wetland status or a wetland boundary is material to the charged ERP theory, require pathway-specific proof under F.A.C. Chapter 62-340. If the violation or permit theory depends on a wetland boundary, require the District to support that boundary under the statewide methodology and identify the Rule 62-340.300 pathway actually used. In the former 8.5 Square Mile Area (Las Palmas), federal and regional water-management works may be relevant to the hydrologic baseline, but parcel-specific effect must be proved rather than assumed. Managed or engineered water does not automatically defeat wetland status. Also remember that the ERP program can regulate stormwater systems and other Part IV activities in uplands; absence of a wetland does not, by itself, eliminate every possible ERP theory.
4. Separate local-government agricultural protections from the District’s own Part IV exemptions. Section 823.14(6) limits specified local-government regulation of qualifying bona fide farm operations. Section 163.3162 likewise addresses a “governmental entity” as defined there, and that definition excludes a water management district. Those provisions can therefore be highly relevant to Miami-Dade DERM while not independently displacing SFWMD’s direct Part IV authority. For SFWMD, lead with §373.406 and, when disputed, the §373.407 FDACS determination process. Analyze every statute separately and preserve any local/delegated-authority issue only against the actor to which it actually applies.
5. The federal layer — and why it is the District’s law, not the point against it. At the federal level, the Clean Water Act §404(f) (33 U.S.C. §1344(f)) similarly exempts normal farming, ranching, and silviculture from federal dredge-and-fill permitting, and Public Law 101-229 governs the federal water-delivery project that engineered this area’s hydrology. Those federal provisions govern the federal programs (the U.S. Army Corps’ §404 program and the National Park water deliveries), not the District’s state ERP program. That is the point: each agency is answered under the law governing its own program. Similar agricultural exemptions at different levels do not merge their elements, jurisdiction, or remedies.
6. How each protection applies to the District specifically. The no-entry protection is a good example of why the agency matters. The District’s Investigative Notice asks the owner to “grant District staff access to the property.” That is a request for consent. The owner’s position is NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY. The owner may refuse voluntary consent and require the District to identify the exact lawful authority it claims permits entry, including the factual predicates and scope; where compulsory judicial process is required, require the District to obtain and present it. The owner does not concede any claimed open-fields, statutory, regulatory, or other exception to the warrant requirement; those are issues for the government to assert and prove under the facts and governing law. In an enforcement proceeding, require the District to establish the legal and factual elements of the violation and remedy it actually charges under the governing procedure; the owner need not concede disputed facts or authority and may use Chapter 119 to seek existing nonexempt District records.
The evidence at a glance. The authorities and protections that restrict the District on this bona fide agricultural land, and the level of law each comes from:
| Authority or protection | Level | Effect on the District (SFWMD) |
|---|
| §373.406(2), F.S. | State statute | Express exemption from ERP permitting for agricultural topography alteration on land classified agricultural under §193.461 — including alteration that may adversely impact wetlands — unless its sole or predominant purpose is to obstruct/divert surface water or adversely impact wetlands. Applies to activities “requiring an environmental resource permit pursuant to this part.” |
| §373.406(6), F.S. | State statute | Exempts activities that have only minimal or insignificant individual or cumulative adverse effects on the District’s water resources. |
| F.A.C. 62-340.300(3), .500, .550 | State rule | Altered sites and long-term hydrology must be evaluated under the specific rule provisions. Reliable hydrologic records or qualifying site-specific data may refute a delineation under Rule 62-340.550 when neither the stated inundation nor saturation thresholds occurs under representative long-term conditions; engineered hydrology is evidence to analyze, not an automatic exclusion. |
| §823.14(6), F.S. — Right to Farm Act | State statute | Limits specified local-government duplication of regulation over qualifying bona fide farm operations; do not treat this subsection as an independent exemption from SFWMD’s direct Part IV authority. |
| §163.3162, F.S. — Agricultural Lands and Practices Act | State statute | Limits specified regulation by a qualifying “governmental entity”; the statute’s definition excludes a water management district. Use it principally against a covered local governmental actor, subject to the statute’s exceptions, including specified wetland/delegation provisions. |
| §403.182(11), F.S. — HB 909 (2022), Ch. 2022-127 | State statute | Gives the DEP Secretary exclusive, non-delegable authority over the specific standards/procedures and contaminant-liability assessment described in §403.182(11) for §193.461 agricultural land being converted to nonagricultural use. The statute expressly does not preempt the local program’s other enforcement authority. |
| Part IV, Ch. 373 — §§373.403, 373.413, 373.416, 373.430 | State statute | Defines and authorizes the District’s Part IV ERP program, which can reach regulated systems/works, stormwater, and dredging/filling in wetlands or other surface waters and can include upland activities within the statutory/rule framework. The District must identify the actual regulated activity and account for applicable exemptions. |
| §373.441, F.S. / Rule 62-344, F.A.C. | State statute/rule | Delegation of ERP authority runs to local governments. The District has direct authority and needs no delegation; the delegation question belongs to Miami-Dade DERM, not the District. |
| FDEP ERP Local Program Delegation record | State agency record | FDEP’s published ERP Local Program Delegation status page lists “Miami-Dade-SSL Delegation Agreement” as adopted (effective 1996) and “Miami-Dade County - ERP” as “In Discussion,” with no effective date. Treat that page as a current-record lead and verify the operative agreements/rules before asserting the scope of any delegation in a particular case. |
| Clean Water Act §404(f), 33 U.S.C. §1344(f) | Federal statute | Contains federal §404 exemptions for specified normal farming, ranching, and silviculture activities, subject to federal statutory/regulatory limits. It governs the federal §404 program, not the District’s separate state ERP exemption analysis. |
| Public Law 101-229 | Federal statute | Part of the federal statutory/project history addressing water delivery and conditional flood-protection measures for the 8.5 SMA. It can support investigation of managed hydrology, but does not by itself prove the cause or legal character of hydrologic conditions on a particular parcel. |
| NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY | Constitutional / procedural | The District’s Investigative Notice asks the owner to “grant District staff access” — it seeks consent. The owner may decline voluntary consent. Require the District to identify its claimed statutory or regulatory authority; where a warrant or court order is required, require it, and preserve every objection to claimed exceptions, validity, applicability, and scope. |
A model response letter to the District
This keeps the assertive substance of a real landowner response — jurisdiction reserved, agricultural protection asserted, access conditioned on lawful authority, a full records request, and a complete reservation of rights — and sharpens each point to the version that is hardest to dismiss. It corrects several missteps that weaken such letters: it treats Public Law 101-229 as factual support for the engineered hydrology rather than as “preemption”; it puts the §373.441 delegation question where it belongs (the county’s role), since the District has direct ERP authority; it leads the agricultural defense with the on-point ERP exemption in §373.406(2); and it states the owner’s NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY position without treating the owner’s assertion of rights as wrongdoing.
[Landowner Name], Successor Trustee
[Trust / Farm Name]
[Property mailing address]
[City, FL ZIP]
[Date]
[Name], Environmental Resource Bureau
South Florida Water Management District
3301 Gun Club Road
West Palm Beach, FL 33406
[Sent by certified mail and email]
Re: Response to Investigative Notice — Enforcement Case No. [___], Folio No. [___]. Jurisdiction reserved; agricultural exemption asserted; NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY; public-records request. Submitted without prejudice and under protest.
Dear [Name]:
This responds to the District’s Investigative Notice dated [date]. Responding to the Notice, and requesting the records below, is not consent to the District’s jurisdiction and is not an admission that any wetland, regulated “works,” or unauthorized filling exists on the property. All rights, defenses, and objections are expressly reserved.
1. The law binds the agency, too — an investigative notice is not proof.
A government notice states a conclusion; it is not evidence of the facts required to support that conclusion. Before any obligation to permit or to restore can arise, the District must establish, with competent evidence and under the governing rule, that an Environmental Resource Permit (ERP) is actually required here — that a jurisdictional wetland or regulated “works” exists at the precise location of the alleged activity. The landowner denies each unproven conclusion in the Notice and requires the District to prove every element on the record. The landowner does not concede jurisdiction, and nothing in any response, meeting, or site contact may be treated as such a concession.
2. Test the bona fide farm facts and the § 373.406(2) agricultural-related ERP exemption.
The property is in bona fide agricultural use. Section 373.406(2), Florida Statutes, provides an agricultural-related exemption from specified Part IV ERP regulation when its elements and limitations are satisfied. Separately, §823.14(6) and §163.3162(3) can limit duplicative local regulation of qualifying farm activities. Section 163.3162(3)(a) includes qualifying activities expressly regulated by USDA, USACE, or EPA, while §163.3162(3)(i) preserves specified county wetlands and delegation-based authority. The landowner requests that the District state whether it evaluated §373.406(2), identify its factual basis for denying that exemption, and identify any ordinance or delegation agreement on which Miami-Dade DERM relies for preserved local authority.
To the extent any “filling” is alleged, the landowner’s factual position is that the material is organic agricultural mulch used in the farm operation for soil health, moisture, or weed control, not material placed for the purpose the agency characterizes as regulated fill. Do not assume the label “mulch” itself creates an exemption. Require the District to identify the material, composition, quantity, placement, legal definition and permit trigger it relies upon, and the evidence supporting any separate characterization as regulated fill, debris/solid waste, or contamination. The landowner does not concede that regulated fill, debris, contamination, or a wetland alteration occurred.
3. Require a Rule 62-340 altered-hydrology analysis — the water regime is government-influenced.
The property lies within the former 8.5 Square Mile Area (Las Palmas), where federal water-delivery and flood-control works can materially affect site hydrology. That fact does not automatically establish upland status. It requires a disciplined baseline analysis. Under Rule 62-340.300(3), the District should identify whether the altered-site provisions apply, what conditions it treats as the legally relevant “normal circumstances,” and which Rule 62-340.300 pathway supports the boundary. Rule 62-340.550 separately allows reliable hydrologic records or qualifying site-specific data to refute a delineation when neither the specified inundation nor saturation thresholds occurs under representative long-term conditions. The landowner therefore requests the project-operation records, stage data, and site-specific evidence necessary to distinguish project-controlled conditions from the conditions on which the District bases its wetland determination. Public Law 101-229 is cited as factual and historical support for the federal water-management setting, not as automatic federal preemption.
4. Produce the basis for the authority claimed.
To the extent the District asserts authority over this property, the landowner requests that it produce the statutory basis relied upon and any delegation or interagency agreements bearing on this matter. (Section 373.441, F.S., and Rule 62-344, F.A.C., govern the delegation of ERP authority to local governments — directly relevant to Miami-Dade DERM’s role in this coordinated action; the District should identify precisely which agency claims which authority, and under what instrument.)
5. NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY — consent is withheld.
NO VOLUNTARY CONSENT TO ENTRY — REQUIRE LAWFUL AUTHORITY. The landowner does not consent to entry onto the property. If the District contends it may enter without voluntary consent, require it first to identify in writing the exact statute or rule, factual predicate, property, purpose, and scope it relies upon. Where the proposed inspection requires an administrative inspection warrant or other compulsory court order, require the District to obtain and present that process before entry. Any entry occurring under such process is compulsory and is not consent, waiver, or a concession of District jurisdiction. The landowner expressly preserves every objection to validity, applicability, and scope and requests advance notice sufficient to obtain a copy of the warrant or order and to document the inspection.
6. Public-records request (Chapter 119, F.S.).
The landowner requests copies of the following public records:
- All delegation or interagency agreements bearing on ERP or wetland jurisdiction over the subject property or over bona fide agricultural land, including any agreements under §373.441, F.S., and Rule 62-344, F.A.C.
- All communications (emails, letters, memoranda, meeting notes) among the District, Miami-Dade County DERM, FDEP, and any federal agency regarding this enforcement case or the subject property.
- All inspection reports, delineations, field-data forms, maps, aerial or ground photographs, GIS data, and field notes relating to Folio No. [___].
- All internal legal memoranda, policies, or procedural documents relied upon to assert ERP jurisdiction over bona fide agricultural operations.
- Records identifying the authority under which Investigative Notices are issued and enforcement actions are conducted in this matter.
Please provide these records in electronic format to [email], or by mail to the address above. If estimated costs will exceed $50, please provide an itemized estimate before proceeding.
7. Reservation of rights.
This response is submitted without prejudice and under protest. It is not an admission of any wetland, regulated “works,” or violation, and it is not a waiver of any right, exemption, defense, or objection. The landowner reserves all rights and remedies available under state and federal law, including the right to seek administrative and judicial review and any other lawful remedy, should the District proceed without first establishing lawful authority and a jurisdictional basis as requested here.
Sincerely,
[Landowner Name], Successor Trustee
[Trust / Farm Name]
[email] · [phone]
This is a model letter for educational and informational use only. It is not legal advice, and it does not create an attorney-client relationship. Verify current law, rules, deadlines, and the specific facts before using or adapting it, and consult a licensed Florida attorney.
Educational and informational use only — not legal advice. Verify current law, procedure, and deadlines.
