5B-57.012. Casuarina Cunninghamiana Windbreaks

Purpose – The Department is authorized pursuant to Section 581.091, F.S., to develop and administer a pilot program to allow for, under special permits, the propagation of male Casuarina cunninghamiana trees, and the planting of those trees as windbreaks for commercial citrus groves in Indian River, Martin and St. Lucie Counties. The program is a five-year pilot that may be extended and expanded if so approved at the end of five years by the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection, the Department and a representative of the citrus industry, as provided in Section 581.091(5)(b), F.S.; or permanently suspended if hybrids are found that the Department determines, pursuant to Section 581.091(5)(k), F.S., have a high potential to be invasive.

(1) Definitions. For the purpose of this rule chapter, the definitions in Section 581.011, F.S., and the following shall apply:

(a) Casuarina cunninghamiana means a perennial tree in the family Casuarinaceae commonly called the “river she-oak.”

(b) Commercial citrus grove means a contiguous planting of 100 or more citrus trees where citrus fruit is produced for sale.

(c) Department means the Florida Department of Agriculture and Consumer Services.

(d) Registered source tree means a Casuarina cunninghamiana male tree of Florida origin that the Department has verified as sexually mature and horticulturally true to type and for which the Department has assigned a source tree registration number.

(2) Nursery Propagation Permit Application Requirements. The following requirements must be met in order obtain a permit to propagate Casuarina cunninghamiana for use as a windbreak around commercial citrus groves:

(a) Casuarina cunninghamiana may only be propagated by nurseries registered with the Department pursuant to Section 581.031(21), F.S.

(b) The nursery must submit an Application and Compliance Agreement to Propagate Casuarina cunninghamiana, FDACS 08446, Rev. 01/13, to obtain a special permit to propagate Casuarina cunninghamiana from the Department. The form titled Application and Compliance Agreement to Propagate Casuarina cunninghamiana, FDACS-08446, Rev. 01/13) is hereby adopted and incorporated herein by reference and may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.asp?No=Ref-02827.

(c) The application must be accompanied by a fee of $200.

(d) The Compliance Agreement included in the application shall include a statement that the owner or operator acknowledges that this is a pilot program, and that the Department may order the destruction at owner’s or operator’s expense of all Casuarina cunninghamiana trees propagated pursuant to the permit.

(e) Within 30 days of receipt of a complete permit application and signed compliance agreement that meet the requirements of this rule, the Department shall issue the applicant a Special Permit for Propagation of Casuarina cunninghamiana (FDACS 08455, Rev. 01/13). The form titled Special Permit For Propagation Of Casuarina Cunninghamiana (FDACS-08455, Rev. 01/13) is hereby adopted and incorporated herein by reference and a sample of the form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.asp?No=Ref-02829.

(f) If the application is not complete, the Department shall notify the applicant in writing of the reasons that the permit will not be issued and any corrective measures that the applicant must take to obtain approval.

(g) The special permit expires twelve months after the date of issuance.

(h) Application for renewal of the special permit for propagation must be received by the Department at least 60 days prior to its expiration and be accompanied by the application fee of $200.

(3) Propagation Permit Requirements.

(a) All Casuarina cunninghamiana plants must be vegetatively propagated from registered source trees.

(b) An annual fee of $50 must be paid for each registered source tree and each registered source tree must be labeled with a permanent tag that contains the source tree registration number assigned by the Department.

(c) Each plant propagated from the registered source tree must be labeled with a permanent tag that contains the source tree registration number.

(d) Propagations from each registered source tree shall be maintained in nursery rows or on greenhouse benches so that each group can be identified as originating from an individual registered source tree.

(e) Source tree registration numbers of the parent plants must be documented on each invoice provided to the buyer.

(f) Nurseries may only sell Casuarina cunninghamiana to a person with a Special Permit for Casuarina cunninghamiana Windbreaks. The nursery must include the buyers permit number on each invoice.

(g) Copies of Casuarina cunninghamiana invoices must be maintained for 5 years and be made available to the Department upon request.

(h) Upon expiration of the Special Permit to Propagate Casuarina cunninghamiana issued by the Department, all remaining propagations must be destroyed, or sold or transferred to a nursery that has a current Special Permit to Propagate Casuarina cunninghamiana.

(i) The destruction or movement of any Casuarina cunninghamiana plants must be done under the direct supervision of the Department.

(4) Citrus Grove Windbreak Permit Application Requirements. The following requirements must be met in order obtain a permit to plant a Casuarina cunninghamiana Windbreak around commercial citrus groves:

(a) Casuarina cunninghamiana windbreaks may only be planted around a commercial citrus grove as defined in paragraph 5B-57.012(1)(b), F.A.C., located in areas of Indian River, Martin, or St. Lucie Counties in which the Department has determined that citrus canker is widespread.

(b) The property owner or operator must submit an Application and Compliance Agreement for Casuarina cunninghamiana Windbreaks. The form titled Application and Compliance Agreement For Casuarina cunninghamiana Windbreaks FDACS-08445, Rev. 01/13) is hereby adopted and incorporated herein by reference and may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.asp?No=Ref-02826.

(c) A separate permit must be obtained for each noncontiguous commercial citrus grove where the applicant intends to plant the windbreak.

(d) Each application must include the following:

1. The name of the applicant and the applicant’s address or the address of the applicant’s principal place of business and the location and multiblock numbers of each commercial citrus grove for which a permit is sought. If the applicant is a corporation, partnership, or other business entity, the applicant must also provide in the application the name and address of each officer, partner, or managing agent.

2. An application fee in the amount of $200.

3. A baseline survey of all lands within 500 feet of the proposed windbreak to detect any Casuarina species. If any Casuarina species is detected, a map showing the location and identification of each Casuarina species must be provided. Identifications must be verified by the Department prior to issuance of a permit.

(e) An estimate of the cost of removing and destroying the proposed Casuarina cunninghamiana windbreak and the basis for calculating the estimate.

(f) A signed compliance agreement stating that the property owner or operator will abide by all permit conditions. The compliance agreement in the application shall include a statement that the owner or operator acknowledges that this is a pilot program, and that the Department may order the destruction at owner’s or operator’s expense of all Casuarina cunninghamiana trees planted pursuant to the permit.

(g) Within 30 days of receipt of a complete application and signed compliance agreement that meets the requirements of this rule, the Department shall issue the applicant a Special Permit For Casuarina cunninghamiana Windbreak FDACS 08454, Rev. 01/13) or notify the applicant in writing of the reasons that the permit will not be issued and any corrective measures that applicant must take to obtain approval of the permit. The form titled Special Permit For Casuarina cunninghamiana Windbreaks FDACS-08454, Rev. 01/13) is hereby adopted and incorporated herein by reference and a sample of the form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.asp?No=ref-02828.

(h) The Special Permit for Casuarina cunninghamiana Windbreaks shall be valid for 5 years from the date of issuance and is transferable to subsequent owners or operators upon approval by the Department.

(i) Application for renewal of the special permit for a Casuarina cunninghamiana windbreak must be received by the Department at least 60 days prior to its expiration and be accompanied by the application fee of $200.

(5) Citrus Grove Windbreak Permit Conditions. The special permit shall require the property owner or operator to:

(a) Maintain the commercial citrus grove in such a manner to facilitate inspections and to provide unrestricted access to the site for purposes of inspecting the Casuarina cunninghamiana windbreaks;

(b) Notify the Department within 30 days following the initial planting and any subsequent planting of Casuarina cunninghamiana;

(c) Be responsible for the removal of Casuarina cunninghamiana if invasive populations or other adverse environmental factors are determined to be present by the Department as a result of the use of Casuarina cunninghamiana windbreaks;

(d) Maintain all records of the invoices documenting the purchase of the Casuarina cunninghamiana, including the source tree registration numbers as stated in paragraph 5B-57.012(1)(d), F.A.C., and make those records available to the Department during normal business hours for their review.

(e) Notify the Department within 30 business days of any change of address or change in the principal place of business.

(f) Notify the Department of the property owner’s intent to sell or otherwise transfer the ownership of the property at least 30 days prior to the transfer of ownership. The permit holder shall provide the new owner with a copy of the Special Permit and of all invoices and certification documents prior to closing.

(g) The permit holder shall remain responsible for all aspects of the permit until the Department has issued a new permit to the new owner.

(h) The application must be accompanied by a fee of $200 for each non-contiguous citrus grove.

(i) This special permit expires 5 years after issuance.

(6) Additional Permit Requirements For Maintenance and Mitigation.

(a) If the property owner or operator detects any Casuarina seedlings within 500 feet of the planted windbreak, the property owner or operator shall notify the Department immediately. Once notified, the Department shall follow the procedures in subsection 5B-57.012(7), F.A.C.

(b) The property owner or operator shall inspect the windbreak at least one time per month for any signs of female flowers or cones and shall notify the Department immediately if any are detected. Records of each inspection shall be maintained by the property owner or operator and be available for inspection by the Department.

(7) Destruction of Casuarina cunninghamiana Windbreaks. Casuarina cunninghamiana windbreaks shall be destroyed under any of the following circumstances and conditions:

(a) By the property owner within 6 months after:

1. The property owner takes permanent action to no longer use the site for commercial citrus production; or

2. The site has not been used for commercial citrus production for five years; or

3. The Department determines the Casuarina cunninghamiana on the site has become invasive based on its own determination or on the recommendation of the Noxious Weed and Invasive Plant Review Committee and the Department of Environmental Protection and in consultation with a representative of the citrus industry who has a Casuarina cunninghamiana windbreak.

4. If the owner or operator neglects or refuses to comply, the Department shall destroy the plants, assess the expense against the owner and if payment is not received, record a lien against the property.

(b) Within 60 days, if the Department determines that female flowers or cones have been produced on any Casuarina cunninghamiana plant within a windbreak.

(c) By immediate final order if the Department determines that:

1. The permit holder is no longer maintaining the Casuarina cunninghamiana subject to the provisions of the special permit and has not removed and destroyed the trees; or

2. The continued use of Casuarina cunninghamiana as windbreaks presents an imminent danger to public health, safety, or welfare; or

3. The permit holder has violated the conditions of the special permit;

(d) In cases governed by subparagraphs 5B-57.012(7)(c)1.-3., F.A.C., above, the Department shall issue an immediate final order, which shall be immediately appealable or enjoinable as provided by Chapter 120, F.S., directing the permit holder to immediately remove and destroy the Casuarina cunninghamiana authorized to be planted under the special permit.

(e) The permit holder may make a written request to the Department for a 60 day extension of time to remove and destroy the Casuarina cunninghamiana as ordered in the immediate final order. The request must demonstrate specific facts showing why the Casuarina cunninghamiana could not reasonably be removed and destroyed in the applicable timeframe.

(f) Upon a showing that the permit holder has demonstrated the need for additional time to destroy the trees, the Department shall specify a later date by which the trees subject to the special permit must be destroyed.

(g) If upon issuance by the Department of an immediate final order to the permit holder, the permit holder fails to remove and destroy the Casuarina cunninghamiana subject to the special permit within 60 days after issuance of the order, such other extended time as granted by the Department, or such shorter period as is designated in the order as public health, safety, or welfare requires, the Department shall remove and destroy the Casuarina cunninghamiana that are the subject of the special permit.

(h) The reasonable costs and expenses incurred by the Department for removing and destroying the plants shall be paid out of the Citrus Inspection Trust Fund and shall be reimbursed by the party to which the immediate final order is issued.

(i) If the party to which the immediate final order has been issued fails to reimburse the state within 60 days, the Department shall record a lien on the property. The lien shall be enforced by the Department.

(8) Evaluation of Seedlings.

(a) Casuarina seedlings discovered within 500 feet of a Casuarina cunninghamiana windbreak shall be identified by the Department to species level, removed and evaluated by the Department to determine whether hybridization has occurred.

(b) If the Department determines that hybridization has occurred, the Department shall initiate action to determine the invasiveness of the hybrids.

(c) The Department shall report its findings to a reviewing group consisting of the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection and the citrus industry.

(d) If after consulting with the reviewing group the Department determines the hybrids have a high potential to become invasive, this program shall be permanently suspended, all propagation and windbreak special permits shall be rescinded, and Casuarina cunninghamiana planted pursuant to special permits shall be destroyed.

(9) Department Monitoring and Response. The Department shall:

(a) Conduct inspections of the windbreak within 30 days of the initial planting and any subsequent plantings, and

(b) Conduct inspections of the windbreak and all areas 500 feet from the windbreak at least annually thereafter.

(c) Conduct any other inspections needed to determine whether the Casuarina cunninghamiana has spread beyond the permitted location.

(10) Reevaluation, Extension and Expansion of Pilot Program.

(a) The program shall be evaluated annually by the Department to determine any adverse environmental impacts of the pilot program.

(b) In 2013, the Department shall conduct a comprehensive review and evaluation of the pilot program. The Department shall review and evaluate any adverse environmental impacts of the pilot program and determine the potential for future adverse environmental impacts from the use of Casuarina cunninghamiana as windbreaks around commercial citrus groves, and put its findings in a report.

(c) After the Department has completed its review, the pilot program and report shall be evaluated by a reviewing group consisting of the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection and a representative of the citrus industry who has a Casuarina cunninghamiana windbreak.

(d) If the reviewing group determines that there is a low potential for adverse environmental impacts from the program, the Department may extend and expand the use of the windbreaks to other areas of the state. Any such extension or expansion shall be by Department rule.

(e) If the reviewing group determines that additional time is needed to determine the impacts of Casuarina cunninghamiana windbreaks, the Department shall allow the program to remain in place but shall not expand the areas to be planted until such time as the evaluation is complete and the Department, in consultation with the reviewing group, determines that there is a low potential for adverse environmental impact.

Rulemaking Authority 570.07(23), 581.031(1), (3), (4), (5), (8), 581.091 FS. Law Implemented 570.07(2), (13), 570.32(5), (6), 581.031(1), (17), 581.091 FS. History–New 7-16-09, Amended 7-29-13.