NOTICE OF INTENT TO ISSUE VARIANCE

The Department of Environmental Protection gives notice of its intent to issue a variance under Section 403.201, Florida Statutes (F.S.), from the provisions of subsection 62‑302.530(31), Florida Administrative Code (F.A.C.), to the South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, Florida 33406, File Number 0192879-004-EV, for the minimum criteria for dissolved oxygen under Rule 62-302.530, F.A.C., for discharges from the Ten Mile Creek Water Preserve Area Project (FDEP Permit No. 0192879-002).

Subsection 62-302.530(31), F.A.C., requires that dissolved oxygen levels in Class III waters not be less than 5.0 mg/L. The variance is intended to provide relief from the 5 mg/L dissolved oxygen criteria at the project outflow. In the variance the dissolved oxygen criterion shall consist of an annual mean and two seasonal lower limits based on seasonal and historic background conditions found within Ten Mile Creek. Compliance with the criterion shall be determined at the project outflow where no greater than ten percent (10%) of the values may be below their respective seasonal lower limits.

The Department's file 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, Water Quality Standards and Special Projects Program, 2600 Blair Stone Road, Mail Station 3560, Tallahassee, Florida 32399-2400, Telephone: (850)245-8348.

The Department’s proposed agency action shall become final unless a timely petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, Florida Statutes, before the deadline for filing petition. The procedure for petitioning for a hearing is set forth below.

A person whose substantial interests are affected by the Department’s proposed agency 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) in the Office of General Counsel of the Department, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000. Petitions filed by any persons other than those entitled to written notice under Section 120.60(3), Florida Statutes, must be filed within fourteen days of publication of the notice or receipt of the written notice, whichever occurs first. 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 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, Florida Statutes, 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, Florida Administrative Code.

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; 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.

Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Department’s final action may be different from the position taken by it in this notice. Persons whose substantial interests will be affected by any such final decision of the Department have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above.

Mediation is not available in this proceeding.

Any party to this order has the right to seek judicial review of it under Section 120.68, Florida Statutes, by filing 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, Mail Station 35, 3900 Commonwealth Boulevard, 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 thirty days after this order if filed with the clerk of the Department.