DEPARTMENT OF ENVIRONMENTAL PROTECTION
CONSOLIDATED NOTICE OF INTENT TO GRANT VARIANCE
AND ISSUE AN ENVIRONMENTAL RESOURCE PERMIT AND
SOVEREIGN SUBMERGED LANDS AUTHORIZATION
The Department of Environmental Protection (Department) gives notice of its intent to issue, to the U.S. Army Corps of Engineers, Mobile District, Attn: Michael F. Malsom, 109 Saint Joseph Street, Mobile, Alabama 36602, as agent for and on behalf of BMCS Brian P. Guarino, Commander, U.S. Coast Guard Station Pensacola: (1) a consolidated environmental resource permit and sovereign submerged lands authorization (File no. 17-0164063-006-EI) to remove excess sand from a 3.5 acre shoreline area where sand has accreted and place it along a 6.2 acre shoreline area where sand has eroded, and to re-route and fill a 630 foot long open man-made ditch at the U.S. Coast Guard Station Pensacola in Escambia County, Florida; and (2) a variance (File no. 17-0164063-005-EV) under Section 403.201, F.S., from the provisions of Paragraph 62-4.244(5)(c), F.A.C. to allow a mixing zone for turbidity greater than 150 meters, and from the provisions of the Antidegradation Sub-subparagraph 62-4.242(2)(a)2.b., F.A.C., to allow turbidity levels at the edge of the mixing zone within Outstanding Florida Waters (OFWs) to exceed background levels within Pensacola Bay, a Class III OFW. The application for an environmental resource permit was received on August 24, 2012. The petition for variance was received on August 29, 2012. The Department intends to issue the environmental resource permit and sovereign submerged lands authorization because, with the application of general and limiting specific conditions of the permit, the Department has reasonable assurance the project, as proposed, fully meets the environmental resource permitting requirements of Chapter 62-346, F.A.C., and sovereign submerged lands provisions in Rule 18-21, F.A.C., and will not harm the environment. The Department intends to grant the proposed variance, because there are no practicable means known or available for the adequate control of the turbidity 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, 160 W. Government Street, Pensacola, Florida 32502, telephone: (850)595-8300.
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 of the 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.
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 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. 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), F.A.C., and Section 403.201, F.S., 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.
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; and (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; (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. 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 intent to grant a variance, and intent to issue a consolidated environmental resource permit and sovereign submerged lands authorization each constitute an order of the Department. Subject to the provisions of paragraph 120.68(7)(a), of the Florida Statutes, which may require a remand for an administrative hearing, the applicant has the right to seek judicial review of the order under Section 120.68 of the Florida Statutes, 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 order is filed with the Clerk of the Department. The applicant, or any party within the meaning of section 373.114(1)(a) or 373.4275 of the Florida Statutes, may also seek appellate review of the intent to issue the consolidated environmental resource permit and sovereign submerged lands authorization before the Florida Land and Water Adjudicatory Commission under section 373.114(1) or 373.4275 of the Florida Statutes. Requests for review before the Florida Land and Water Adjudicatory Commission must be filed with the Secretary of the Commission and served on the Department within 20 days from the date when the order is filed with the Clerk of the Department.
