DEPARTMENT OF ENVIRONMENTAL PROTECTION
NOTICE OF INTENT TO ENTER INTO A BINDING ECOSYTEM MANAGEMENT AGREEMENT
The Department of Environmental Protection gives notice of its intent to enter into a binding Ecosystem Management Agreement (hereafter “Palm Beach Island Beach Management Agreement” or “BMA”) under Sections 403.0752 and 161.101, Florida Statutes (F.S.), and Title 62, Florida Administrative Code (F.A.C.), to authorize beach nourishment, inlet sand bypassing, groin rehabilitation and removal, and dune restoration. The activities authorized in the BMA will take place on Palm Beach Island, Palm Beach County. The Department has reviewed and authorizes in the BMA Area maintenance dredging of the Lake Worth Inlet with placement on downdrift beaches, construction of an improved sand transfer plant at Lake Worth Inlet, repair and removal of groins throughout the cell, nourishment of the Mid-Town project, nourishment of the Phipps Ocean Park project, and dune restoration. Such projects must receive Individual Project Approval (IPA) prior to commencement of construction. The BMA sets forth the procedures and criteria to be followed by the Department and the BMA participants for submittal, review and approval for individual projects within the BMA area. Specifically, for individual project approvals under the BMA, if the individual project application is determined by the Department to be consistent with the terms of the BMA, the Department will issue an IPA letter authorizing the individual project. Public notice of the IPAs shall be accomplished in the same manner as for permit applications as provided in Rule 62B-49.005, F.A.C., for inwater activities and Rule 62-110.106, F.A.C., for dune restoration activities.
The applicants have provided affirmative reasonable assurance that the BMA and the activities described therein will comply with the provisions of Chapter 161, Chapter 253, Part IV Chapter 373, and Chapter 403 F.S., and Chapters 62B-33, 62B-41, 62B-49, 62-4 and 62-330, F.A.C., and that net ecosystem benefits are provided. The Department has determined that there will be no violations of water quality standards pursuant to Section 373.414(1), F.S., and that the activities covered by the BMA, with the attendant net ecosystem benefits, are not contrary to the public interest.
The Department’s file on this matter, including a copy of the proposed BMA, is available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Eastern Standard Time, Monday through Friday, except legal holidays, at the Florida Department of Environmental Protection, 2600 Blair Stone Road, Tallahassee, Florida 32399 or at http://www.dep.state.fl.us/beaches/pb-bma/index.htm . Telephone: (850)499-7708.
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 of the Florida Statutes as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to enter into a binding ecosystem management agreement automatically becomes only proposed agency action on the application(s), 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. Because an administrative hearing may result in the reversal or substantial modification of this action, the applicant is advised not to commence activities under the BMA until the deadlines noted below for filing a petition for an administrative hearing have expired and until the BMA has been executed and delivered.
After approval of the BMA becomes final as provided in the preceding paragraph, the BMA itself will no longer be subject to challenge under the provisions of Sections 120.569 and 120.57, F.S., when individual project approvals are issued by the Department. For individual project approvals under the BMA, if the individual project application is determined by the Department to comply with the terms of the BMA, the Department will issue a letter of individual project approval authorizing the individual project. Public notice of the individual project approvals shall be accomplished in the same manner as for permit applications as provided in Rule 62B-49.005, F.A.C., for in water activities and Rule 62-110.106, F.A.C., for dune restoration activities. Any challenge to an individual project approval shall be limited to whether or not the individual project complies with the terms of the BMA and any agency action outside the approvals of the BMA taken in the IPA. Agency action previously subject to challenge or administrative review will not be subject to challenge at the time of IPA.
If a person believes his or her substantial interests are affected by the Department’s approval of the BMA, such a person may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. 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.
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.
If a timely and sufficient petition for an administrative hearing on the proposed BMA 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, F.A.C.
In accordance with Rules 28-106.111(2) and 62-110.106, F.A.C., petitions for an administrative hearing on the BMA by the applicants must be filed within 21 days of receipt of this written notice. Petitions on the BMA filed by any persons other than the applicants, and other than those entitled to written notice under Section 120.60(3), F.S., must be filed within 21 days of publication of the notice or within 21 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 on the BMA may file a petition within 21 days of receipt of such notice, regardless of the date of publication.
The petitioner shall mail a copy of the petition to the applicants 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 to approve the BMA 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, 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.
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.
Mediation is not available.
This intent to enter into a binding ecosystem management agreement with the applicants constitutes an order of the Department. Subject to the provisions of paragraph 120.68(7)(a), F.S., 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, 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 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.
