Purpose and Policy, Scope of Program, Definitions, Incorporation of Forms, Instructions and References, Delegation, No Notice General Permits, BMP Plan Pre-approvals, Permit Applications, BMP Plans, Alternative BMP Plans, Early Implementation of ...
WATER MANAGEMENT DISTRICTS
South Florida Water Management DistrictRule No.: RULE TITLE
40E-63.400: Purpose and Policy
40E-63.401: Scope of Program
40E-63.402: Definitions
40E-63.404: Incorporation of Forms, Instructions and References
40E-63.406: Delegation
40E-63.415: No Notice General Permits
40E-63.420: BMP Plan Pre-approvals
40E-63.430: Permit Applications
40E-63.435: BMP Plans
40E-63.437: Alternative BMP Plans
40E-63.438: Early Implementation of Water Quality Improvement Activities
40E-63.439: Permit Modifications, Transfers and Renewals
40E-63.441: Permit Duration
40E-63.443: Permit Application Processing Fees
40E-63.444: Limiting Conditions for General Permits in the C-139 Basin
40E-63.446: C-139 Basin Compliance
40E-63.461: C-139 Basin Permit Compliance
40E-63.462: Permit Basin Discharge Monitoring Program
40E-63.464: Limiting Conditions for the Permit Basin Discharge Monitoring ProgramNOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 36 No. 26, July 2, 2010 issue of the Florida Administrative Weekly. Changes made to the materials incorporated by reference throughout this part of Chapter 40E-63, F.A.C., are available online at www.sfwmd.gov or by contacting Carmela Bedregal, Section Leader, Everglades Regulation Division, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, (800)432-2045, ext. 2737 or (561)682-2737, email: cbedrega@sfwmd.gov.
40E-63.400 Purpose and Policy.
(1) through (2) No change.
(3) The objectives of this part of Chapter 40E-63, F.A.C., are as follows:
(a) No change.
(b) To provide a water quality monitoring program, performance measures and a compliance methodology to evaluate the effectiveness of the BMP program in reducing phosphorus phosporus discharges;
(c) To establish a BMP compliance verification and enforcement program to ensure that phosphorus discharges from the basin do not exceed historic levels, based upon water quality monitoring data from the period October 1, 1978 to September 30, 1988, in accordance with Chapter 40E-63, F.A.C., Appendix B2, “C-139 Basin Performance Measure Compliance Methodology”, dated _______; and
(d) No change.
(4) No change.
(5) The BMP implementation requirements, performance measures and compliance methodology established in this part of Chapter 40E-63, F.A.C., pertain to phosphorus only. Should regulation of other nutrients or constituents be required to meet statutory requirements, including water quality standards, the District shall initiate rulemaking pursuant to Chapter 120, F.S.
(6)(5) Unless otherwise provided by this part of Chapter 40E-63, F.A.C., nothing herein shall be construed to modify any existing state water quality standards, nor to otherwise restrict the authority granted to the District pursuant to Chapter 373, F.S.
(7)(6) Section 403.067(7)(c)2., F.S., authorizes the Florida Department of Agriculture and Consumer Services (FDACS) to develop and adopt BMPs by rule and assist with their implementation.
(8)(7) The District’s sub-basin monitoring and maintenance program for data collection, performance measure assessment, and determination of when water quality improvement activities are required, as described in paragraphs 40E-63.446(2), (3)(a), (3)(e), and (4), F.A.C., and Appendices B3.1 and B3.2 (which are incorporated by reference in paragraph subsection 40E-63.446(2)(a), 40E-62.404(7) and (8), F.A.C.), and are an inseparable component of this part of Chapter 40E-63, F.A.C., for ensuring that landowners are responsible for their proportional share of phosphorus load discharged from the C-139 Basin. If these provisions are declared invalid, the District shall initiate rulemaking pursuant to Chapter 120, F.S., to revise this part of Chapter 40E-63, F.A.C., to ensure that the proportional share objectives of the EFA, Section 373.4592(4)(f)f., F.S., are met.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended ________.
40E-63.401 Scope of Program.
(1) through (4) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended ________.
(Substantial rewording of Rule 40E-63.402 follows. See Florida Administrative Code for present text.)
40E-63.402 Definitions.
(1) “Best Management Practice (BMP)” means a practice or combination of practices determined by the District, in cooperation with the Department of Environmental Protection (Department) and FDACS, based on research, field testing, and expert review, to be the most effective and practicable on-location means, including economical and technological considerations, of improving water quality in agricultural and urban discharges to a level that balances water quality improvements, and agricultural productivity, as applicable.
(2) No change.
(3) “BMP equivalent point” means the numerical value assigned to a BMP as provided in Appendix B1 (incorporated by reference in subsection 40E-63.435(1), 40E-63.404(3), F.A.C.). The points are used for regulatory permit review to ensure a comparable level of effort in BMP implementation among permittees. The points are an indication of relative BMP effectiveness. The points were are based on expert review, technical publications, best professional judgment, and cooperative workshops with stakeholders.
(4) No change.
(5) “Demonstration project” means an investigation based on technical information to evaluate the feasibility and effectiveness of best management practices techniques offering phosphorus reduction and financial benefits. Criteria to be considered by the District for review are described in subsection 40E-63.437(3) and Rule 40E-63.438 40E-63-438, F.A.C.
(6) through (12) No change.
(13) “Verification plan” means a water quality monitoring program to verify the expected effectiveness of a BMP Plan or proposed water quality improvement activities in accordance with subsection 40E-63.461(4) 40E-63.460(4), F.A.C.
(14) through (15) No change.
(16) “Water quality improvement activities” means a combination of modifications to a BMP Plan proposed by a permittee to meet the required total phosphorus reduction requirements of Appendix B3.2.(incorporated by reference in paragraph subsection 40E-63.446(2)(a), 40E-63.404(8), F.A.C.). Improvement activities may include revising implementation methods to increase the effectiveness of existing BMPs or implementing additional BMPs.
(17) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended ________.
40E-63.404 Incorporation of Forms, Instructions and References.
The documents listed in subsections (1) through (9)(8) are hereby incorporated throughout this part of Chapter 40E-63, F.A.C., by reference, and are available on the District’s website (www.sfwmd.gov), or from the District’s Clerk’s Office at 3301 Gun Club Road, West Palm Beach, FL 33406, (561)686-8800, upon request.
(1) through (9) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592, FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended________.
40E-63.406 Delegation.
(1) The Governing Board delegates to and appoints the Executive Director and his or her designated agents to review and take final action on BMP Plan pre-approvals and, applications for permits issued under Chapter 40E-63, F.A.C., including the addition of special conditions as necessary to implement the requirements of Chapter 40E-63, F.A.C., and the Everglades Forever Act, Section 373.4592, F.S., and other applicable provisions of Chapters 373 and 403, F.S., except when the staff recommendation is for denial of such applications.
(2) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended________.
40E-63.415 No Notice General Permits.
(1) (a) through (1)(b) No change.
(c) The following BMPs are implemented by the landowner, lessees, and operators, if applicable, and the property must be made available for inspection by District staff or other delegated agents within 14 days after written notice:
1. Phosphorus is only applied to correct phosphorus deficiencies based on soil testing or tissue testing, or for turf and landscape areas, phosphorus is only applied to meet initial establishment and growth needs (fertilizer composition less than 2% for an application rate not to exceed 0.25 lbs P2O5/1000 ft2 per application, nor exceed 0.50 lbs P2O5/1000 ft2 per year).
2. through 4. No change.
(2) through (4) No change.
(5) Notwithstanding the foregoing, the District shall require the submission of applications for General Permits from No Notice General Permit holders if the District determines that the property exceeds its proportional share of phosphorus loading based on representative water quality data for the property, as determined in Appendix B3.1.(incorporated by reference in paragraph subsection 40E-63.446(2)(a), 40E-63.404(7), F.A.C.). Notice of the requirement shall be provided to parcel owners in writing. Applications for new General Permits shall be submitted to the District within 45 days from the date of the notice.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended________.
40E-63.420 BMP Plan Pre-approvals.
(1) For entities required to obtain a General Permit, a BMP Plan shall be submitted to the District within 30 days after the effective date of this part of Chapter 40E-63, F.A.C. Failure to provide a complete BMP Plan within 30 days from the effective date of this part of Chapter 40E-63, F.A.C., shall not justify a corresponding delay for full implementation of the approved BMP Plan as described in subsection 40E-63.420(2), F.A.C., and will result in enforcement action pursuant to Rule 40E-63.461, 40E-63.460, F.A.C.
(2) No change.
(3) In order to assure that the schedule mandated by subsection 40E-63.420(2), F.A.C., is met, the District will may pre-approve a BMP Plan by letter, as long as the BMP Plan is complete and meets the criteria required under Rules 40E-63.435 or 40E-63.437, F.A.C., as applicable. The District will attempt to make a final determination on the BMP Plan within 10 days of receipt of a complete plan and the applicant shall begin implementation in accordance with the approved implementation schedule.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended________.
40E-63.430 General Permit Applications.
(1) No change.
(2) Within 45 days after the effective date of this part of Chapter 40E-63, F.A.C., applications for new General Permits or General Permit Renewals shall be submitted to the District. Applicants shall use Form 1045, dated________, and the “Guidebook for Preparing an Application for a C-139 Basin Pollutant Source Control Permit” (“Guidebook”), dated __________, (incorporated by reference herein in subsection 40E-63.404(1), F.A.C.), or the equivalent electronic permitting application (e-permitting) tool, with all required supporting documentation. Copies of Form 1045 and the Guidebook are available on the District’s website (www.sfwmd.gov), or from the District’s Clerk’s Office at 3301 Gun Club Road, West Palm Beach, FL 33406, (561)686-8800, upon request.
(3) through (5) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended________.
40E-63.435 BMP Plans.
In order to obtain a General Permit, applicants shall submit a BMP Plan that includes a multi-level approach to implementation and operation including the following: for each crop or land use within each permit basin. A BMP Plan shall take into account site-specific conditions, potential phosphorus sources, primary phosphorus species, and transport mechanisms based on available data; and ensure that a thorough approach to implementation and maintenance will be implemented. If a water management system is shared by multiple operating entities, each entity shall submit a separate BMP Plan for their land but the water management operational plan shall be consistent. The BMP Plan shall include the following:
(1) A description of a BMP Plan, including specific methods for implementation and maintenance, based on the BMPs described in “Appendix B1, BMP Description and Equivalent Points Reference Table”, dated_________, (incorporated by reference herein in subsection 40E-63.404(3), F.A.C.). To ensure that approved BMP plans have a comparable level of effort among permittees, the BMP Plan shall propose a minimum of 35 BMP equivalent points. A copy of Appendix B1 is available on the District’s website (www.sfwmd.gov), or from the District’s Clerk’s Office at 3301 Gun Club Road, West Palm Beach, FL 33406, (561)686-8800, upon request.
(2) Of the 35 BMP equivalent points, a minimum of 20 BMP equivalent points shall meet the following criteria:
(a) A minimum of 10 BMP equivalent points in nutrient control practices
(b) A minimum of 5 BMP equivalent points in water management practices
(c) A minimum of 5 BMP equivalent points in particulate matter and sediment control practices. Pasture management BMPs, as described in Appendix B1 (incorporated by reference in subsection 40E-63.435(1), 40E-63.404(3), F.A.C.), can provide equivalent points towards this category, if applicable.
(3) If at the time a BMP Plan is proposed for approval, the District has previously determined the C-139 Basin to be out compliance, and the permit basin has an approved BMP Plan including water quality improvement activities, the proposed BMP Plan shall include continuation of the approved BMP Plan and water quality improvement activities; or propose an equivalent alternative for District consideration. The applicant shall provide reasonable assurance that the alternative contains the equivalent or greater phosphorus reduction effectiveness of the approved BMP Plan and water quality improvement activities. The proposal must provide the basis that the BMP Plan and water quality improvement activities would have met the criteria indicated in subsections 40E-63.461(3) and (4) 40E-63.460(3), and (4), F.A.C., as applicable, for the years when the C-139 Basin was determined by the District to be out of compliance and water quality improvement activities were required.
(4) No change.
(5) A description of records and documentation to be maintained on-site or at a suitable location that is readily available for District review. The records and documentation shall be sufficient to verify BMP implementation, maintenance, and training, as described in the post-permit compliance section, Appendix C of the Guidebook (incorporated by reference in subsection 40E-63.430(2) 40E-63.404(2). F.A.C.), on the form entitled “C-139 Basin Annual Report – Certification of BMP Implementation”.
(6) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New________.
See Rule 40E-63.442, F.A.C.
40E-63.437 Alternative BMP Plans.
Applicants who propose to satisfy the water quality requirements of this part of Chapter 40E-63, F.A.C., by employing a BMP Plan other than those described in subsections 40E-63.435(1) and (2), F.A.C., may seek approval for an equivalent alternative through the District permit process. The applicant shall provide reasonable assurance, through the information required below and the requirements indicated in subsections 40E-63.435(3), (4), (5), and (6), F.A.C., that the alternative contains the equivalent or greater phosphorus reduction effectiveness of a 35-point BMP Pplan. A BMP Plan shall take into account site-specific conditions, potential phosphorus sources, primary phosphorus species, and transport mechanisms; and ensure that a thorough approach to implementation and maintenance will be implemented. In order to seek approval of an alternative BMP Plan, applicants must submit the information specified for the applicable alternative as part of the permit application process.
(1) Alternative Type BMP. If an application proposes BMPs not listed in Appendix B1 (incorporated by reference in subsection 40E-63.404(3), F.A.C.), as required in subsection 40E-63.435(1), F.A.C., the application shall also include the following information for District approval:
(a) through (d) No change.
(e) Technical basis for the reduction effectiveness of the proposed BMP. The applicant shall may be required to demonstrate effectiveness through a proposed monitoring program or through representative technical references including modeling approved by the District. If approved, the District will determine the appropriate BMP equivalent point credit consistent with Appendix B1 (incorporated by reference in subsection 40E-63.435(1) 40E-63.404(3), F.A.C.).
(2) Alternative BMP Points per Category. If the BMP Plan does not meet the minimum number of equivalent points per BMP category as required in subsection 40E-63.435(2), F.A.C., the application shall include a site assessment demonstrating that an alternative BMP Plan will provide an equivalent or greater reduction effectiveness than using the standard approach.
The site assessment shall evaluate phosphorus imports and transport in discharges; current BMPs and implementation methods; other activities for which practices not covered under BMPs are not being implemented; (e.g., grazing, irrigation, nutrient and water management); and representative water quality and soil data. Water quality data that can be used for the assessment include those available from the District sub-basin or synoptic (grab) monitoring programs, or properly collected grab samples using field kits of adequate precision by the applicant.
(3) No change.
(a) through (c) No change.
(d) BMP equivalent points shall be initially determined by the District prior to issuance of a permit based on the BMP equivalent points established in Appendix B1 (incorporated by reference in subsection 40E-63.435(1) 40E-63.404(3), F.A.C.). Additional BMP equivalent points will may be approved by the District, if the applicant provides reasonable assurance through plans, test results, water quality data or other information, that the BMP project will demonstrate improvement in phosphorus removal efficiency in comparison to standard BMP implementation methods.
(e) Once the demonstration project is complete and a final report is submitted in accordance with the approved scope, the permittee shall submit a Letter Modification application requesting that the approved BMP Plan be modified to incorporate the BMP or water quality improvement activity if the District determines that they were successfully developed under the project. The application shall include the information described under Rules 40E-63.430, 40E-63.435, and 40E-63.437, F.A.C., as applicable, and shall describe how the report recommendations for BMP implementation will apply to the applicable crops or land uses for District review. The District shall review the BMP equivalent points initially assigned and will may adjust them based on the reported phosphorus reduction levels and approved methods for implementation of the proposed BMP or water quality improvement activity. If the permittee decides that the BMP resulting from the demonstration project is not to be proposed for continued implementation, the permittee is required to submit a permit modification proposing a BMP Plan, as described in Rule 40E-63.435 or 40E-63.437, F.A.C., as applicable. The application for modification of the approved BMP Plan shall be submitted no later than 30 days after the project completion date pursuant to the District-approved scope.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New_________.
40E-63.438 Early Implementation of Water Quality Improvement Activities.
An applicant may request approval for early implementation by opting to submit a proposal for voluntary implementation of additional BMPs (early BMPs), or a voluntary demonstration project that includes a BMP performance verification plan. Based on this early implementation, applicants may quality for deferral from water quality improvement activities if the C-139 Basin is determined out of compliance in the future. Applicants electing these approaches must submit for District review the following:
(1) Either proposal shall be submitted together with an application for a new permit, permit renewal, or as a Letter Modification.
(a) For optional early BMPs the application shall provide information for meeting the criteria below:
1. A description of the BMP or group of BMPs (early BMPs) that are proposed in addition to those required by rule at the time of application (Rule 40E-63.435 or subsection 40E-63.461(3) 40E-63.460(3), F.A.C., as applicable.) The proposal shall include the specific methods for implementation and maintenance of the early BMPs.
2. The proposal shall provide reasonable assurance through technical documentation, and the requirements indicated in subsections 40E-63.435(4) and (5), F.A.C., that the combined effect of the optional early BMPs and rule-required BMPs will ensure a phosphorus loading reduction for the identified permit basin or parcels sufficient for the C-139 Basin to consistently achieve compliance with the performance measure’s tTarget, as described in Appendix B2 (incorporated by reference in subsection 40E-63.446(1), 40E-63.404(4) F.A.C.). The District will review whether the proposed loading reduction levels would be conducive to meeting the tTarget Unit Area Load (UAL) based on the most recent five years of water quality data.
3. The proposal shall include an implementation schedule. To qualify for deferral, District-approved early BMPs shall be fully implemented during the water year for which the deferral can be applied.
(b) For voluntary demonstration projects, the application shall propose a BMP or water quality improvement measure demonstration project that meets the following:
1. Complies with the criteria described under paragraph section 40E-63.437(3)(a), F.A.C,
2. Projects estimated phosphorus reductions based on available technical references, and
3. Proposes a verification plan through a Permit Discharge Monitoring Program to confirm and quantify the estimated phosphorus reductions. The verification plan shall meet the criteria described in subsection 40E-63.460(4) 40E-63.460(4), F.A.C.
(2) Upon District approval of the voluntary early BMP implementation project or demonstration project with a verification plan, the permittee will be subject to the BMP reporting and verification requirements of this Chapter for those voluntary initiatives, as described in permit conditions. Permittees cannot be deemed out of compliance solely for failure to implement the early initiatives, however, the District will deem the permittee cannot qualify with the conditions of paragraphs 40E-63.446(2)(b) and 40E-63.446(2)(c) unless unable to claim a deferral if:
1. The early BMPs are implemented,
2.1. Reporting and verification requirements for the voluntary early implementation projects are not met, as determined by the District., and
3.2. The permittee is not in compliance with the BMP Plan required by the permit.
(3) Early implementation plans that are approved to provide deferral from additional water quality improvement activities for a water year shall become permit requirements and lose their optional status.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New________.
40E-63.439 Permit Modifications, Transfers and Renewals.
(1) Applicants for permit modifications, transfers and renewals must use the appropriate Sections of Form 1045 (incorporated by reference in subsection 40E-63.430(2) 40E-63.404(1), F.A.C.), or equivalent electronic permitting application (e-permitting) tool.
(2) Modifications and Letter Modifications: Letter modifications are applicable for requesting approval for demonstration or verification plan projects for phosphorus reduction under Rule 40E-63.437, F.A.C., for early implementation of water quality improvement activities under Rule 40E-63.438, F.A.C., for implementing or modifying a voluntary Permit Basin Discharge Monitoring Program under Rule 40E-63.462, F.A.C., and for water quality improvement activities in accordance with subsection 40E-63.461(3) or (4) 40E-63.460(3) or (4), F.A.C., 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. Applications for modifications are applicable to any other changes except for clerical changes as indicated in subsection 40E-63.443(3), F.A.C.
A permittee may apply for a modification or a letter modification to an existing General Permit issued under this part of Chapter 40E-63, F.A.C., unless the permit has expired or has been otherwise revoked or suspended. An application for modification or letter modification will not be processed as a complete application if the permit is not in compliance with applicable permit conditions, unless the permit modification is required to bring the permit into compliance. Modifications and letter modifications will be evaluated based on the criteria in effect at the time that the application to modify is submitted. Applications for permit modifications and letter modifications shall be subject to the following requirements and limitations:
(a) through (b) No change.
(3) Transfers: A permittee shall notify the District within 30 90 days after any transfer, sale or conveyance of land or works permitted under this part of Chapter 40E-63, F.A.C., to allow time for processing the application. The permittee remains responsible for the requirements of the permit until the permit is transferred or closed at the request of the permit holder at the time the property is sold. A permittee or transferee may apply for a permit transfer, conveying responsibility for permit compliance. If an application for permit transfer is not received within 90 days after the sale or conveyance of the property, the permit will become nontransferable and the transferee will be required to apply for a new permit. Permit transfers shall be subject to the following requirements and limitations:
(a) through (c) No change.
(4)(a) through (b) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended 6-20-07,________.
See Rule 40E-63.432, F.A.C.
40E-63.441 Permit Duration.
Pursuant to the EFA, Section 373.4592(4)(f)2., F.S., permit renewals issued pursuant to this pPart of Chapter 40E-63, F.A.C., are valid for a 5-year term, beginning 90 days after the effective date of this rule amendment. Subsequent permit renewals are effective for 5-year renewal cycles from the previous expiration date, unless:
(1) No change.
(2) The permit is otherwise modified by enforcement actions pursuant to subsection or (40E-63.461(1) 40E-63.460(1), F.A.C.;
(3) through (7) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New________.
See Rule 40E-63.434, F.A.C.
40E-63.443 Permit Application Processing Fees.
(1) through (4) No change.
Rulemaking Authority 373.016, 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592, FS. Law Implemented 373.016, 373.085, 373.086, 373.109, 373.451, 373.453, 373.4592(4)(f) FS. History–New ________.
See Rule 40E-63.436, F.A.C.
40E-63.444 Limiting Conditions for General Permits in the C-139 Basin.
(1)(a) through (b) No change.
(c) The permittee shall submit to the District an annual report certifying BMP implementation in accordance with the permit. The report is due February 1 of each year. Failure to submit the report by February 1, will result in onsite verification of BMP implementation by District staff and the requirement for the permittee to submit a detailed report documenting implementation of each BMP in the approved BMP Plan for the previous calendar year. Failure to submit the required annual report by April 30 of each year may result in revocation of the General Permit. The notification will be sent by certified mail and indicate that the permit will be revoked within 30 days after the date of the certified mailing unless the annual report is received within those 30 days. If the permit is revoked, the permittee shall be required to apply for a new General Permit and shall be subject to enforcement under subsection 40E-63.461(1) 40E-63.460(1), F.A.C. The new permit will include special conditions requiring that documentation certifying BMP implementation is submitted quarterly, at a minimum.
(d) through (e) No change.
(f) The permittee shall notify the District in writing within 30 90 days of any transfer, sale or conveyance of land or works described in the permit.
(g) through (l) No change.
(m) The C-139 Basin is required to achieve compliance with the phosphorus load limitation requirement and performance measures as specified in Appendix B2 (incorporated by reference in subsection 40E-64.446(1) 40E-63.404(4), F.A.C.).
(n) through (p) No change.
(q) If the District determines that any permittee in a General Permit is not complying with the specific terms and conditions of the General Permit, or the water quality performance measures (including proportional share, in accordance with Chapter 40E-63, F.A.C.), the District will institute enforcement or corrective proceedings against the permittee, any co-permittees, or both, as applicable pursuant to Rules 40E-63.446 40E-63.450 and 40E-63.461 40E-63.460, F.A.C.
(r) Authorizations from other agencies for disposal or application of wastewater residuals (biosolids), animal manure, solid waste, fill material, or other materials containing phosphorus within the C-139 Basin, shall not relieve permittees from complying with the provisions of this Rule. Permittees will Water quality monitoring data may be required by the District to demonstrate no potential impacts on phosphorus loading.
(s) The permitted discharge shall not cause adverse water quality impacts to of receiving water and adjacent lands regulated by Chapter 373, F.S.
(t) through (u) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.423, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended___________.
40E-63.446 C-139 Basin Compliance.
(1) If the C-139 Basin is determined to not meet the performance measures developed in accordance with “Appendix B2, C-139 Basin Performance Measure Methodology”, dated _________, Appendix B2.1 “FORTRAN Program for Calculating C-139 Basin Flows and Phosphorus Loads”, and Appendix B2.2 “Flow Computation Methods Used to Calculate C-139 Basin Flows” (incorporated by reference herein in subsection 40E-63.404(4), F.A.C.), the basin as a whole will be deemed out of compliance with the water quality requirements of this part of Chapter 40E-63, F.A.C. Copies A copy of Appendix B2, B2.1 and B2.2 are available on the District’s website (www.sfwmd.gov), or from the District’s Clerk’s Office at 3301 Gun Club Road, West Palm Beach, FL 33406, (561)686-8800, upon request.
(2) If the C-139 Basin is out of compliance, water quality improvement activities will be required for permit basins except in the following situations: to achieve their proportional share of the basin-wide loading phosphorus load, as indicated in Appendices B3.1, and B3.2 (incorporated by reference in subsections 40E-63.404(7) and (8), F.A.C.). Exceptions are provided below in subsection (3).
(3) Upon the effective date of the amendments to this part of Chapter 40E-63, F.A.C., the first water year of compliance determination for which water quality improvement activities can be required is WY2013. The requirement for water quality improvement activities in a permit basin will be deferred for one water year if the District determines that one or more of following conditions exist.
(a) The permit basin is located in a sub-basin that is determined to not exceed its proportional share of the basin-wide loading based on District-collected data for the sub-basin or, if applicable, its Permit Basin Discharge Monitoring Program results are determined not to exceed the proportional share in accordance with “Appendix B3.1, Permittee Annual Phosphorus Load Determination Based on Sub-basin Monitoring and the Permit Basin Discharge Monitoring Program”, dated __________, and “Appendix B3.2, Criteria for Required Phosphorus Reductions”, dated _______, both of which are incorporated by reference herein. Copies of Appendices B3.1 and B3.2 are available on the District’s website (www.sfwmd.gov), or from the District’s Clerk’s Office at 3301 Gun Club Road, West Palm Beach, FL 33406, (561)686-8800, upon request (incorporated by reference in subsection 40E-63.404(7), F.A.C.).
(b) District approved early BMPs, as described in paragraph subsection 40E-63.438(1)(a), F.A.C., were fully implemented in the permit basin during a water year that was used to deem the C-139 Basin out of compliance (this provision applies, providing deferral only to the parcels where the early BMPs apply),
(c) A District approved demonstration project including a verification plan, as described in paragraph subsection 40E-63.438(1)(b), F.A.C., was conducted within the permit basin during a water year that was used to deem the basin out of compliance (this provision applies, providing deferral only to the land uses or crops to which the project applies),
(d) The permit basin, or portion thereof, has been issued and meets the conditions of a determination of impracticability as described in subsection 40E-63.461(6) 40E-63.460(6), F.A.C., (this provision applies providing deferral to the lands where the determination applies), or
(e) No change.
(3) Upon the effective date of the amendments to this part of Chapter 40E-63, F.A.C., the first water year of compliance determination for which water quality improvement activities can be required is WY2013.
(4) If the C-139 Basin is deemed out of compliance, the District will evaluate BMP program performance at the sub-basin level in accordance with Appendix B3.1 (incorporated by reference in paragraph subsection 40E-63.446(2)(a) 40E-63.404(7), F.A.C.).
(5) The District will determine annual phosphorus discharge performance for permit basins that have an individual discharge monitoring plan in accordance with Appendix B3.1 (incorporated by reference in paragraph 40E-63.446(2)(a) 40E-63.404(7), F.A.C.).
(6) The District will provide written notice to the C-139 Basin permittees on the C-139 Basin compliance based upon performance measure results (Appendix B2, incorporated by reference in subsection 40E-63.446(1) 40E-63.404(4), F.A.C.), and the sub-basin and permit basin performance results (Appendix B3.1, incorporated by reference in paragraph subsection 40E-63.446(2)(a) 40E-63.404(7), F.A.C.) and whether water quality improvement activities are required. The District shall attempt to transmit the written notices by August of each year. The notices shall describe permittees’ required actions for proposing water quality improvement activities based on these assessments including required total phosphorus reduction levels in accordance with Appendix B3.2 (incorporated by reference in paragraph subsection 40E-63.446(2)(a) 40E-63.404(8), F.A.C.). These actions are described in subsection 40E-63.461(2) 40E-63.460(2), F.A.C.
(7) In accordance with Appendix B2 (incorporated by reference in subsection 40E-63.446(1) 40E-63.404(4), F.A.C.), the District shall continue collecting monitoring data from the C-139 Basin for the purpose of determining compliance.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New_______.
See Rule 40E-63.4610, F.A.C.
40E-63.461 C-139 Basin Permit Compliance.
(1) No change.
(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 40E-63.450, F.A.C., the permittee shall propose water quality improvement activities in accordance with the following:
(a) No change.
(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) 40E-63.460(3), F.A.C., or a verification plan in accordance with subsection 40E-63.461(4) 40E-63.460(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 subsection 40E-63.446(2)(a) 40E-63.404(7) and (8), 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 may 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) No change.
(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) 40E-63.404(3), 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 efficiency resulting from the proposal as follows:
a. No change.
b. 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 indentified when a site-assessment is completed pursuant to subsection 40E-63.437(2), F.A.C.
c. No change.
(c) through (d) No change.
(4) If a permittee selects 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) through (c) No change.
(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 efficiency. Total phosphorus and phosphorus speciation data collected at the District sub-basin monitoring locations may serve as representative monitoring.
(e) No change.
(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, F.A.C., and subsections 40E-63.461(2) and (3) 40E-63.460(2) and (3), F.A.C., to either:
a. through b. No change.
(5) No change.
(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 subsection 40E-63.446(2)(a) 40E-63.404(7) and (8), F.A.C.), for the range of historic rainfall conditions in accordance with Appendix B2 (incorporated by reference in subsection 40E-63.446(1) 40E-63.404(4), 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 or 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. through e. No change.
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 subsection 40E-63.446(2)(a) 40E-63.404(8), F.A.C.).
Rulemaking Authority 373.044, 373.083, 373.085, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Amended ________.
See Rule 40E-63.470, F.A.C.
40E-63.462 Permit Basin Discharge Monitoring Program.
(1) In addition to implementing an approved BMP Plan, permittees may elect or be required to participate in a discharge monitoring program pursuant to Rules 40E-63.437, 40E-63.438, paragraph 40E-63.444(1)(r) 40E-63.449(1)(r), subsection 40E-63.461(4) 40E-63.460(4) or 40E-63.461(6), 40E-63.460(6) F.A.C., and be subject to:
(a) For permittees electing a discharge monitoring program or permittees required to implement a monitoring program pursuant to subsection 40E-63.461(6), 40E-63.460(6), F.A.C.: alternative, site-specific evaluations of compliance with phosphorus load targets and limits for the areas represented by the monitoring plan when the C-139 Basin is collectively determined to be out of compliance in accordance with Chapter 40E-63, F.A.C., Appendix B2 (incorporated by reference in subsection 40E-63.446(1) 40E-63.460(6), F.A.C.); and
(b) Compliance with permit conditions in accordance with Rule 40E-63.464 40E-63.444, F.A.C.
(2) To implement a discharge monitoring program, permittees must submit a permit application with the following information:
(a) No change.
(b) All flow quantity discharge from the property shall be calculated using a proposed method by a Florida-Registered Professional Engineer in a flow calibration report approved by the District. A calibration report shall be required for each pump, culvert or other discharge structure. Uncontrolled off-site discharges, such as overland sheet flow, shall also be quantified in the report. Each calibration report shall contain, at a minimum: data collection methodology, instrumentation and procedures; the actual field data collected; the basis for the full operating range represented by the data; the methodology for development of the calibration equation; operational information needed to calculate flow with a temporary backup methodology to be used if the primary equipment becomes inoperable; and the final calibration equation and primary method for calculating the flow. A plan that includes the items specified in the “Flow Calibration Guidelines Developed in Support of Chapter 40E-63, F.A.C. Everglades BMP Permit Program” (incorporated by reference in paragraph subsection 40E-63.462(2)(d) 40E-63.404(9), F.A.C.), generally provides reasonable assurance that methods to measure water quantity will be reasonably accurate, however, other alternatives may be proposed by the applicant and authorized by the District;
(c) No change.
(d) Other site specific information required by Appendix B3.1, (incorporated by reference in paragraph subsection 40E-63.446(2)(a) 40E-63.404(7), F.A.C.).
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New_________.
See Rule 40E-63.456, F.A.C.
40E-63.464 Limiting Conditions for the Permit Basin Discharge Monitoring Program.
For those applicants proposing to implement the Permit Basin Discharge Monitoring Program, the District-approved monitoring plan will be incorporated into a modified an amended General Permit and the following limiting conditions shall be met in addition to the conditions indicated in Rule 40E-63.444, F.A.C. These limiting conditions will be attached to the General Permit.
(1) through (12) No change.
Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.016, 373.085, 373.086, 373.451, 373.453, 373.4592(4)(f) FS. History–New 1-24-02, Formerly 40E-63.458, Amended ________.
See Rule 40E-63.458, F.A.C.
