The purpose of this rule is to effect agricultural nonpoint source pollutant reduction in Florida through the implementation of Best Management Practices to ensure that agricultural discharges have minimal individual or cumulative adverse impacts to ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Water Policy

RULE NOS.:RULE TITLES:

5M-8.001Purpose

5M-8.002Approved BMPs

5M-8.003Presumption of Compliance

5M-8.004Notice of Intent to Implement

5M-8.005Record Keeping

5M-8.006Previously Submitted Notices of Intent to Implement

5M-8.007Previously Submitted Notices of Intent to Implement

PURPOSE AND EFFECT: The purpose of this rule is to effect agricultural nonpoint source pollutant reduction in Florida through the implementation of Best Management Practices to ensure that agricultural discharges have minimal individual or cumulative adverse impacts to state water resources. Some of the rule titles have been changed per the coding below.

SUMMARY: This rule deletes Rule 5M-8.001 (Purpose) which is superfluous, and substantially revises existing rules to establish a procedure for Florida vegetable and agronomic crop growers to submit a Notice of Intent (NOI) which contains water quality and quantity Best Management Practices (BMPs) applicable to their operation. Submittal of the NOI to the Florida Department of Agriculture and Consumer Services and implementation of identified BMPs that have been verified effective by the Florida Department of Environmental Protection provides a presumption of compliance with state water quality standards and release from the provisions of s. 376.307(5), Florida Statutes, for those pollutants addressed by the practices. This rulemaking also provides that records maintained by the participant confirming the implementation of BMPs are subject to inspection.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the Department relied upon past experiences with developing voluntary Best Management Practices based on generally accepted industry practices. Additionally, no interested party submitted additional information regarding the economic impact.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 403.067(7)(c)2; 570.07(10) and (23) FS.

LAW IMPLEMENTED: 403.067(7)(c)2 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Bill Bartnick, Office of Agricultural Water Policy, Mayo Building, 407 South Calhoun Street (MS E1), Tallahassee, Florida 32399. Telephone: [phone], FAX: [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5M-8.001 Purpose.

The purpose of this rule is to effect pollutant reduction through the implementation of non-regulatory and incentive based programs which may be determined to have minimal individual or cumulative adverse impacts to the water resources of the state.

Rulemaking Authority 403.067(7)(c)2. FS. Law Implemented 403.067(7)(c)2. FS. History–New 2-8-06, Repealed_________.

 

(Substantial rewording of Rule 5M-8.002 follows. See Florida Administrative Code for present text.)

5M-8.002 Documents Incorporated by Reference. Approved BMPs.

The following documents are hereby adopted and incorporated by reference. Copies of the documents may be obtained from the Florida Department of Agriculture and Consumer Services (FDACS), Office of Agricultural Water Policy, Mayo Building, 407 South Calhoun Street, Tallahassee, Florida 32399 or online as indicated.

(1) Water Quality/Quantity Best Management Practices for Florida Vegetable and Agronomic Crops (Edition 2015, FDACS-P-01268) accessed online at http://www.flrules.org/Gateway/reference.

(2) University of Florida Nutrient Management of Vegetable and Agronomic Row Crops Handbook (February 2015, SP500) accessed online at http://www.flrules.org/Gateway/reference.

(3) Dade County Department of Environmental Resources Management document Handbook for the Voluntary Retrofit of Open, Uncased Agricultural Wells (1997) accessed online at http://www.flrules.org/Gateway/reference.

(4) Notice of Intent to Implement Water Quality/Quantity Best Management Practices for Florida Vegetable and Agronomic Crops (2015), FDACS-01351, Rev. 3/15, accessed online at http://www.flrules.org/Gateway/reference.

(5) Notice of Intent to Implement Best Management Practices for Everglades Agricultural Area or C-139 and Western Basins Area, FDACS-01445, Rev. 2/15, accessed online at http://www.flrules.org/Gateway/reference.

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and (23), FS. Law Implemented 403.067(7)(c)2. FS. History–New 2-8-06, Amended______.

 

(Substantial rewording of Rule 5M-8.003 follows. See Florida Administrative Code for present text.)

5M-8.003 Presumption of Compliance.

Pursuant to Section 403.067(7)(c)3., F.S., implementation of best management practices (BMPs), in accordance with this rule chapter, that have been verified by the Florida Department of Environmental Protection as effective in reducing pollutants addressed by the practices, 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; or

(b) If the property is located in the Everglades Agricultural Area or C-139 Western Basins Area, submit the Notice of Intent to Implement as provided in Rule 5M-8.005, F.A.C.;

(2) Implement all applicable BMPs in accordance with the requirements in Rule 5M-8.004, F.A.C., or Rule 5M-8.005, F.A.C.;

(3) Implement all applicable BMPs no later than 18 months after submittal of the NOI; and

(4) Maintain documentation, in accordance with Rule 5M-8.006, F.A.C., to verify the implementation and maintenance of the identified BMPs.

(5) The presumption of compliance applies only to phosphorus and nitrogen for producers within the Everglades Agricultural Area or C-139 and Western Basins Area.

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and (23), FS. Law Implemented 403.067(7)(c)2. FS. History–New 2-8-06, Amended_________.

 

(Substantial rewording of Rule 5M-8.004 follows. See Florida Administrative Code for present text.)

5M-8.004 Notice of Intent to Implement Water Quality/Quantity Best Management Practices for Florida Vegetable and Agronomic Crops. Notice of Intent to Implement

(1) A Notice of Intent (NOI) to Implement Water Quality/Quantity Best Management Practices for Florida Vegetable and Agronomic Crops (2015), FDACS-01351, Rev. 3/15, as incorporated in Rule 5M-8.002, F.A.C.,and the required supporting documentation as described on the NOI form shall be submitted to the Florida Department of Agriculture and Consumer Services, Office of Agricultural Water Policy, Mayo Building, 407 South Calhoun Street, Tallahassee, Florida 32399.

(2) A BMP checklist with a schedule for implementation, as contained in the manual incorporated in Rule 5M-8.002(1), F.A.C., must be submitted with the NOI. The applicant shall select the applicable BMPs by following the instructions in the manual.

(3) Once the NOI is filed, the applicant is eligible to apply for cost-share assistance with BMP implementation.

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and (23), FS. Law Implemented 403.067(7)(c)2. FS. History–New 2-8-06, Amended 5-23-07,________.

 

(Substantial rewording of Rule 5M-8.005 follows. See Florida Administrative Code for present text.)

5M-8.005 Notice of Intent to Implement Best Management Practices for Everglades Agricultural Area or C-139 and Western Basins Area. Record Keeping.

(1) A Notice of Intent (NOI) to Implement BMPs for Everglades Agricultural Area or C-139 and Western Basins Area, FDACS-01445, Rev. 2/15, as incorporated in Rule 5M-8.002, F.A.C.,and supporting documentation  shall be submitted to the Florida Department of Agriculture and Consumer Services, Office of Agricultural Water Policy, Mayo Building, 407 South Calhoun Street, Tallahassee, Florida 32399.

(2) A copy of the 40E-63, F.A.C., permit must be submitted with the NOI.

(3) Once the NOI is filed, the applicant is eligible to apply for cost-share assistance with BMP implementation.

 

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and (23), FS. Law Implemented 403.067(7)(c)2. FS. History–New 2-8-06, Amended 5-23-07,________.

 

5M-8.006 Record Keeping. Previously Submitted Notices of Intent to Implement.

BMP participants must keep records for a period of at least five years after they are generated to document implementation and maintenance of the practices identified in the Notice of Intent to Implement. All documentation is subject to inspection.

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and(23), FS.  Law Implemented 403.067(7)(c)2. FS. History–New.

 

5M-8.007 Previously Submitted Notices of Intent to Implement.

In order to retain a presumption of compliance with state water quality standards:

(1) Producers who are not described in sections (2) or (3) below who submitted a Notice of Intent to Implement Best Management Practices prior to the effective date of this rule must:

(a) Within two years of the effective date of this rule, submit a new NOI and BMP checklist in accordance with Rule 5M-8.004, F.A.C., and

(b) Implement the selected BMPs on the checklist submitted to the Department .

(2) Producers who are not described in section (3) below who submitted a Notice of Intent to Implement Best Management Practices prior to the effective date of this rule and that have a Water Management District-permitted, operational retention/detention stormwater management system that treats the production runoff water must:

(a) Within four years of the effective date of this rule, submit a new NOI and BMP checklist in accordance with Rule 5M-8.004, F.A.C., and

(b) Implement the selected BMPs on the checklist in accordance with Rule 5M-8.004, F.A.C.

(3) Producers described below who, prior to the effective date of this rule, submitted a Notice of Intent to Implement Best Management Practices do not have to re-enroll and the existing NOI continues to provide a presumption of compliance with state water quality standards so long as:

(a) They grow an annual crop that is fertilized with less than 100 lbs N/acre; or

(b) They grow strawberries or cucurbits on plastic mulch with drip irrigation, and apply greater than 75% of the nitrogen fertilizer via fertigation at a rate that does not exceed 150 lbs N/acre per season; or

(c) They have a Resource Management System Level Conservation Plan developed by NRCS that has been updated within the past five years; or

(d) They grow vegetable and/or agronomic crops within the permit boundaries of the Everglades Agricultural Area or C-139 Western Basins Area and have been issued a permit under Chapter 40E-63, F.A.C.

Rulemaking Authority 403.067(7)(c)2. FS., 570.07(10) and (23), FS. Law Implemented 403.067(7)(c)2. FS. History–New____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Richard J. Budell, Director, Office of Agricultural Water Policy

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 14, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 31, 2014