of its December 2, 2014, intent to grant a variance under Section 403.201, F.S., from the provisions of Rules 62-4.244(5)(c), 62-4.242(2)(a)2.b., 62-302.700(1), and 62-330.302(1)(c), F.A.C, to the U.S. Army Corps of Engineers, Mobile District (Corps)...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

The Department of Environmental Protection’s Northwest District hereby gives notice of its December 2, 2014, intent to grant a variance under Section 403.201, F.S., from the provisions of paragraph 62-4.244(5)(c), sub-subparagraph 62-4.242(2)(a)2.b., subsection 62-302.700(1), and paragraph 62-330.302(1)(c), F.A.C, to the U.S. Army Corps of Engineers, Mobile District (Corps), P.O. Box 2288, Mobile, AL 36628-0001, (File No. 23-0274349-008-EV). The variance is associated with the Corps’ environmental resource permit application (File No. 23-0274349-007-EI) for the proposed dredging of the Port St. Joe federal navigation channel in Port St. Joe, Gulf County, Florida. This variance will allow the Corps to conduct the following activities associated with the ERP application if the permit is issued: establish a temporary mixing zone greater than 150 meters within Outstanding Florida Waters (OFWs), to extend the permitted dredge period beyond 30 days within an OFW, to allow turbidity levels to exceed background levels at the edge of the mixing zone within an OFW, and to allow dredging within or adjacent to Class II waters that are approved for shellfish harvesting. The variance is being granted because the Corps has demonstrated that there is no practical means known or available for the adequate control of the pollution. The Department’s 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 the Department of Environmental Protection, Northwest District, 160 W Government Street, Suite 308, Pensacola, Florida 32502, telephone: [phone] or online at http://depedms.dep.state.fl.us/Oculus/servlet/login.

This action is final and effective on the date filed with the Agency Clerk of the Department unless a petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, F.S, before the deadline for filing a petition. On the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. Because the administrative hearing process is designed to formulate agency action, the hearing process may result in a modification of the agency action or even denial of the application.

A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, Florida Statutes. Pursuant to Rule 28-106.201, F.A.C., a petition for administrative hearing must contain the following information: (a) The name and address of each agency affected and each agency’s file or identification number, if known; (b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s 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 agency’s proposed action; and (f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s 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 agency’s proposed action. 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.

The petition must be filed (received by the Agency Clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000. Also, a copy of the petition must be mailed to the applicant at the address indicated above at the time of filing.

Petitions for administrative hearing 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 failure to file a petition within the appropriate time period shall constitute a waiver of that person’s right to request an administrative hearing under Sections 120.560 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention in a proceeding initiated by another party will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.105, F.A.C.

Under subsections 28-106.111(3) and 62-110.106(4), F.A.C., a person whose substantial interests are affected by the Department’s 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 the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, before the applicable deadline for filing a petition for administrative hearing. 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.

Mediation under Section 120.573 of the F. S., is not available.

Once the decision becomes final, any party to this action 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 the 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.

A copy of the Order or additional information may be obtained by contacting: Heather Mason, Northwest District, [phone] or [e-mail].