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

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NO.:RULE TITLE:

62-4.242:Antidegradation Permitting Requirements; Outstanding Florida Waters; Outstanding National Resource Waters

62-4.244:Mixing Zones: Surface Waters

The Department of Environmental Protection hereby 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), Florida Administrative Code (F.A.C.), and from sub-subparagraph 62-4.242(2)(a)2.b. and subsection 62-302.700(1), F.A.C., to the U.S. Army Corps of Engineers (Corps). The file has been assigned (File No. 0129277-018-BV). The variance will temporarily allow an expanded turbidity mixing zone that extends 600 meters downcurrent from the dredge for work adjacent to the existing federal channel in the Outstanding Florida Waters (OFWs) of the Timucuan Ecological and Historic Preserve and the Nassau River – St. Johns River Marshes Aquatic Preserve. The variance will also temporarily establish a maximum allowable turbidity level of 6 Nephelometric Turbidity Units (NTUs) above background for work within the OFWs at the edge of the mixing zone. This temporary variance shall only be valid during the construction activities authorized in Permit No. 0129277-017-BI for the Jacksonville Harbor Federal Channel Expansion located in Duval County, and shall expire when the permit expires. The variance is being granted because the petitioner has demonstrated there is no practicable means known or available for the adequate control of the pollution involved. 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, Beaches, Inlets and Ports Program, 2600 Blair Stone Road, Tallahassee, Florida 32399, or at the following website: ftp://ftp.dep.state.fl.us/pub/ENV-PRMT/duval/pending/0129277-017-BI%20Jacksonville%20Harbor%20Expansion/.

This action is final and effective on the date filed with the 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 final 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, F.S. Pursuant to Rule 28-106.201, F.A.C., a petition for an 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; (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.

The petition 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. Also, a copy of the petition shall be mailed to the applicant at the address indicated above at the time of filing.

Petitions for an administrative hearing must be filed within 21 days of publication of the notice or within 21 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 21 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 120.569 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 28-106.205, F.A.C.

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 for filing a petition for an 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 is not available in this proceeding.

Once this decision becomes final, any party to this action has the right to seek judicial review pursuant to Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS 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 this action is filed with the Clerk of the Department.

A copy of the Order or additional information may be obtained by contacting Beaches, Inlets and Ports Program, 2600 Blair Stone Road, Tallahassee, Florida 32399, or at the following website: ftp://ftp.dep.state.fl.us/pub/ENV-PRMT/duval/pending/0129277-017-BI%20Jacksonville%20Harbor%20Expansion/.