Pursuant to paragraph 40E-63.460(3)(d), F.A.C., the South Florida Water Management District is required to revise Part IV of Chapter 40E-63, F.A.C., to ensure that the objectives of the Everglades Forever Act, Section 373.4592(4)(f)5., F.S., are met ...

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE 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-63.432: Permit Modifications, Transfers and Renewals
40E-63.434: Permit Duration
40E-63.435: BMP Plans
40E-63.436: Permit Application Processing Fees
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-63.440: General Permit Application Requirements in the C-139 Basin
40E-63.441: Permit Duration
40E-63.442: Basis for Issuance of General Permits in the C-139 Basin
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-63.450: Individual Permit Application Requirements in the C-139 Basin
40E-63.452: Basis for Issuance of Individual Permits in the C-139 Basin
40E-63.454: Limiting Conditions for Individual Permits in the C-139 Basin
40E-63.456: Optional Discharge Monitoring Program
40E-63.458: Limiting Conditions for the Optional Discharge Monitoring Program
40E-63.460: 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 Program
40E-63.470: C-139 Basin Works of the District Permit Compliance
PURPOSE AND EFFECT: Pursuant to paragraph 40E-63.460(3)(d), F.A.C., the South Florida Water Management District is required to revise Part IV of Chapter 40E-63, F.A.C., to ensure that the objectives of the Everglades Forever Act, Section 373.4592(4)(f)5., F.S., are met if the District determines that the C-139 Basin has not achieved the rule-required phosphorus levels for the fourth time. The C-139 Basin has been out of compliance for at least four water years.
SUMMARY: The proposed rule amendments require landowners whose water management systems discharge into Works of the District within the C-139 Basin, as described in the rule, to implement best management practices (BMPs) to reduce and control phosphorus discharges from the basin. The BMPs will take into account site-specific conditions, potential phosphorus sources, primary phosphorus species, and transport mechanisms based on available data. This will ensure a thorough and consistent approach to implementation and maintenance. The proposed amendments also enhance the compliance methodology to more accurately reflect the conditions in the C-139 Basin, and if required, establish remedial actions if the basin does not achieve compliance with the phosphorus performance measures in the future.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Costs (SERC) has been prepared in support to the revisions to Part IV and Appendix B of Chapter 40E-63, F.A.C, and is available on the District’s website at www.sfwmd.gov or by contacting one of the persons listed in the contact section below. The draft SERC has been prepared in accordance with the requirements of Section 120.541(2), F.S. A summary of the conclusions reached is presented below:
(a) The rule amendments provide No Notice General Permits (NNGP) to owners of land parcels that implement basic BMPs and that are not part of a central drainage system, are inactive, or are less than 40 acres. These BMPs are not expected to incur in significant costs. Costs are likely to be zero or nominal (e.g., soil and/or plant tissue test).
(b) For permittees with General permits, the implementation costs of the BMP Plan will vary based on the current level of implementation. Permittees who have judiciously implemented BMPs will be least impacted by the proposed rule in terms of transactional costs. Also, many of the BMPs that permittees will be required to implement as a result of the proposed rule may already be required under other rules, or fully or partially implemented as standard operating procedure for the agricultural operation.
(c) In the event the C-139 Basin is determined by the District to be out-of-compliance, permittees may incur costs to develop a plan of proposed water quality improvement activities and implement these activities. The magnitude of cost will depend on the percentage (%) total phosphorus reduction required from each permittee. The estimated transactional costs associated with each proposed rule revision are provided in Section 4.0 of the SERC.
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.
SPECIFIC AUTHORITY: 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS.
LAW IMPLEMENTED: 373.085, 373.4592 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: August 12, 2010, 9:00 a.m.
PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: South Florida Water Management District Clerk, [phone] or [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Carmela Bedregal, Engineer Supervisor, Everglades Regulation Division, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416, [phone], ext 2737 or [phone], email: [e-mail]. For procedural questions contact Jan Sluth, Paralegal, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416, [phone], ext 6299 or [phone], email: [e-mail].
Copies of the materials incorporated by reference in Rule 40E-63.404, F.A.C., are available online at www.sfwmd.gov or by contacting either of the persons listed herein.

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-63.400 Purpose and Policy.

(1) This part of Chapter 40E-63, F.A.C., Program implements requirements of the Everglades Forever Act (EFA), Sections 373.4592(4)(f)5. and 6., F.S., for the C-139 Basin, and also provides a regulatory process for landowners whose water management systems connect with and make use of the canals, structures and other Works of the District within the C-139 Basin, in accordance with Section 373.085, F.S.

(2) Since water quality monitoring data from the C-139 Basin demonstrate that the landowners within the C-139 Basin have collectively exceeded historical the annual phosphorus loading levels of phosphorus of 28.7 metric tons, landowners are required to implement a best management practices (BMP) program for reduction of phosphorus in discharges that is consistent with the land uses within the basin.

(3) The objectives of this part of Chapter 40E-63, F.A.C., BMP program are as follows:

(a) To implement and continuously improve through adaptive management immediately require initial implementation of a BMP program, including modifications to existing water management systems, for reducing and controlling phosphorus discharges from the C-139 Basin (later in this Chapter referred to as Level I);

(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 discharges; for determining whether additional measures will be required of landowners (later in this Chapter referred to as Levels II through IV); and

(c) To establish a BMP compliance verification an inspection 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 Compliance Methodology”, dated _________ October 2001; and

(d) To develop and conduct research and demonstration projects to improve and confirm the effectiveness of BMPs for reducing phosphorus and other constituents that are not being significantly improved by either Stormwater Treatment Areas (STAs) or BMPs.

(4) This part of Chapter 40E-63, F.A.C., Program requires landowners to reduce phosphorus discharges from the C-139 Basin, and in conjunction with the Stormwater Treatment Areas (STAs), especially STA-5, provides a sound basis for the State of Florida’s long-term improvement cleanup and restoration objectives for the Everglades. It is recognized that achieving phosphorus and other water quality standards will involve an adaptive management approach, whereby best available information and technology are used to identify and implement incremental BMP improvement activities for further phosphorus reduction and water quality improvements, if needed.

(5) Except as otherwise provided in this chapter, the permittees within the C-139 Basin shall not be required to implement any additional water quality improvement measures before December 31, 2006, in accordance with the EFA, Section 373.4592(4)(f)3., F.S.

(5)(6) Unless otherwise provided by this part IV 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.

(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.

(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 subsections 40E-63.404(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 Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended_________.

 

40E-63.401 Scope of Program.

(1) For the purposes of this part of Chapter 40E-63, F.A.C., rule, the Works of the District for the C-139 Basin include water control structures, right-of-ways, canals, and other water resources that the South Florida Water Management District owns, operates and controls, and that have been specifically named as Works of the District pursuant to Sections 373.085 and 373.086, F.S. Works of the District for the C-139 Basin including G-96, G-134, G-135, include G-136, G-150, G-151, G-152, G-406, G-342A, G-342B, G-342C, G-342D, L-1 Canal, L-2 Canal, L-3 Canal (north of G-406), and their open channel connections.

(2) Unless expressly exempted, all lands within the C-139 Basin are users of the Works of the District within the C-139 Basin, and as such must be granted a No Notice General Permit pursuant to the provisions of Rule 40E-63.415, F.A.C., or must obtain a General or Individual Permit pursuant to the provisions of Rule 40E-63.430 40E-63.440 or 40E-63.450, F.A.C., respectively. The rules shall apply to existing and new discharges releases of water to Works of the District within the C-139 Basin.

(3) Landowners in the C-139 Basin share responsibility for achieving phosphorus load limitations in the basin. The compliance program, as established in this part of Chapter 40E-63, F.A.C., ensures that landowners are responsible for their proportional share of phosphorus load discharged from the C-139 Basin based upon their proportional share of acreage to the total C-139 Basin acreage.

(4) Permits issued under this part of Chapter 40E-63, F.A.C., do not eliminate or alter other applicable permit requirements for discharges that impact other water bodies, basins, or Works of the District, nor do they affect the permit requirements of other District regulatory programs.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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.

(2) “BMP Plan” means a combination of BMPs that meets, but is not limited to, the requirements of Rules 40E-63.435 and 40E-63.437, F.A.C., as determined by the District.

(3) “BMP equivalent point” means the numerical value assigned to a BMP as provided in Appendix B1 (incorporated by reference in subsection 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 are based on expert review, technical publications, best professional judgment, and cooperative workshops with stakeholders.

(4) “C-139 Basin” means those lands described in the EFA, Section 373.4592(16), F.S. or lands outside those boundaries which discharge to the C-139 Basin or to the canals or structures described in subsection 40E-63.401(1), F.A.C.

(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, F.A.C.

(6) “Discharge” means any surface water runoff generated by rainfall, irrigation, or seepage flowing off-site from a land area. Runoff may occur through a structure (pump or gravity) or may flow as uncontrolled discharge from a land area.

(7) “Nutrient control practices” means a category of BMPs that minimizes nutrient input and the movement of nutrients off-site by efficient and controlled application of nutrients (e.g., organic and chemical fertilizers, soil amendments, and residuals.)

(8) “Parcel” means a contiguous land area identified in the county tax rolls under common ownership.

(9) “Particulate matter and sediment control practices” means a category of BMPs that minimizes the movement off-site of nutrients in particulate matter and sediments by controlling the amount of eroded soil and plant matter in discharges.

(10) “Permit basin” means a parcel or group of parcels served by one or more discharge structures that collectively represent all of the discharge from that area of land. A permit may have one or more permit basins. The boundaries of a permit basin are determined by the District based on available hydrologic data to define, to the extent practicable, the land area discharging to each sub-basin.

(11) “Structure” means a structural device or hydrologic feature (e.g. pump, culvert, open connection, land surface grading, ditch) that water flows through or across and is ultimately discharged/directed from a permit basin to a receiving water body.

(12) “Sub-basin” is an area of land determined by the District to represent all discharges to District monitoring locations based upon hydrologic mapping, and permittee submitted information, as represented in Appendix B3.1 “Permittee Annual Phosphorus Load Determination Based on Sub-basin Monitoring and the Permit Basin Discharge Monitoring Program”, dated_______.

(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-63.460(4), F.A.C.

(14) “Water management practices” means a category of BMPs that minimizes the quantity and improves the quality of off-site discharges which carry nutrients downstream. BMPs for water management include discharge and irrigation management practices to reduce runoff.

(15) “Water management system” means the collection of devices, improvements or natural systems whereby surface waters are conveyed, controlled, impounded, or obstructed. For water management systems serving multiple entities, dams, impoundments, reservoirs and their structures and canals are referred to as the common facilities.

(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 subsection 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) “Water year” or “WY” means the 12-month period beginning on May 1 and ending on the following April 30.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended________.

 

40E-63.404 Incorporation of Forms, Instructions and References.

The documents listed in subsections (1) through (8) are hereby incorporated 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, [phone], upon request.

(1) South Florida Water Management District Form 1045, January 2002, entitled, “Application For a A C-139 Basin Pollutant Source Control Works Of The District Permit” dated ___________ and “Guidebook for Preparing an Application for a C-139 Basin Pollutant Source Control Works of the District Permit”, dated January 2002 (“Guidebook”).

(2) “Guidebook for Preparing an Application for a C-139 Basin Pollutant Source Control Permit” (“Guidebook”), dated __________.

(3)(2) “Appendix B1 – BMP Description and Equivalent Points Reference Table”, dated _________ January 2002.

(4)(3) “Appendix B2 – C-139 Basin Performance Measure Compliance Methodology”, dated _________ January 2002, and setting forth the compliance methodology the District will follow for the C-139 Basin with regard to the applicable phosphorus load limitation.

(5)(4) “Appendix B2.1 – FORTRAN Program for Calculating C-139 Basin Flows and Phosphorus Loads”, dated ________ January 2002.

(6)(5) “Appendix B2.2 – Flow Computation Methods Used to Calculate C-139 Basin Flows”, dated________ January 2002, providing applicable mathematical methods for calculating flow rates through water management structures.

(7)(6) “Appendix B3.1 – Permittee Annual Phosphorus Load Determination Based on Sub-basin Monitoring and the Optional Permit Basin Discharge Monitoring Plan Program”, dated ________ January 2002, setting forth the procedures the District will follow to calculate a permittee’s proportional share of phosphorus load in order to determine eligibility for release from implementation of additional BMPs when the permittee has elected to implement the optional discharge monitoring plan and the C-139 Basin is out of compliance.

(8) “Appendix B3.2 – Criteria for Required Phosphorus Reductions”, dated_________.

(9) “Flow Calibration Guidelines Developed in Support of Chapter 40E-63, F.A.C., Everglades BMP Permit Program”, amended July 24, 1997.

(7) The documents listed in subsections (1) through (6) are hereby incorporated by reference, are published by the District, and are available on the District’s website (www.sfwmd.gov) or from the District at 3301 Gun Club Road, West Palm Beach, FL 33406, [phone], upon request.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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, applications to modify or transfer existing Individual Permits and all applications for General pPermits 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) All recommendations for denial of applications and all other applications regarding Individual Permits (new or renewals) shall be considered by the Governing Board.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended________.

 

40E-63.415 No Notice General Permits.

(1) No Notice General Permits for Use of Works of the District within the C-139 Basin are hereby granted to the landowners of permittees for the surface water system operating permit for parcels of land that connect to or make use of the Works of the District within the C-139 Basin, subject to the requirements of this part IV of this Chapter 40E-63, F.A.C., including paragraphs 40E-63.444(1)(d), (g), (h) (i), (j), , (l), (m), (r), (s), (t), and (u), 40E-63.444(1)(e), (f), (g), and (i), F.A.C., and the conditions specified below:

(a) The parcel land is not part of the common facilities of a water management system as defined in subsection 40E-63.402(15), F.A.C., of water control districts or drainage districts pursuant to Chapter 298, F.S., or any other entity operating a central drainage system already permitted under Chapter 373, F.S. subject to the agricultural privilege tax, pursuant to the EPA, Section 373.4592(7)(a), F.S.; and

(b) The parcels are inactive, or add up to less than 40 acres under the same ownership. “Inactive” means land parcels that are not used for agriculture, urban, commercial, industrial or other development, as determined by the District. It also includes lands in their undeveloped native state (unless used as pastures). Lands may be determined by the District as temporarily inactive if they are not operated or are vacant due to changes in ownership or land use. The District’s determination applies only to the requirements of this part of Chapter 40E-63, F.A.C. The land is served by a properly permitted and operated surface water management system (Environmental Resource Program, ERP, or Surface Water Management Permit, SWM).

(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. Fertilizer or other soil amendments containing phosphorus are not applied within 10 feet of any pond, stream, lake, water course, or any designated wetland.

3. Spill prevention practices for nutrients are implemented; and

4. Runoff is managed in accordance with surface water or environmental resource permits, if applicable.

(2) No Notice General Permits for Use of Works of the District within the C-139 Basin granted upon adoption of this part IV of Chapter 40E-63, F.A.C., this remain effective for 5 year periods and shall be automatically renewed unless the District notifies a permittee in writing that the permit is revoked.

(3) No Notice General Permits granted upon adoption of this part of Chapter 40E-63, F.A.C., do not relieve the permittee of the responsibility to comply with all other laws or regulations applicable to the use of or discharges from the parcel. In the event the C-139 Basin is determined to be out of compliance a fourth time, in accordance with Appendix B2 of Chapter 40E-63, F.A.C., the District shall revoke the No Notice General Permit and initiate rulemaking pursuant to Chapter 120, F.S., to revise this Chapter to ensure that the objectives of the EFA, Section 373.4592(4)(f)5., F.S., are met. Notification shall be by certified mail.

(4) Landowners meeting the foregoing shall not be obligated to submit a permit application or application fee.

(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 subsection 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 Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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-63.460, F.A.C. In order to begin BMP implementation immediately, the proposed plan for the initial BMPs shall be submitted by the permittee for written pre-approval from the District. This will allow the permittee to initiate implementation of the approved BMP plan prior to the completion of the administrative review and processing of the permit application.

(2) The approved BMP Plan shall be fully implemented within 90 days of the effective date of this part of Chapter 40E-63, F.A.C., unless the District authorizes a different implementation schedule. A Level I BMP Plan, as described in Appendices B1 and B2, shall be submitted to the District for approval within 30 days of the effective date of Part IV of this Chapter. Failure to provide a complete Level I plan within the 30 days shall not justify a corresponding delay for full implementation of the plan and will result in enforcement action pursuant to Rule 40E-63.470, F.A.C.

(3) In order to assure that the schedule mandated by subsection 40E-63.420(2), F.A.C., is met, the District may pre-approve a BMP Plan by letter, as long as the BMP Plan is complete and meets the criteria required under Rule 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. The District shall make a final determination on the Level I BMP Plan within 10 days of receipt of a complete plan.

(4) Implementation of Level I BMPs shall be initiated within 45 days and fully implemented within 90 days of the effective date of Part IV of this Chapter.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended________.

 

40E-63.430 General Permit Applications.

(1) A General Permit is required for parcels of land that connect to or make use of the Works of the District within the C-139 Basin that have not been issued a waiver pursuant to Rule 40E-63.410, F.A.C., or do not qualify for a No Notice General Permit pursuant to Rule 40E-63.415, F.A.C. Applications for Works of the District Permits, including General Permits pursuant to Rule 40E-63.440, F.A.C., and Individual Permits pursuant to Rule 40E-63.450, F.A.C., shall be submitted to the District within 45 days of the effective date of this Part IV of Chapter 40E-63, F.A.C., and shall be made using Form 1045.

(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 (incorporated by reference in subsection 40E-63.404(1), F.A.C.), or the equivalent electronic permitting application (e-permitting) tool, with all required supporting documentation.

(3)(2) Landowners, lessees and/or operators of a parcel or parcels may submit applications for General Permits as an applicant or co-applicant. Works of the District Permits. A lessee or operator may submit an application provided the lease (or equivalent contract) is for no less than five years, is in writing, and reasonable assurance is provided that the lessee/operator has the legal and financial capability of implementing and complying with the BMP Plan and other permit conditions.

(4)(3) All General or Individual Permit applications shall include the following:

(a) Date, signature, title and authority of the person, persons or entity submitting the application;

(b) For each applicant, information that demonstrates that the applicant possesses the legal and financial authority and ability to carry out all acts necessary to implement the terms and conditions of the permit, including, at a minimum:

1. For individual applicants, recorded deeds, contracts, leases, property tax record of ownership, or other evidence of ownership or authority are required.

2. For co-applicants, a description of the legally responsible entity or cooperating group of entities together with copies of documents demonstrating its legal authority, such as enabling legislation and articles of incorporation; completed and signed Certificates of Participation indicating the individual applicant’s consent and intent to participate in the General Permit; and written contracts or agreements with co-applicants indicating their consent and agreement to comply with the permit and specifying the terms of participation, where applicable.

(c)(a) A clear delineation of the boundaries area and acreage contained in the permit application, including a map which is correlated with a list of all parcel owners and corresponding county tax identification numbers, and operators or lessees associated with the acreage contained in the application. The delineation should also include drainage features depicting the permit basin, general direction of flow, inflow points, and discharge points off-site for delineation of permit basins, as defined in subsection 40E-63.402(10), F.A.C., operators, and lessees with tributary discharge water and county tax identification numbers.

(b) Copies of existing contracts, agreements, or equivalent regarding use or operation of the property or control structure between the entity responsible for operation and the parcel owners included in the application, where applicable.

(d)(c) A list of all existing and pending District permits for the application area and their status.

(e) A BMP Plan.

(f) For General Permit applications encompassing water management systems or portions thereof that serve multiple entities, an executed legally binding written agreement or contract between the owners, operators, and or users of the system, as applicable, regarding construction, use, maintenance and operational criteria, and BMP implementation requirements for the system shall be provided. Specifically, the written agreement or contract shall identify the entities and their authority and responsibility for use and operation of the system (e.g. a shared canal or off-site discharge structure).

(d) A completed copy of Form 1045, entitled “Application for a C-139 Basin Works of the District Permit”.

(e) All of the information necessary to satisfy the Basis for Issuance, including information as specified in the application Form 1045 and the Guidebook.

(5)(4) If activities proposed in the permit application submitted pursuant to Part IV of this part of Chapter 40E-63, F.A.C., rule will affect water management systems or activities regulated pursuant to other rules (e.g. Surface Water Management, Environmental Resource Permit, Consumptive Water Use, Well Construction, Right-of-Way, or Lake Okeechobee SWIM), then the Applicant shall also submit applications for new permits or modifications to existing permits, as appropriate.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended__________.

 

40E-63.432 Permit Modifications, Transfers and Renewals.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended 6-20-07, Repealed________.

 

40E-63.434 Permit Duration.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Amended 6-20-07, Repealed________.

 

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 (incorporated by reference 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.

(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-63.404(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-63.460(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) An education and training program for the management and operation staff responsible for implementing and monitoring the approved BMP Plan. The training may be provided in-house or arranged by the permittee or other educational resources.

(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-63.404(2), F.A.C.), on the form entitled “C-139 Basin Annual Report – Certification of BMP Implementation”.

(6) A proposed implementation schedule. Except for BMP Plans required immediately upon amendment of this part of Chapter 40E-63, F.A.C., as described in Rule 40E-63.420, F.A.C., implementation of new BMPs shall be completed within 90 days after the date of District approval. Alternate implementation schedules may be considered by the District if the applicant demonstrates through reasonable assurance that an equivalent level of phosphorus source control is provided.

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New ________,

 

See 40E-63.442, F.A.C.

 

40E-63.436 Permit Application Processing Fees.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

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 (4), (5), and (6), F.A.C., that the alternative contains the equivalent or greater phosphorus reduction effectiveness of a 35-point BMP plan. 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) A description of the best management practice rationale for the BMP selected;

(b) A detailed explanation of the proposed BMP;

(c) A schedule for implementation of the BMP;

(d) Sample documentation of the BMP implementation, how the BMP will be verified;

(e) Technical basis for the reduction effectiveness of the proposed BMP. The applicant may be required to demonstrate effectiveness through a proposed monitoring program or through representative technical references. If approved, the District will determine the appropriate BMP equivalent point credit consistent with Appendix B1 (incorporated by reference in subsection 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 using the standard approach.

The site assessment shall evaluate phosphorus imports and transport in discharges; current BMPs and implementation methods; other practices not covered under BMPs (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) Alternative BMP Demonstration Project. If a demonstration project is proposed to meet the BMP implementation requirements of subsection 40E-63.435(1) or (2), F.A.C., a proposed project scope of work shall be submitted for District review and approval based on the following criteria:

(a) The scope of eligible projects shall include, at a minimum, the demonstration or research hypothesis, a description of implementation, the technical basis and scientific methods that will be employed, the performance indicators that will be measured such as water quality, water quantity, soil testing, or as applicable, the progress and final reports that will be produced to verify progress and results, and a schedule that details the beginning date, critical milestones and ending date of the project.

(b) The 35 BMP equivalent point requirement shall be met in the permit basin where the project is proposed. The proposed demonstration shall account for no more than 20 BMP equivalent points as approved by the District. The remaining 15 BMP equivalent points shall include 10 BMP equivalent points in the nutrient control practices category and 5 BMP equivalent points in the water management practices category.

(c) The proposed BMP equivalent points for the demonstration project will only be considered for the period of project implementation, the permit basin where the project is located, and for the crops or land uses to which the project applies.

(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-63.404(3), F.A.C.). Additional BMP equivalent points 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 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 373.085, 373.4592 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 40-63E.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 Target, as described in Appendix B2 (incorporated by reference in subsection 40E-63.404(4), F.A.C.). The District will review whether the proposed loading reduction levels would be conducive to meeting the Target 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 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), 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 for failure to implement the early initiatives, however, the District will deem the permittee unable to claim a deferral if:

1. Reporting and verification requirements for the voluntary early implementation projects are not met, as determined by the District.

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 373.085, 373.4592 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-63.404(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-63.460(3) or (4), 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) Applications to modify an existing permit shall contain the same information required in a new application, as applicable, and shall identify the portion of the existing authorization for which the modification is requested.

(b) Modifications to existing permits are acknowledged and approved by letter with an accompanying Permit Review Summary (Staff Report) from the District through correspondence to the permittee.

(3) Transfers: A permittee shall notify the District within 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) A permit may only be transferred if the land practice, total acreage, and approved BMP Plan remain the same and the permittee is in compliance with all conditions of the permit.

(b) All conditions of the existing permit will remain applicable to the new permittee.

(c) Any other changes or additions will require a permit modification in accordance with subsection 40E-63.439(2), F.A.C.

(4) Renewal: A permittee shall apply for a permit renewal prior to the expiration of an existing permit, subject to the following requirements and limitations:

(a) Applications for renewals must contain all information required for new applications and will be evaluated based on the criteria in effect at the time the application is filed.

(b) If the permittee allows the permit to expire prior to applying for a permit renewal, an application for a new permit shall be required.

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New ________.

 

See Rule 40E-63.432, F.A.C.

 

40E-63.440 General Permit Application Requirements in the C-139 Basin.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.441 Permit Duration.

Pursuant to the EFA, Section 373.4592(4)(f)2., F.S., permit renewals issued pursuant to this part 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) The permit is automatically inactivated at the expiration of the permittee’s lease or contract (where the permittee is the lessee or equivalent) that authorized the permittee to control operations (and permit compliance) on the permitted land; or

(2) The permit is otherwise modified by enforcement actions pursuant to subsection 40E-63.460(1), F.A.C.; or

(3) The permit is otherwise renewed pursuant to subsection 40E-63.439(2), F.A.C.; or

(4) A permit application for a new permit or a permit renewal has been filed by a permittee on a timely basis prior to the expiration date of a previously-issued permit, and the District has not completed review of the application, in which case the previously-issued permit will remain effective until final agency action is taken by the District on the application; or

(5) A new permit has been issued within one year of the permit renewal cycle begin date. In that case, the new permit duration will be greater than five years, but no more than six years to align its expiration date with the expiration date of the basin’s five-year renewal cycle.

(6) Permit duration will not be affected by permit transfers or modifications of any kind.

(7) All previously issued permits shall expire 90 days after the effective date of this part of Chapter 40E-63, F.A.C., unless a permit application for renewal or for a new permit has been received by the District within that period.

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New ________.

 

See Rule 40E-63.434, F.A.C.

 

40E-63.442 Basis for Issuance of General Permits in the C-139 Basin.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.443 Permit Application Processing Fees.

(1) The following permit application processing fees shall be paid to the District at the time the permit applications are filed.

Permit Type	New	Renewal	Modification	Letter Modification	Transfer
General Permit	$250	$250	$100	$0	$100

(2) Without the proper fee, the application shall be considered incomplete and will result in denial of the application if the fee is not paid upon notice.

(3) Notwithstanding the table above, no fees shall be charged for clerical modifications that do not alter the approved BMP Plan or monitoring requirements of the underlying permit.

(4) In cases where more than one permit application type applies, the application shall be submitted as the permit type with the higher application fee.

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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) All of the following standard limiting conditions (a) through (u) shall be attached to all General Permits:

(a) The permittee shall implement all elements and requirements of the approved BMP Plan according to schedule, including documentation of implementation, operation, and rationale where applicable. At no time shall BMP implementation be less than the required 35 BMP equivalent points using the criteria in Rule 40E-63.435 or 40E-63.437, F.A.C., as applicable 15 points in the Level I Plan requirements.

(b) Each applicant to which a General Permit is issued is a co-permittee and is jointly and severally liable for implementing the requirements of the General Permit. This includes non-compliance with permit conditions caused by lessees or operators that are not co-permittees.

(c)(b) 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. The first report is due February 1, 2003, and annually thereafter. Failure to submit the report by February 1, will result in onsite verification of BMP implementation by District staff and or 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 provide documentation of BMP implementation by April 30 of each year may will 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 Individual Permit and shall be subject to enforcement under subsection 40E-63.460(1) 40E-63.470(1), F.A.C. The new permit will include special conditions requiring that documentation certifying BMP implementation is submitted quarterly, at a minimum.

(d)(c) The permittee shall allow District staff and designated agents reasonable access to the permitted property at any time to verify compliance with the rule and the permit. Since it is not possible to predict precisely when discharges will occur or problems will arise resulting in the need for a site visit, the District may not be able to provide a lengthy period of notice to the designated person in advance of a visit. However, at a minimum, the District will provide notice at least 24 hours prior to a site visit for verifying best management practice installation and operation.

(d) The permittee shall notify the District in writing within 30 days of any:

1. Significant change in land practice, as described in subsection 40E-63.402(6), F.A.C.; or

2. Change in the approved BMP Plan for the permitted parcel; or

3. Transfer, sale or conveyance of land or works described in the permit.

(e) The permittee shall notify the District in writing within 30 days after any changes in permit basin acreage.

(f) The permittee shall notify the District in writing within 90 days of any transfer, sale or conveyance of land or works described in the permit.

(g)(e) This permit does not relieve the permittee of the responsibility to comply with all other laws or regulations applicable to the use of or discharges from the parcel.

(h)(f) The permit does not convey to the permittee any property right or any rights or privileges other than those specified in the permit.

(i)(g) This permit does not relieve the permittee from liability from harm or injury to human health or welfare; animal, plant or aquatic life; or property.

(j)(h) The surface water management and monitoring system must be effectively operated and maintained in accordance with the Environmental Resource/Surface Water Management Permit. Any changes in drainage, land use or operations not identified previously that could affect the surface water management system BMP Plan or water quality of the discharge, must be reported in writing in advance to the District to determine if an Environmental Resource/Surface Water Management Permit is required.

(k) If not previously authorized by a District permit under this part of Chapter 40E-63, F.A.C., the permittee shall submit a permit modification application 30 days in advance of conducting any:

1. Changes in BMPs; or

2. Changes in land practice affecting the approved BMP Plan; or

3. Changes in water management that may affect the Sub-basin Monitoring Program (e.g., resulting from completing Environmental Resource/Surface Water Management Permit authorized water management system changes).

(l)(i) The permitted discharge shall not otherwise be harmful, or adversely affect proper use and operation of the Works of the District.

(m)(j) 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-63.404(4), F.A.C.).

(n) Legal entities or groups of cooperating owners or operators (co-permittees) responsible for implementing a General Permit shall remain legally and financially capable of performing their responsibilities required by the permits issued pursuant to this section.

(o) Within 30 days of issuance of the permit, as of the effective date of the amendments to this part of Chapter 40E-63, F.A.C., for lessees that are not co-applicants, the permittee shall provide written certification that the lessees have received a copy of the permit and agree to implement the BMP Plan and be bound by the terms and conditions of the permit, including any amendments thereto.

(p) For leases executed after the effective date of the amendments to this part of Chapter 40E-63, F.A.C. (in which the lessee is not a co-applicant), within 30 days of its date of execution, the permittee shall provide written certification by the lessee or a copy of the lease indicating the lessee’s agreement to implement the BMP Plan and be bound by the terms and conditions of the permit, including any amendments thereto.

(q)(2) If In the event that the District determines that any permittee participant 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, Permit holder, the landowner, or both, as applicable pursuant to Rules 40E-63.450 and 40E-63.460 and 40E-63.470, F.A.C. If additional specific conditions become necessary, the District shall also require the Permit holder to apply for an Individual Permit.

(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. 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 of receiving water and adjacent lands regulated by Chapter 373, F.S.

(t) The permitted discharge shall not cause adverse environmental impacts.

(u) The permitted discharge shall be consistent with State Water Policy, Chapter 62-40, F.A.C.

(2) General permits shall be subject to other reasonable conditions as necessary to assure that proposed BMP and Permit Discharge Monitoring Plans meet the conditions for issuance in Rules 40E-63.435, 40E-63.437 and 40E-63.462, F.A.C.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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 (incorporated by reference 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.

(2) If the C-139 Basin is out of compliance, water quality improvement activities will be required for permit basins 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 (incorporated by reference in subsection 40E-63.404(7), F.A.C.).

(b) District approved early BMPs, as described in paragraph 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, 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 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, 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-63.460(6), F.A.C., providing deferral to the lands where the determination applies, or

(e) The performance measure determination includes the permit basin UAL from either of the two water years immediately following a water year for which the permit basin was required to implement water quality improvement activities.

(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 subsection 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 subsection 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 results (Appendix B2, incorporated by reference in subsection 40E-63.404(4), F.A.C.), and the sub-basin and permit basin performance results (Appendix B3.1, incorporated by reference in subsection 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 subsection 40E-63.404(8), F.A.C.). These actions are described in subsection 40E-63.460(2), F.A.C.

(7) In accordance with Appendix B2 (incorporated by reference in subsection 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 373.085, 373.4592 FS. History–New ________.

 

See Rule 40E-63.460, F.A.C.

 

40E-63.450 Individual Permit Application Requirements in the C-139 Basin.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.452 Basis for Issuance of Individual Permits in the C-139 Basin.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.454 Limiting Conditions for Individual Permits in the C-139 Basin.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.456 Optional Discharge Monitoring Program.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.458 Limiting Conditions for the Optional Discharge Monitoring Program.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

40E-63.460 C-139 Basin Compliance.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed________.

 

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-63.450, 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_________.

(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-63.460(3), F.A.C., or a verification plan in accordance with subsection 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 subsections 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, 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) 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-63.404(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:

1. The expected or assumed range of percent total phosphorus removal efficiency 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 indentified 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 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) 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 efficiency. 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, F.A.C., and subsections 40E-63.460(2) and (3), F.A.C., to either:

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

b. 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 subsections 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-63.404(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 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 subsection 40E-63.404(8), F.A.C.).

Rulemaking Authority 373.044, 373.083, 373.085, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New _______.

 

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-63.449(1)(r), subsection 40E-63.460(4) or 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-63.460(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-63.404(4), F.A.C.); and

(b) Compliance with permit conditions in accordance with Rule 40E-63.444, F.A.C.

(2) To implement a discharge monitoring program, permittees must submit a permit application with the following information:

(a) An acceptable discharge (quantity and quality) monitoring plan that provides reasonable assurance that annual water discharge and total phosphorus load are accurately documented.

(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 subsection 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) A schedule to install equipment and implement the monitoring plan no later than 30 days after issuance of the permit; and

(d) Other site specific information required by Appendix B3.1 (incorporated by reference in subsection 40E-63.404(7), F.A.C.).

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 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 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) The discharge (quantity and quality) monitoring plan shall provide reasonable assurance that the annual water discharge and total phosphorus load are accurately documented.

(2) The approved discharge monitoring plan shall be incorporated by reference and made part of this permit;

(3) The equipment shall be installed and the monitoring shall start no later than 30 days after the permit issuance date. Within 60 days after the permit issuance date, the permittee shall contact the District to verify that installation of the monitoring equipment is complete and to schedule an inspection;

(4) The permittee shall implement the discharge monitoring plan in accordance with the permit and shall submit to the District any proposed modification of the plan by submitting an application to modify the permit for review and approval prior to implementation.

(5) The location of sample collection shall be such that water sampled is representative of all water from the monitored area that discharges off-site.

(6) All water quality sample collection, preservation, handling, transport, and chain-of-custody documentation shall be conducted in accordance with an approved Comprehensive Quality Assurance Plan as specified in the approved discharge monitoring plan. All laboratory analyses shall be conducted by a laboratory with proper certification for the specified parameter (e.g. phosphorus);

(7) In the event that water quality automatic sampling equipment becomes inoperable for any reason, grab samples shall be temporarily taken on a daily basis during flow events and composited for a maximum of 14 days for total phosphorus analysis. Reasonable effort must be made to render the automatic sampling equipment operable within 14 days;

(8) Monitoring conditions may be reduced or adjusted upon submission of data and/or studies that provide the basis for such, reasonably demonstrating that equivalent data will be obtained with the reduction or adjustment in monitoring;

(9) The District will provide at least one week notice to the permittee of the intent to conduct a quality assurance field audit of the sampling collection procedures;

(10) The water quantity and quality data shall be submitted to the District no later than 60 days from the last day of the sampling period being reported. Water quantity and quality data shall be submitted to the District in an approved electronic format on a monthly basis.

(11) All flow quantity discharged from the property shall be calculated using a method proposed by a Florida-registered Professional Engineer in a Calibration Report approved by the District. A Calibration Report shall be required for each pump, culvert or other discharge structure. The report shall also quantified uncontrolled off-site discharges, such as overland sheet flow. 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. Any modification to the approved calibration shall require an application to modify the existing permit.

(12) During periods of off-site discharge, water quality composite samples shall be collected by automatic sampler, preserved, and the composite sample shall be: a) removed from the sample collection site and delivered to the laboratory no later than 21 days from the time the first individual sample was taken and, b) analyzed for total phosphorus no later than 28 days from the time the first individual sample was taken.

Rulemaking Authority 373.044, 373.083, 373.085, 373.086, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New _______.

 

See Rule 40E-63.458, F.A.C.

 

40E-63.470 C-139 Basin Works of the District Permit Compliance.

Rulemaking Specific Authority 373.044, 373.083, 373.085, 373.113, 373.4592 FS. Law Implemented 373.085, 373.4592 FS. History–New 1-24-02, Repealed_______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Pamela Wade, Division Director, Everglades Regulation Division

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 10, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: March 12, 2010