40E-63.145. Compliance and Enforcement of Individual Permits in the EAA Basin

(1) The District shall begin reviewing compliance with permit application requirements by parcel owners in the EAA Basin no later than September 1, 1992. Parcel owners who are not in compliance with permit application due dates are subject to immediate enforcement action by the District, as described in subsection (6) below.

(2) The District shall begin reviewing compliance with monitoring plan requirements by parcel owners in the EAA Basin no later than October 1, 1993, and compliance with Best Management Practice implementation, operation and rationale by parcel owners in the EAA Basin no later than January 1, 1995. All permittees who are not in compliance with their approved monitoring plan or BMP Plan requirements are subject to notification by the District. All permittees who receive notice from the District must submit to the District within 10 working days a plan and schedule for achieving compliance within 60 days after transmittal of the notice. Permittees who do not comply with this requirement are subject to enforcement action as outlined in subsection (6) below.

(3)(a) The District shall begin collecting monitoring data from the EAA Basin on January 1, 1995, for the purpose of determining compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3 (EAA Basin Compliance).

(b) When the District periodically evaluates the monitoring data collected to assess the general trend in phosphorus load reduction, the evaluation shall be included in an annual report.

(c) The District shall determine whether the EAA Basin is in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3, as of April 30, 1996, and annually thereafter. The District shall attempt to make the determination and publish the results by July 1, 1996, and annually thereafter.

(d) If the EAA Basin is determined to be in compliance with the phosphorus load reduction requirement, permittees in the EAA Basin shall not be subject to compliance and enforcement action by the District in regard to achievement of the phosphorus load reduction requirement, so long as the EAA Basin remains in compliance. However, permittees are still subject to monitoring and enforcement action for failure to comply with an approved monitoring plan or BMP Plan requirements, pursuant to subsections (1) and (2) above.

(e) If the EAA Basin is determined to be not in compliance on April 30, 1996, or any subsequent year, with the phosphorus load reduction requirement calculated in accordance with Appendix A3, permittees in the EAA Basin shall be subject to the following compliance and enforcement actions:

1. The District shall determine, according to Appendix A4 (EAA Basin Farm Scale Allocation), which structures shall be required to meet a Maximum Unit Area Load (MUAL) in order to bring the EAA Basin in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3 (EAA Basin Compliance).

2. The District shall provide written notice to permittees of structures required to meet a Maximum Unit Area Load. The notice shall specify the Maximum Unit Area Load assigned to the permittee. The District shall attempt to transmit the written notices by July 1, 1996, and by July 1 of any subsequent year the EAA Basin is determined to be not in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3 (EAA Basin Compliance).

3. Permittees shall submit to the District within 45 days of transmittal of the written notice, a revised BMP Plan which proposes changes in BMPs needed to ensure that the Maximum Unit Area Load will be met. The revised plan shall include all the elements specified in subsection 40E-63.132(6), F.A.C. (Content of Application for Individual Permits in the EAA Basin), or explain why an omitted element is not relevant to evaluation of the revised Plan. The implementation schedule shall require complete installation within 6 months of District approval of the revised BMP Plan. Permittees shall make good faith efforts to provide complete revised BMP Plans. Failure to provide a complete revised BMP Plan within 45 days shall not justify a corresponding delay of the date on which a permittee is required to meet a Maximum Unit Area Load pursuant to subparagraph 40E-63.145(3)(e)6., F.A.C.

4. The District shall review and take final agency action on the revised BMP Plan within 60 days of receipt of a complete plan.

5. Permittees who fail to complete the revised BMPs according to the approved implementation schedule shall be subject to enforcement action pursuant to subsection (6) below.

6. Permittees shall be required to meet the Maximum Unit Area Load on the first April 30 occurring 24 months after the April 30 on which the EAA Basin was determined to be not in compliance with the load allocation calculated in accordance with Appendix A3 (EAA Basin Compliance).

7. If the EAA Basin does not achieve the phosphorus load reduction sufficient to bring the Basin in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3 on the April 30 occurring 24 months after the April 30 on which the EAA Basin was determined to be not in compliance, the District shall repeat the procedures specified in subparagraphs 1.-6. above, and seek whatever enforcement or corrective action is appropriate, including those set forth in subsection (6) below against permittees who failed to achieve their Maximum Unit Area Load.

(4) Applicants may elect to participate in an “Early Baseline Option,” which is described below in paragraphs (a)-(i). Participation is optional. Applicants should make the decision on whether to participate after careful evaluation of all relevant factors, including site specific data, farming practices, and personal circumstances. The compliance and enforcement actions specified in subparagraphs (3)(e)1.-7. above will not be applied to permittees who elect to participate in the Early Baseline Option, except as specifically provided below.

(a) Applicants who elect to participate in the Early Baseline Option must declare their intention to do so in the initial permit application due in 1992. In addition to the information required by Rule 40E-63.132, F.A.C. (Content of Application for Individual Permits in the EAA Basin), the application must identify soil type, include soil phosphorus test results and methods, describe crops for the last five years, indicate expected future crops, describe the automatic recording rainfall collectors to be installed at each structure discharging to a District primary canal, and identify the acreage served by each collector.

(b) Applicants who elect to participate in the Early Baseline Option must implement the required monitoring plan for water quality and quantity by January 1, 1993. The plan shall require monitoring reports to be submitted monthly and annually, beginning on February 1, 1993. The plan must be approved by the District before implementation.

(c) Applicants who elect to participate in the Early Baseline Option are encouraged to complete their permit applications promptly, so that the District can take final agency action on the entire application before January 1, 1993. However, if requested by the applicant, the District will take final agency action on the monitoring plan only in December 1992, subject to the condition that subsequent final agency action on the entire permit application may include revisions to the monitoring plan.

(d) Applicants who elect to participate in the Early Baseline Option must have the approved BMPs in place by January 1, 1994.

(e) Permits issued to applicants who elect to participate in the Early Baseline Option shall have special limiting conditions reflecting the monitoring and BMP deadlines and any other requirements necessary to implement the Early Baseline Option.

(f) The District will calculate the Early Baseline for each permittee who has elected to participate. The Early Baseline is the total phosphorus load for each participating permittee against which future reductions will be compared. The District shall attempt to transmit the Early Baseline results to the permittee in writing by July 1, 1994. The results shall identify any permitted structures excluded from further participation in the Early Baseline Option pursuant to subparagraph 2. below.

1. The Early Baseline calculation shall be based on data collected from May 1, 1993 to April 30, 1994.

2. The District shall evaluate the data reported by each permittee who participates in the Early Baseline Option to determine whether the reported load for each permitted structure is reasonable. The determination shall be based on an analysis of outliers, an analysis of consistency with existing total phosphorus load data, evaluation of data from rainfall automatic collectors, and other relevant information. Any permitted structure for which the Early Baseline load is determined to be unreasonable shall be excluded from further participation in the Early Baseline Option, unless the permittee can demonstrate to the District, by a preponderance of evidence, that the reported loads are accurate and unbiased.

3. The District shall consider requests presented by permittees under subsection 40E-63.101(4), F.A.C., to calculate the baseline to reflect implementation of BMPs prior to implementation of the plan for monitoring water quantity and quality. Such requests should be accompanied by adequate supporting evidence, for example data from the area subject to the request and from a similar area on which BMPs have not been implemented regarding soil type, depth of muck, crop type, historical usage, drainage system, water quality and water quantity.

(g) If the EAA Basin is determined to be in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3, as of April 30, 1996, or annually thereafter, permittees who elected to participate in the Early Baseline Option shall not be subject to compliance and enforcement action by the District in regard to achievement of the phosphorus load limitation, so long as the EAA Basin remains in compliance. However, permittees are still subject to monitoring and enforcement action for failure to comply with the requirements of an approved monitoring plan or BMP Plan, pursuant to subsection (2) above.

(h) If the EAA Basin is determined to be not in compliance as of April 30, 1996, or any subsequent year, with the allocation calculated in accordance with Appendix A3, permittees who elected to participate in the Early Baseline Option shall be subject to the following compliance and enforcement actions:

1. The District shall determine whether the permittee has reduced the Early Baseline load from permitted structures by 25%, adjusted for hydrological variability. The District shall provide written notice of the determination to permittees. The District shall attempt to transmit the written notices by July 1, 1996, and by July 1 of any subsequent year the EAA Basin is found to be not in compliance with the phosphorus load reduction requirement calculated in accordance with Appendix A3 (EAA Basin Compliance).

2. Permittees who have reduced the Early Baseline load by 25% are in compliance with the goal of this chapter and shall not be subject to further compliance and enforcement action by the District in regard to reduction of phosphorus load, so long as the 25% reduction is maintained, unless this chapter is amended to provide otherwise.

3. Permittees who have not reduced the Early Baseline load by 25% shall submit to the District, within 45 days of transmittal of the written notice, a revised BMP Plan which proposes changes in BMPs needed to ensure that the 25% reduction will be achieved. The revised Plan shall include all the elements specified in subsection 40E-63.132(6), F.A.C. (Content of Application for Individual Permits in the EAA Basin), except for elements not relevant to evaluation of the revised Plan. The revised Plan shall contain an explanation of why any omitted elements are not relevant. The implementation schedule shall require complete installation of revised BMPs within 6 months of District approval of the revised BMP Plan. Permittees shall make good faith efforts to provide complete revised BMP Plans. Permittees shall be required to meet the 25% reduction the next time the EAA Basin is determined to be not in compliance with the load allocation calculated in accordance with Appendix A3 (EAA Basin Compliance). Failure to provide a complete revised BMP Plan within 45 days shall not justify a corresponding delay of the date on which a permittee is required to meet the 25% reduction.

(i) If the EAA Basin is determined to be not in compliance for a subsequent year, permittees who elected to participate in the Early Baseline Option shall be required to reduce the Early Baseline load by 25%. Any permittee who has not reduced the Early Baseline load by 25% is subject to the Compliance and Enforcement actions set forth in subparagraphs (3)(e)2.-7. above, including compliance with the MUAL and legal enforcement proceedings.

(5) In applying the requirements of this Chapter after the EAA has been determined to be not in compliance with the allocation calculated in accordance with Appendix A3, the District shall determine whether to accept an alternative method or level of phosphorus reduction for a particular permittee based on the demonstrated site-specific impracticability of achieving the required reduction of phosphorus in accordance with an approved Best Management Plan, if requested by a permittee.

(a) The Permittee shall have the burden of demonstrating that compliance with the BMP or phosphorus reduction requirements is impracticable at the permittee’s site or sites of operation. Any such request for a determination of impracticability shall:

1. Specify the facts showing that the required reduction of phosphorus cannot be reasonably accomplished at the site or sites in question, and

2. Set forth the alternative methods of reducing the loading of phosphorus that are proposed or have been considered, the reasons for choosing any such alternatives, and

3. The amount of reduction of phosphorus that reasonably could be expected to result at the site.

(b) Such requests shall apply only to the portion of a site to which the showing of impracticability applies.

(c) The District shall send a copy of each such request and correspondence concerning it to the Department.

(d) By order of the Governing Board, the District shall grant the request and any related permit modifications if the permittee makes the required showing and the request (including the proposed alternative requirements and other special permit conditions imposed by the District as necessary) would not conflict with the intent of Chapter 373, Part IV, F.S., or with the intent of this chapter.

(6) 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, including:

(a) Enforcement orders issued pursuant to Chapter 373, F.S., and rules adopted thereunder;

(b) Court actions for injunctive or other appropriate relief pursuant to Sections 373.044 and 373.136, F.S.;

(c) Court actions to recover civil penalties, including fines, pursuant to Section 373.129, F.S.;

(d) Warrants for arrest pursuant to Section 373.603, F.S.;

(e) Administrative enforcement orders pursuant to Section 373.119, F.S.

An outline of the compliance and enforcement procedures for the EAA Basin is provided in Appendix A5 which is incorporated by reference.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.016, 373.085, 373.086, 373.119, 373.129, 373.136, 373.451, 373.453, 373.4592, 373.603 FS. History–New 1-22-92, Amended 7-7-92, 8-25-96, 11-11-98, 6-7-99, 10-31-99, 7-3-01.