The Department of Environmental Protection gives notice of its intent to grant a variance under Section 403.201, F.S., from the provisions of paragraph 62-4.244(5)(c), F.A.C., to Florida Gas Transmission Company, LLC, 5444 Westheimer Road, Houston, Texas 77056, (File No. 43-0293015-002) to allow for turbidity up to 1,000 NTUs above natural background for a period of more than 12 consecutive hours in any day, and turbidity shall not exceed 3,000 NTUs above natural background for a period of more than 3 consecutive hours in any day (Groups 1 and 2), no more than 1,500 NTUs entering Jurisdictional Waters of the State (Group 3 wetlands) within the counties of Bay, Calhoun, Citrus, Dade, Desoto, Escambia, Gadsden, Highlands, Hillsborough, Jefferson, Lafayette, Leon, Levy, Manatee, Okaloosa, Okeechobee, Pasco, Santa Rosa, Taylor, Walton, and Washington.
This variance is sought in conjunction with the activities necessary to construct the project as described in Environmental Resource Permit application No.: 43-0293015-001 for construction of a statewide natural gas pipeline system and with a request for water quality variance application No.: 43-0293015-003, which shall allow for temporary mixing zones. Of 147 surface water and wetland crossings, 35 surface waters and 3 ditch systems are classified as Group 1 crossings, 81 streams, 1 ditch system, 2 ponds, and 18 wetlands are classified as Group 2 crossings, and 7 wetlands are classified as Group 3 crossings. Group 1 crossings generally consist of waterbodies with open water widths greater than 35-feet and where stream flows are too great to cross by flume or dam and pump construction method, Group 2 crossings generally consist of waterbodies containing sand, silt, clay and/or other organic substrates with open water widths between 10-feet and 35-feet, or wetlands with undefined channels and flowing water, and Group 3 crossings generally consisting of large saturated wetland systems. The Department issues the Notice of Intent to grant the variance, based upon the following findings: (a) It is not financially feasible or technically possible to directionally drill under all open water and wetland crossings; (b) Performance-based best management practices (BMPs) to avoid or minimize turbidity problems in all surface water and wetland crossings shall be utilized; (c) BMPs are not expected to adequately control turbidity in 147 surface waters and wetland systems within the allowable 150-meter mixing zone of the 1,302 surface water and wetland proposed to be crossed in the Environmental Resource Permit application No.: 43-0293015-001; and (d) The elevated turbidity levels at the end of the expanded mixing zones will be temporary in nature and are not expected to cause long-term adverse affects to biological resources in the project area. Upon issuance of the final order, the variance shall be subject to but not limited to the following conditions: (a) This variance is valid only if an ERP (File No.: 43-0293015-001) is issued for this project, and is subject to any and all conditions of the permit, and the granting of this variance does not guarantee the issuance of the permit; (b) Given good cause by either party, the Secretary or designee may alter the terms and conditions of the variance; (c) This variance applies to the activities conducted within the approved 147 surface water and wetland crossings in File No.: 43-0293015-002; (d) As authorized in the water quality variance application No.: 43-0293015-003, which shall allow for temporary mixing zones, turbidity levels at the end of the 800-meter mixing zones shall not exceed 3,000 NTUs above natural background levels for more than 3 consecutive hours after construction and no more than 1,000 NTUs above natural background levels for more than 12 consecutive hours after construction in the above referenced waterbodies and wetland crossings; (e) Appropriate performance-based BMPs shall be utilized to minimize increases in turbidity and control erosion when crossing the above referenced surface waters and wetlands; and (f) This variance shall be subject to all monitoring conditions required by Environmental Resource Permit No.: 43-0293015-001 and Variance No.: 43-0293015-003, and daily logs for the variance surface waters and wetlands shall be presented as a separate section in the monthly reports submitted to the Department.
The Departments file on this matter is available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at: Department of Environmental Protection, Attention: Benny Luedike, 400 North Congress Avenue, Suite 200, West Palm Beach, FL 33401, (561)681-6646. Additionally, maps that were submitted in the variance application are available for review at the Departments website: http://www.dep.state.fl.us/ southeast/erp/erpmain.htm. The maps will be available on the Departments website for a minimum period of ninety days after the date of this notice.
A person whose substantial interests are affected by the Departments action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, Florida Statutes. The petition must contain the information set forth below and must be filed (received by the clerk) in the Office of General Counsel of the Department, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.
Mediation under Section 120.573 of the F. S., is not available.
Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the agency action or even a denial of the application. If a sufficient petition for an administrative hearing or request for an extension of time to file a petition is timely filed, this agency action automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Accordingly, the applicant is advised not to commence construction or other activities in accordance with this variance until the deadlines noted below for filing a petition for an administrative hearing, or request for an extension of time has expired.
Under subsections 28-106.111(3) and 62-110.106(4), F.A.C., a person whose substantial interests are affected by the Departments action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with: Office of General Counsel of the Department, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon. If a request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable neglect.
In the event that a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interests will be affected by the outcome of the administrative process have the right to petition to intervene in the proceeding. Any intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.
In accordance with subsection 28-106.111(2) and paragraph 62-110.106(3)(a), (4), F.A.C., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under Section 120.60(3), F.S., must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.
Under Section 120.60(3), F.S., however, any person who has asked the Department for notice of agency action may file a petition within 14 days of receipt of such notice, regardless of the date of publication.
The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing. The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that persons right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S.
A petition that disputes the material facts on which the Departments action is based must contain the following information: (a) The name and address of each agency affected and each agencys file or identification number, if known; (b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioners representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioners substantial interests are or will be affected by the agency determination; (c) A statement of when and how the petitioner received notice of the agency decision; (d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate; (e) A concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agencys proposed action; and (f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agencys proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and (g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agencys proposed action.
A petition that does not dispute the material facts on which the Departments action is based shall state that no such facts are in dispute and otherwise shall contain the same information as set forth above, as required by Rule 28-106.301, F.A.C. Under Sections 120.569(2)(c) and (d), F.S., a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed.
This action is final and effective on the date filed with the Clerk of the Department unless a petition is filed in accordance with the above. Upon the timely filing of a petition this order will not be effective until further order of the Department.
The variance constitutes an order of the Department. The applicant has the right to seek judicial review of the order under Section 120.68, Florida Statutes, by the filing of a notice of appeal under Rule 9.110, Florida Rules of Appellate Procedure, with: Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399‑3000; and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within 30 days from the date when the final order is filed with the Clerk of the Department.
