DEPARTMENT OF ENVIRONMENTAL PROTECTION
RULE NO.:RULE TITLE:
62-330.302Additional Conditions for Issuance of Individual and Conceptual Approval Permits
Notice of Order Granting Variance
The Department of Environmental Protection gives notice of its intent to grant a variance under Section 403.201, F.S., from the provisions of Rule 62-330.302(1)(c), F.A.C., and section 10.2.5 of the Environmental Resource Permit Applicant’s Handbook Volume I, to the Bay County Board of County Commissioners, Attn. Keith Bryant, Public Works Director, 840 West 11th Street, Panama City, Florida, 32404. The file has been assigned File No. 03-033381-002-EV and OGC No. 15-0611. The variance will allow dredging of an access channel from East Bay to Richard Bayou, within a Class II waters classified by the Florida Department of Agriculture and Consumer Services as “conditionally approved” for shellfish harvesting, to a depth of -5 MLW, located in East Bay, near Richard Bayou, Panama City, 32404, in Section 07, Township 5S, Range 12W in Bay County, at lat. 30˚03’40.42” /long -85˚29’30.87”. The variance is being granted because the petitioner has demonstrated the variance is necessary to relieve or prevent hardship.
A copy of the Notice of Intent may be obtained by contacting: Scott Casey, Department of Environmental Protection, Suite 308, 160 W. Government Street, Pensacola, Florida 32502; telephone 850-595-0574; scott.casey@dep.state.fl.us during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays. The Notice of Intent can also be viewed at the following link: http://depedms.dep.state.fl.us:80/Oculus/servlet/shell?command=hitlist&[freeText=]&[folderName=]&[profile=Administrative%2BConstruction_Operation+Mgmt%2BDiscovery_Compliance%2BEnforcement_Legal%2BFiscal%2BPermitting_Authorization%2BPlans+and+Specifications%2BSampling]&[creator=]&[entityType=any]&[createdDateTo=]&[catalog=23]&[searchBy=profile]&[sortBy=Document+Date]&[createdDate=]&{District=_EQ_NWD}&{County=_EQ_BAY}&{Facility-Site+ID=_EQ_ERP_336381}.
The Department’s proposed agency action shall become 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, any e-mail address, any facsimile number, and telephone number of the petitioner, if the petitioner is not represented by an attorney or a qualified representative; 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 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 the petitioner contends warrant reversal or modification of the agency’s proposed action; (f) A statement of the specific rules or statutes 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 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 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. However, under section 120.60(3), F.S., 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 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 Rule 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.
Mediation is not available in this proceeding.
Once this decision becomes final, the applicant, or any party within the meaning of Section 373.114(1)(a) or 373.4275, F.S., may also seek appellate review of this order before the Land and Water Adjudicatory Commission under Section 373.114(1) or 373.4275, F.S. Requests for review before the 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 this order is filed with the Clerk of the Department.
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, 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.
