The Department of Environmental Protection gives notice of its intent to grant a variance under section 403.201 of the Florida Statutes (F.S.) from the provisions of Rules 62 4.242(2)(a)(2)(b), 62-302.700(1), 40C-4.301(1)(e) and 62-302.530(31), ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NO: RULE TITLE
62-4.242: Antidegradation Permitting Requirements; Outstanding Florida Waters; Outstanding National Resource Waters; Equitable Abatement

NOTICE IS HEREBY GIVEN THAT on July 22, 2008, the Florida Department of Environmental Protection has issued an order.

The Department of Environmental Protection gives notice of its intent to grant a variance under Section 403.201, Florida Statutes (F.S.) from the provisions of paragraphs 62-4.242(2)(a), (2)(b), 62-302.700(1), 40C-4.301(1)(e) and subsection 62-302.530(31), Florida Administrative Code (F.A.C.), to the U.S. Army Corps of Engineers, (File No. 0180701-008-BV) to establish a maximum allowable turbidity level of 20 Nephelometric Turbidity Units (NTU) above background upriver of Brickell Bridge; a minimum allowable level for Dissolved Oxygen of 2.0 mg/L upriver of Brickell Bridge; a maximum allowable turbidity level of 15 NTUs above background downriver of Brickell Bridge, not to exceed an absolute turbidity level of 20 NTUs; and a minimum allowable level for Dissolved Oxygen of 3.0 mg/L downriver of Brickell Bridge. This temporary variance shall only be valid during the construction activities authorized in Environmental Resource Permit No. 0180701-004 EI (current expiration date of September 23, 2009), including subsequent modifications, and following issuance of the associated minor permit modification (File No. 0180701-007-EM). The maintenance dredging activity is located in the Miami River and extends into Biscayne Bay, while material processing activities are adjacent to the Miami River, Miami-Dade County, Sections 27, 28, 33, 34, 35 Township 53 South, Range 41 East and Section 38 Township 54 South, Range 41 East, Class III Waters, within the Biscayne Bay Aquatic Preserve, Outstanding Florida Waters. 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 Florida Department of Environmental Protection, Bureau of Beaches and Coastal Systems, 5050 West Tennessee Street, Building B, Tallahassee, Florida 32304-9201.

A person whose substantial interests are affected by the Department’s action may petition for an administrative 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 at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.

Mediation under Section 120.573, Florida Statutes, 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.

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 judge upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.

In accordance with subsections 28-106.111(2) and subparagraph 62-110.106(3)(a)(1), 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), 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.

In accordance with Rule 28-106.301, F.A.C., 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; (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.

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, F.A.C. 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.

This action is final and effective on the date filed with the Clerk of the Department unless a petition is filed in accordance with the above. Upon the timely filing of a petition this order will not be effective until further order of the Department.

This variance constitutes an order of the Department. The applicant has the right to seek judicial review of the order under Section 120.68, F.S., 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, 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 final order is filed with the Clerk of the Department.

A copy of the Order may be obtained by contacting: Bureau of Beaches and Coastal Systems, 3900 Commonwealth Boulevard, Mail Station 300, Tallahassee, Florida 32399.