40E-63.461. C-139 Basin Permit Compliance

The District is authorized to seek any enforcement or corrective action available under Florida law for permittees out of compliance with the provisions of this chapter, pursuant to Chapter 373, F.S., and rules adopted thereunder.

(1) If an individual permittee is determined to be out of compliance with permit conditions the following applies:

(a) The District shall begin reviewing “permit compliance” with BMP implementation, documentation, and operation by permittees in the C-139 Basin immediately upon the effective date of this part of Chapter 40E-63, F.A.C.

(b) All permittees who are not in compliance with their permit are subject to notification and enforcement actions by the District.

(c) All permittees who receive notice of non-compliance with their permit from the District must submit to the District, within 10 business days of receipt of the notice, a plan and schedule for achieving permit compliance within 60 days after transmittal of the District notice.

(d) Compliance with the permit includes timely submittal and implementation of any additional water quality improvement activities if required by rule. Delay by permittees in fulfilling the BMP implementation requirements will not extend the timeline for determining the need for additional water quality improvement activities at the sub-basin or permit basin level.

(2) If the C-139 Basin is determined to be out of compliance with the water quality requirements of this part of Chapter 40E-63, F.A.C., pursuant to Rule 40E-63.446, F.A.C., the permittee shall propose water quality improvement activities in accordance with the following:

(a) The permittee shall submit a letter modification application for the District’s consideration, within 120 days of the District’s transmittal of the notice that the C-139 Basin is not in compliance. The submittal shall include the section entitled “Water Quality Improvement Activities” of Form 1045, dated November 2010, incorporated by reference in subsection 40E-63.430(2), F.A.C.

(b) The submittal shall include a proposal for water quality improvement activities along with the estimated phosphorus reductions to be achieved in accordance with subsection 40E-63.461(3), F.A.C., or a verification plan in accordance with subsection 40E-63.461(4), F.A.C. The phosphorus reductions shall be the minimum levels necessary to meet the permit basin’s proportional share of required total phosphorus reductions as determined by the District (Appendices B3.1 and B3.2, incorporated by reference in paragraph 40E-63.446(2)(a), F.A.C.). The proposal shall include a schedule to ensure that full implementation of an approved BMP Plan incorporating any proposed water quality improvement activities is in effect as soon as feasible and no later than April 30 following the District’s transmittal of the notice that the C-139 Basin is not in compliance, unless otherwise approved by the District. An alternate implementation schedule will be approved by the District with justification based on the scope of the proposed activities. A permittee shall be required to implement intermediate water quality improvement activities or BMPs, as applicable, if an alternate implementation schedule is approved.

(3) All proposals for water quality improvement activities shall meet the following criteria for District review and approval:

(a) Include a detailed description of the proposed improvements to the approved BMP Plan in comparison to the current implementation practices. The basis for the proposed BMP improvements shall consider pre-improvement conditions (e.g., current levels of BMP implementation, pre-BMP improvement water quality data) and the parameters affecting BMP performance and total phosphorus load (site-specific conditions, phosphorus speciation, flow). If the proposal includes implementation of additional BMPs not listed in Appendix B1 (incorporated by reference in subsection 40E-63.435(1), F.A.C.), the proposal shall also include the information indicated in subsection 40E-63.437(1), F.A.C. Note that in contrast with BMP Plans, additional improvements to an approved BMP Plan do not need to be proposed for each land use or crop within a permit basin if it is demonstrated that focus on selected land uses, crops, or acreage will be sufficient to achieve the required total phosphorus reduction of the basin wide load.

(b) Indicate the expected range of percent total phosphorus removal resulting from the proposal as follows:

1. The expected or assumed range of percent total phosphorus removal shall equal or exceed the percent required total phosphorus reduction applicable to the permit basin.

2. The expected or assumed total phosphorus removal efficiency shall be based on data from the most current representative technical references including peer reviewed or published BMP research and demonstration projects, with consideration of permit basin specific conditions such as identified when a site-assessment is completed pursuant to subsection 40E-63.437(2), F.A.C.

3. Each proposal shall include a detailed description of the technical basis and copies of documents as applicable. All proposed total phosphorus reductions shall be based on scientific studies, calibrated models, or data collection representative of the C-139 Basin for District approval.

(c) If the permittee is unable to demonstrate that the required total phosphorus reductions can be achieved in accordance with paragraph (b) above, a verification plan shall be required.

(d) If the proposal includes a verification plan, it shall meet the criteria for approval described below. The proposal and monitoring plan shall aim to demonstrate the ability to achieve the total phosphorus reduction levels that would be necessary to meet the overall required total phosphorus reduction levels.

(4) If a permittee elects to or is required to conduct a monitoring program to confirm that required total phosphorus reductions will be achieved, a permittee shall propose a verification plan in addition to the proposal for improvements to an approved BMP Plan or water quality improvement activities. All verification plan proposals shall meet the following criteria for District review and approval:

(a) The description of who will be responsible for project implementation.

(b) The proposed reporting procedures during and at completion of the project.

(c) A Final report at completion that describes how the recommendations for BMP implementation will be applicable to the crops or land uses to meet the required total phosphorus reduction.

(d) The tools that will be used to verify total phosphorus reduction levels such as water quality and quantity monitoring to determine total phosphorus loading pre- and post-BMP improvement and to estimate total phosphorus reduction. Total phosphorus and phosphorus speciation data collected at the District sub-basin monitoring locations may serve as representative monitoring.

(e) The parameters under which total phosphorus reduction levels will be measured and verified so that findings are repeatable and applicable within the C-139 Basin conditions (climatic conditions, soils, geology, etc.).

(f) A schedule not to exceed three calendar years from the date of District approval of the proposal. Once the confirmatory verification is completed and a final report is submitted in accordance with the approved scope, the permittee shall either submit a Letter Modification application in accordance with Rule 40E-63.439 and subsections 40E-63.461(2) and (3), F.A.C., to either:

1. Modify the approved BMP Plan to incorporate changes based on the final report recommendations for the District’s consideration, or

2. Propose other water quality improvement activities consistent with the requirements of this rule.

(5) The District shall repeat the procedures specified in Rule 40E-63.446, F.A.C., above as many times as required to achieve C-139 Basin compliance, and seek corrective action as appropriate against entities within the C-139 Basin, as applicable.

(6) Permittees may elect to demonstrate that water quality improvement activities are impracticable. Any such request for determination of impracticability must be submitted to the District under a permit modification application. For the District to consider the application for approval, the submittal shall:

(a) Specify all of the BMPs and activities that were implemented previously and provide evidence to show that no additional BMPs and activities or refinements for the reduction of phosphorus can be reasonably accomplished at the site or sites of operation.

(b) Propose the expected amount of phosphorus discharge in comparison to the C-139 Basin’s phosphorus load targets and limits, calculated in accordance with Appendices B3.1 and B3.2 (incorporated by reference in paragraph 40E-63.446(2)(a), F.A.C.), for the range of historic rainfall conditions in accordance with Appendix B2 (incorporated by reference in subsection 40E-63.446(1), F.A.C.). No increasing trend in phosphorus from the property, as determined by the District, will be allowed under any scenario. The District will review the proposed performance level in reference to available representative historic data.

(c) Propose a discharge monitoring plan in accordance with Rule 40E-63.462, F.A.C., to verify that the proposed performance level is met. In the event that the farm configuration is not conducive to flow collection under a discharge monitoring program, the District may consider requests for the use of alternate representative locations or monitoring for concentration only. Upon District approval of the monitoring plan, special limiting conditions (such as applicable conditions from Rule 40E-63.464, F.A.C.) will be incorporated in the permit.

(d) Such requests shall apply only to the permit basin or portion thereof (e.g., land use, crop or acreage) which demonstrated further activities are impracticable.

(e) The District shall send a copy of each such request to the Department of Environmental Protection.

(f) Determinations of impracticability will be valid until the next permit renewal cycle. Permittees shall re-apply for a permit in accordance with Rule 40E-63.439, F.A.C. A previously permitted impracticability status shall not be automatically renewed. The District will review each request as a new request. All requests shall be reviewed to verify that there have been no increasing trends in phosphorus discharges in the previous 5 years and that the proposed levels of BMP implementation are in accordance with improved BMP implementation techniques based on the latest technical information, as described in Appendix B3.2 (incorporated by reference in paragraph 40E-63.446(2)(a), F.A.C.).

Rulemaking Authority 373.044, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 11-9-10.