NOTICE OF INTENT TO GRANT VARIANCE
The Department of Environmental Protection gives notice of its intent to grant a variance under Sections 403.201 and 373.414(17), Florida Statutes (F.S.), from the provisions of paragraph 62-4.244(5)(c), F.A.C., to the U.S. Department of Navy, Naval Air Station, P. O. Box 9001, Key West, Florida 33040-90017601, to establish a temporary mixing zone for turbidity greater than 150 meters within an area of Class III Waters located in the Straits of Florida, where it passes through the Florida Keys National Marine Sanctuary, which is classified as an Outstanding Florida Waterbody (The request for variance was submitted as a modification to Variance No 0207625-008-EV).
The existing ambient water quality within the temporary mixing zone located in Outstanding Florida Waters shall not be lowered as a result of the dredging activities for a period greater than 30 days, pursuant to Rule 62-4.242, F.A.C. The U.S. Department of the Navy shall abide by the conditions of Environmental Resource Permit 0207625-002-EM (as modified) as specified in the subject variance.
There is no practical means known for adequate control of elevated turbidity given the exceptional ecological nature of the receiving waters. Therefore, the Department intends to issue a variance, pursuant to Section 403.201(1)(a), F.S., for a temporary mixing zone for turbidity greater than 150 meters within an area of Class III Waters within an Outstanding Florida Waterbody for a period not to exceed thirty days.
The Departments file (file no. 0207625-011-EV) on this matter is available for public inspection during normal business hours, 8:00 a.m. 5:00 p.m., Monday through Friday, except legal holidays, at the Florida Department of Environmental Protection, Bureau of Beaches and Coastal Systems, 5050 West Tennessee Street, Building B, Tallahassee, Florida, Telephone (850)413-7765, Attention Donna Kendall.
Under this intent to issue, this variance is hereby granted subject to the applicants compliance with any requirement to publish notice of this intent in a newspaper of general circulation and to provide proof of such publication in accordance with Section 50.051, Florida Statutes. This action is final and effective on the date filed with the Clerk of the Department unless a sufficient petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, Florida Statutes as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to issue automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Therefore, on the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. When proof of publication is provided, if required by this intent, and if a sufficient petition is not timely filed, the variance will be issued as a ministerial action. Because an administrative hearing may result in the reversal or substantial modification of this action, the applicant is advised not to commence construction or other activities until the deadlines noted below for filing a petition for an administrative hearing or request for an extension of time have expired and until the variance has been executed and delivered. Mediation is not available.
A person whose substantial interests are affected by the Departments action may petition for an administrative proceeding (hearing) under 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, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.
Under subsection 62-110.106(4), Florida Administrative Code, a person whose substantial interests are affected by the Departments 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,
If 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. Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, Florida Administrative Code.
In accordance with subsection 28-106.111(2) and subparagraph 62-110.106(3)(a)4., 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), Florida Statutes, 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), Florida Statutes, 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 persons right to request an administrative determination (hearing) under Sections 120.569 and 120.57, Florida Statutes.
A petition that disputes the material facts on which the Departments action is based must contain the following information:
(a) The name and address of each agency affected and each agencys file or identification number, if known;
(b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioners representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioners 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 agencys proposed action;
(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agencys proposed action; 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 agencys proposed action.
A petition that does not dispute the material facts on which the Departments 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 of the Florida Administrative Code. Under paragraphs 120.569(2)(c) and (d) of the Florida Statutes, 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 issue a variance constitutes an order of the Department. Subject to the provisions of Section 120.68(7)(a), 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.
