Adopts definitions; creates a system for verification of implementation of best management practices for agriculture; identifies means of verification of implementation.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Water Policy

RULE NOS.:RULE TITLES:

5M-1.001Definitions

5M-1.008Implementation Verification

5M-1.009Best Management Practices Implementation Assistance

PURPOSE AND EFFECT: Adopts definitions; creates a system for verification of implementation of best management practices for agriculture; identifies means of verification of implementation.

SUMMARY: This rule adopts a system for verification of implementation of best management practices for agriculture and for addressing producers who are determined to not be implementing best management practices.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will 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 been prepared by the Agency.

The proposed rule includes provision for producers enrolled in the Best Management Practices (BMP) program to perform an annual self-verification of implementation of BMPs. The system being created for this self-verification will allow it to be completed via a web portal. The process and the form have been designed to be completed by the average producer in less than 30 minutes when done the first time; subsequent self-verifications should take less time. The self-verification is the only requirement of the proposed rule that exceeds current requirements of producers. Given the estimated time required, the number of producers subject to the rule, and the estimated cost to the producers, the first year cost is estimated to be $224,115. Because the self-verification is expected to take less time to complete in subsequent years, the cost over the first 5 years will be approximately $896,580, for an average of $179,316 per year.

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:

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)(d)2.c., 570.07(10), 570.07(23), FS.

LAW IMPLEMENTED: 403.067(7)(d)2.c., 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: Stanley W. Posey, Deputy Director, Office of Agricultural Water Policy

[phone] / [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5M-1.001 - Definitions

(1) “Applicable Best Management Practices” or “Applicable BMPs” means best management practices that have been adopted by Department rule and have been identified for implementation in an Enrolled Producer’s or Landowner’s current Notice of Intent.

(2) “Basin Management Action Plan” or “BMAP” means a plan adopted by the Florida Department of Environmental Protection pursuant to Section 403.067(7)(a), F.S.

(3) “DEP” means the Florida Department of Environmental Protection.

(4) “Department” means the Florida Department of Agriculture and Consumer Services (FDACS).

(5) “Enrolled” means the status of a Producer or Landowner who has completed a Notice of Intent for  

implementation of best management practices on specified parcels.

(6) “Landowner” means the owner of real property of record in the county where a parcel of land is situated. Landowners may also be Producers, as defined herein.

(7) “Notice of Intent” or “NOI” means a form provided by the Department to be submitted by an agricultural Producer or Landowner to enroll in the Department’s program of best management practices.

(8) “Producer” means any person or other legal entity engaged in agriculture as defined in Section 570.02(1), F.S.

Rulemaking Authority 403.067(7)(c)2., 403.067(7)(d)2.c., 570.07(10), 570.07(23), F.S. Law Implemented 403.067(7)(d)2.c., F.S. History‒New.

 

5M-1.008 - Implementation Verification

(1)  The Department will record implementation status assessments of Applicable Best Management Practices (BMPs) by Enrolled Producers or Landowners using data from site visits, periodic producer self-verifications, and staff-assisted verifications, supplemented by information from other sources including county property appraisers, DEP, and water management districts. The Department will notify the Landowner when an Enrolled Producer’s site visit, self-verification, or staff-assisted verification is completed for the specified parcels if the Producer is not the Landowner.

(2) Section 403.067(7)(c)5., F.S., provides that agricultural records, defined therein, are confidential and exempt from public records disclosure.

(3) For the Producers or Landowners described below in (a), (b), and (c), verification of implementation of Best Management Practices will be confirmed by:

(a) Compliance with the following permits, as determined by the issuing agency:

1. Permits or authorizations issued by DEP under Rule Chapter 62-670, F.A.C.; or

2. Permits or authorizations issued by the South Florida Water Management District under Rule Chapter 40E-63, F.A.C.

(b) Compliance with the terms of conservation easements, leases, or other binding agreements with a state agency or water management district that require implementation of the Department’s BMPs and include annual on-site verification by the state agency or water management district that BMPs are being implemented.

(c) Proof of compliance certifications of Department-adopted BMPs that are issued by Department qualified non-governmental individuals or entities as provided in Subsection (4).

(d) A Producer’s or Landowner’s proof of compliance with any of the permits, agreements, or certifications presented by the issuing agency, as provided in this Subsection, shall be made available to the Department upon request.

(4) Entities seeking to issue compliance certifications for use in accordance with (3)(c) must request a

qualification review by the Department’s Office of Agricultural Water Policy.  Applicants will be required to

demonstrate the following qualification requirements:

(a) Certification standards that incorporate implementation of the Department’s BMPs;

(b) A process to license or authorize inspectors or auditors who shall not be employed by or affiliated with the standard-setting entity;

(c) A process for revocation of licenses or authorizations for inspectors or auditors;

(d) Procedures or protocols for selection of inspectors or auditors who shall not be employed by or affiliated with the Producers or Landowners holding or seeking certification for their operations;

(e) An annual certification review and renewal process that includes a site inspection by the licensed orauthorized inspector or auditor; and

(f) A compliance certification revocation process if the Producer or Landowner is found to be out of compliance with the certification standards.

(5) Implementation verification of Best Management Practices for Silviculture shall be provided in accordance with Chapter 5I-6, F.A.C.

Rulemaking Authority 403.067(7)(c)2., 403.067(7)(d)2.c., 570.07(10), 570.07(23), F.S. Law Implemented 403.067(7)(d)2.c., F.S. History‒New.

 

5M-1.009 - Best Management Practices Implementation Assistance

(1) The Department will provide implementation assistance to Enrolled Producers as follows:

(a) If the implementation status assessment described in Rule 5M-1.008(1), F.A.C., indicates that an Enrolled Producer has not achieved full implementation of Applicable Best Management Practices (BMPs), the Department will work in cooperation with the Producer to identify corrective measures to be taken to achieve full implementation of Applicable BMPs.  The identification of corrective measures will include setting of expectations for the time required to complete them. If the Producer is not the Landowner, the Landowner will be notified that corrective measures have been identified for the Producer’s implementation.

(b) If the Producer does not implement the identified corrective measures, the Department will work in cooperation with the Producer and Landowner, if the Producer is not the Landowner, to identify remedial measures to be taken by the Producer and, if necessary, the Landowner to achieve full implementation of Applicable BMPs.The identification of remedial measures will include setting of expectations for the time required to complete them. A Producer or Landowner that fails to implement the identified remedial measures will be subject to (2).

(c) A Producer or Landowner that does not cooperate with the Department to identify corrective or remedial measures will be subject to (2).

(2) The Department will notify DEP of any Enrolled Producer or Landowner that refuses or fails to implement Applicable BMPs.

(3) Producers and Landowners in a BMAP area are required by Section 403.067, F.S., to implement agricultural BMPs or other management strategies. The Department will provide Producers and Landowners in a BMAP area the opportunity to enroll and implement BMPs and will notify DEP of any Producers and Landowners that do not enroll in accordance with Department rules.

Rulemaking Authority 403.067(7)(c)2., 403.067(7)(d)2.c., 570.07(10), 570.07(23), F.S. Law Implemented 403.067(7)(d)2.c., F.S. History‒New.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Steven Dwinell, 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: July 12, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 8, 2016