Department of Environmental Protection, Departmental

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Notice of Intent to Grant Variance Under 403.201 F.S.

The State of Florida 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 the Department of the Army, Jacksonville District Corps of Engineers, P. O. Box 4970, Jacksonville, Florida 32231-0019, (File No. EV-0272791-004) to allow a temporary mixing zone greater than 150-meters. The variance shall allow temporary mixing zones of 1,500-meters (4,921 feet) in the C-37 Canal, Class III surface waters, between Lake Hatchineha and Lake Kissimmee within Osceola and Polk counties. This variance is sought in conjunction with the activities necessary to construct the project as described in Environmental Resource Permit No. EM-0272791-002 for dredging in the C-37 Canal to accomplish hydrologic restoration and long-term environmental enhancement and restoration of approximately 14,000 acres, including approximately 7,236 acres of former littoral wetlands in the vicinity of the Kissimmee Chain of Lakes. The Department issues the Notice of Intent to grant the variance, based upon the following findings: (a) There is no practicable means known or available for the adequate control of turbidity while allowing for 24/7 navigation in the C-37 Canal during maintenance dredge operations; (b) Several performance-based best management practices (BMPs) will be utilized to avoid or minimize turbidity problems during the maintenance dredging of the C-37 Canal, including but not limited to a C-shaped turbidity curtain surrounding the dredge and/or double turbidity barriers; (c) During the maintenance dredging of the C-37 Canal, as described in the Environmental Resource Permit No. EM-0272791-002, BMPs are not expected to adequately control turbidity in the C-37 Canal within the allowable 150-meter mixing zone; (d) The elevated turbidity levels within 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.

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, Attention: Dianne K. Hughes, 400 North Congress Avenue, Suite 200, West Palm Beach, FL 33401, Telephone: [phone].

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 filing of a petition means that the Department’s final action may be different from the position taken by it in this notice.

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 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. The failure to file a petition 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., 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.

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, M.S. 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.