Level of Scrutiny for the Presumption of Compliance
Definition of Rebuttable Presumption of Compliance
Rebuttable Presumption: A particular rule of law that may be inferred from the existence of a
given set of facts and that is conclusive absent contrary evidence. “Rebuttable Presumption,”
Legal Information Institute: Cornell Law School.
Florida Evidence Manual: § 90.301 Presumption Defined
(1) For the purposes of this chapter, a presumption is an assumption of fact which the law
makes from the existence of another fact or group of facts found or otherwise
established.
Fla Rules of Evidence § 90.303. Presumption affecting the burden of producing evidence
defined.—In a civil action or proceeding, unless otherwise provided by statute, a presumption
established primarily to facilitate the determination of the particular action in which the
presumption is applied, rather than to implement public policy, is a presumption affecting the
burden of producing evidence.
Fla Rules of Evidence § 90.302 Classification of rebuttable presumptions.—Every
rebuttable presumption is either:
(1) A presumption affecting the burden of producing evidence and requiring the trier
of fact to assume the existence of the presumed fact, unless credible evidence
sufficient to sustain a finding of the nonexistence of the presumed fact is
introduced, in which event, the existence or nonexistence of the presumed fact
shall be determined from the evidence without regard to the presumption; or
(2) A presumption affecting the burden of proof that imposes upon the party against whom it
operates the burden of proof concerning the nonexistence of the presumed fact.
Based on these definitions, an entity enrolled in BMPs would be provided a presumption of
compliance with water quality standards whereas FDACS, FDEP, or a third party would carry
the burden of producing credible evidence sufficient to sustain a finding of the nonexistence of
the presumed fact. In that instance, the trier of fact would need to determine the existence or
nonexistence of the presumed fact from the evidence without regard to the presumption. If this
credible evidence is sufficient to find the nonexistence of the presumed fact, “the presumption
ceases to provide any weight beyond the weight inherent in the evidence from which the
presumption first arose.” See Vt. R. Evid. 301(a) (2010), Stephen Michael Sheppard, The
Wolters Kluwer Bouvier Law Dictionary Desk Edition, “Rebuttable Presumption” (2012).
Relevant Law
Pursuant to Florida Statute § 403.067(7)(c)3, a landowner or producer who implements best
management practices enjoys a presumption of compliance with state water quality standards
and release from liability outlined in Florida Statute § 376.307(5). Florida Statute §
403.067(7)(c)2 explains FDACS’ obligations and authority to make rules for BMP
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implementation. This provision only requires that FDACS include a notice of intent to implement
and a “system to assure the implementation of the practices.”
Fla. Admin. Code Rules
FDACS is given the authority to make rules regarding BMP implementation. Fla. Stat. §
403.067(7)(c)2. Agricultural operations who wish to, or are required to, enroll in Best
Management Practices with the Florida Department of Agriculture and Consumer Services
(FDACS) must submit a Notice of Intent (NOI) and a BMP Checklist to FDACS which identifies
which best management practices that enrollee will implement. This submission enrolls the
landowner or manager in the BMP program. While enrolled in the BMP program, a
landowner or manager enjoys a presumption of compliance with state water quality standards
and release from liability under Florida Statute §376.307(5). FLA. STAT. § 403.067(7)(c)3.
5M-8.003 Presumption of Compliance.
Pursuant to Section 403.067(7)(c)3., F.S., implementation of best management practices
(BMPs) . . . provides a presumption of compliance with state water quality standards and
release from the provisions of Section 376.307(5), F.S., for those pollutants. In order to qualify
for a presumption of compliance and release from Section 376.307(5), F.S., the applicant must:
(1) Submit the Notice of Intent to Implement:
(a) As provided in Rule 5M-8.004, F.A.C., that identifies the applicable BMPs…
Implement all applicable BMPs in accordance with the requirements in Rules 5M8.004 or 5M-8.005, F.A.C.;
(2) Implement all applicable BMPs no later than 18 months after submittal of the NOI; and,
(3) Maintain documentation, in accordance with Rule 5M-8.006, F.A.C., to verify the
implementation and maintenance of the identified BMPs. (See 5M-8.006 F.A.C. outlining
the requirement for BMP participants to keep records for a period of at least five years . .
. to document implementation and maintenance of the practices identified in the manual
. . . and in the Notice of Intent to Implement)
When does an enrollee’s presumption of compliance begin?
Section 403.067(7)(c)3., F.S explains the presumption of compliance with state water quality
standards does not begin until the enrollee submits a NOI and BMP checklist to FDACS and
implements all applicable BMPs no later than 18 months after submitting their NOI and
maintenance of documentation outlined in the BMP manuals for each commodity.
FDACS provides instructions on the BMP enrollment process on its website at
https://www.fdacs.gov/Agriculture-Industry/Water/Agricultural-Best-Management-Practices:
1. Schedule a meeting with an FDACS representative, who will provide a free
FDACS BMP manual and other BMP-related information.
2. Participate with the FDACS representative in a free assessment of your
operation to determine the BMPs that apply to your operation.
3. Fill out a BMP checklist and sign the Notice of Intent to implement the BMPs.
4. Keep a copy of the checklist and signed Notice of Intent in your records.
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5. Implement and maintain the applicable BMPs and keep required records to
maintain a presumption of compliance with state water quality standards.
F.S. §403.067 states that if all of these requirements are fulfilled, FDEP is then precluded
from recovering costs or damages for contamination related to the target pollutants.
When does an enrollee lose their presumption of compliance?
Based on the above law, when a landowner or manager succeeds in implementing all
applicable BMPs and maintaining the required records the landowner/producer receives a
presumption of compliance. Further, based on the relevant presumption of compliance evidence
rules and FDACS material, an enrollee loses its presumption of compliance the moment that
operation fails to implement, or stops implementing, any applicable best management practices
checked on his/her BMP checklist. FDACS’ Status of BMP Implementation Report for 2019
explains:
“Producers implementing BMPs receive a presumption of compliance with state water
quality standards for the pollutants addressed by the BMPs. s..403.067(7)(c)3., F.S.
Additionally, producers who enroll in the BMP program become eligible for technical
assistance and cost-share funding for BMP implementation.”
Fla. Dept. Agric. & Cons. Serv’s, Office of Agricultural Water Policy, Status of Implementation of
Agricultural Non-point Source Best Management Practice (2019).
This language suggests that only those sites that continually maintain BMPs receive a
presumption of compliance. Given that FDACS staff is now required to perform on-site visits to
all BMP-enrolled operations every two years and is required to collect and provide to FDEP
fertilization and nutrient records from each enrolled producer (SB712 (2020)), BMP enrolledsites’ presumptions of compliance will theoretically be subject to added scrutiny and more sites
will potentially lose their presumptions. The new SB 712 rule will provide more opportunity for
the entities upon which the burden of presumption acts (FDACS, FDEP and other third parties)
to present sufficient evidence to demonstrate the non-existence of the presumed fact or rebut
the presumption of compliance with water quality standards. Senate Bill 712, enrolled in 2020
by the Florida Legislature, prescribes in its “Enforcement and verification of basin management
action plans and management strategies” section:
At least every 2 years, the Department of Agriculture and Consumer Services shall
perform onsite inspections of each agricultural producer that enrolls in a best
management practice to ensure that such practice is being properly implemented.
Such verification must include a collection and review of the best management
practice documentation from the previous 2 years required by rules adopted pursuant
to subparagraph (c)2., including, but not limited to, nitrogen and phosphorus fertilizer
application records, which must be collected and retained pursuant to subparagraphs
(c)3., 4., and 6.
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Moreover, the collection of these records and acknowledgment by staff of ongoing maintenance
is the only way for an enrolled site to maintain its presumption of compliance. If a site fails to
maintain the required BMPs and recordkeeping, it theoretically should automatically lose its
presumption of compliance. However, the presumption may endure until an auditing party
challenges the presumption with evidence of the non-existent fact (aka non-compliance with
BMP implementation).
Does FDACS have the authority to revoke an enrollee’s presumption of compliance?
If a landowner/producer chooses not to enroll in the FDACS BMP program and if the producer
is found to be violating water quality standards by failing to implement applicable BMPs, FDACS
is required to refer that producer to FDEP for water quality monitoring and/or other enforcement
action. The FDEP rule that provides guidance on water quality monitoring is Chapter 62-307,
Florida Administrative Code. Sections 373.4595 and 403.067, Fla. Stat.
Based on the language of Florida Statute § 403.067 and the individual commodity rules, a
presumption of compliance only prevents FDEP from recovering costs or damages associated
with water contamination from any certified BMP enrollee. However, enrollees that do not
implement and maintain the BMPs are violating Florida law and are subject
suspension/revocation of the presumption of compliance. Based on the information that FDACS
collects on its site visits or through other verification methods, FDACS has the authority to
revoke a entity’s presumption of compliance under Section 403.067(7)(c)3., F.S if the records
and any relevant data indicates the enrollee is not following the BMP implementation
requirements.
CONCLUSION
A site will otherwise enjoy its presumption of compliance so long as it: 1) implements all
applicable BMPs according to its NOI, and meets recordkeeping requirements, and 2) FDACS
can verify that the producer has fulfilled its obligations. Once FDACS verifies the producer has
maintained all applicable BMPs and kept appropriate records, the site will enjoy an ongoing
presumption of compliance until the next FDACS site visit. Furthermore, if FDACS staff records
that the site has not implemented all applicable BMPs and has not maintained records, the site
likely loses its presumption of compliance until it begins abiding by these guidelines. The
question remains how FDACS will store these verification records, what action FDACS takes
after finding noncompliance, and whether these verification records will be publicly available.
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