variance (File No. 0128852-026-EV) to U.S. Army Corps of Engineers, Mobile District, and the Bay County Tourist Development Council, from Rule 62-4.244(5)(c), Florida Administrative Code (F.A.C.), to allow a temporary mixing zone of 1,000 meters ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Division of Beaches and Shores

NOTICE IS HEREBY GIVEN THAT on February 15, 2006, the Bureau of Beaches and Coastal Systems, received a petition for variance (File No. 0128852-026-EV) to U.S. Army Corps of Engineers, Mobile District, and the Bay County Tourist Development Council, from paragraph 62-4.244(5)(c), Florida Administrative Code (F.A.C.), to allow a temporary mixing zone of 1,000 meters from the limits of Borrow Areas 5c and 11, which are within an area of Class III Waters of the Gulf of Mexico, and from Rule 62-302.700, F.A.C., to establish a maximum allowable turbidity level of 2 NTUs above background for work within the St. Andrews Bay Aquatic Preserve. The variance is associated with the Bay County Beach Restoration project (File No. 0128852-001-JC). The activity is located in Bay County, Sections 21, 22, 23, Township 4 South, Range 15 West, Gulf of Mexico Class III Waters, St. Andrews Aquatic Preserve, and Outstanding Florida Waters. A person whose substantial interests are affected by the Department's proposed action may petition for an administrative hearing in accordance with 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 at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.

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 variance or even a denial of the application. Under subsection 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. 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.

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 judge 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 subparagraph 62-110.106(3)(a)1., 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 person’s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S.

In accordance with Rule 28-106.201, F.A.C., a petition that disputes the material facts on which the Department’s action is based 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; (f) A statement of the specific rules or statutes that 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.

A petition that does not dispute the material facts on which the Department’s 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 intent to grant variance constitutes an order of the Department. The applicant has the right to seek judicial review of the order under Section 120.68, F.S., by the filing of a notice of appeal under rule 9.110 of the 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 Petition for Variance or Waiver may be obtained by contacting: Matthew Mask, Department of Environmental Protection, Bureau of Beaches and Coastal Systems, 5050 West Tennessee Street, Building B, Tallahassee, Florida 32304-9201, [phone] or by e-mail at [e-mail].