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 sub-subparagraph 62-343.040(2)(c)2.a., Florida Administrative Code (F.A.C.), to Larry Lipman, (FFD-MEPD) located off Corkscrew Road, Estero, Florida 33928, File No.: 0291030-002-EV and OGC No.: 09-3814. The project area is comprised of approximately 5,209 ± acres, of which 3,290 ± acres are currently used for agricultural purposes, 117 ± acres are used for agricultural related roads and drainage and 1,566 ± acres are wetlands and other surface waters of the state. As part of the onsite operations, approximately 142 miles of agricultural ditches were created. The petitioner is requesting a variance from sub-subparagraph 62-343.040(2)(c)2.a., F.A.C., requiring field located boundary points for wetlands and other surface waters delineated using the approximate delineation methodology in subparagraph 62-343.040(2)(c)2., F.A.C. Due to the mostly linear shape and treeless nature of these ditches, the placement of field located boundary points to verify the accuracy of the aerial approximated delineation is not necessary. The variance shall allow the petitioner to delineate wetlands and other surface waters within agricultural ditches identified by the Department without meeting the above referenced criteria for formal determinations set forth in sub-subparagraph 62-343.040(2)(c)2.a., F.A.C. These Department identified agricultural ditches shall have sufficient aerial signatures to allow delineation from aerial photography without the aid of field located boundary points every 1,000 feet. All other wetland and other surface water boundaries shall be delineated using either subparagraph 62-343.040(2)(c)1. or 62-343.040(2)(c)2., F.A.C., without deviation from the respective criteria. If the Department determines that any portion of the subject area is not accurately represented by the rectified aerial photographs, including ditches that are irregular in shape or obscure on rectified aerials, the petitioner shall survey and stake the affected area as provided in paragraph 62-340(2)(c), F.A.C.

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 Department of Environmental Protection, Office of Submerged Lands and Environmental Resources, 2600 Blair Stone Road, Room 524, Tallahassee, Florida 32399.

Under this intent to grant, this variance is hereby granted subject to the applicant’s compliance with any requirement in this intent 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, F.S. 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, F.S., as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to grant 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 granted 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 Department’s action 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, 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: Office of General Counsel of the Department, 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 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 officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.

In accordance with subsection 28-106.111(2) and paragraph 62-110.106(3)(a), 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.

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; and (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 intent to grant a variance constitutes an order of the Department. Subject to the provisions of Section 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, Florida Rules of Appellate Procedure, with: 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. 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 the 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 the order is filed with the Clerk of the Department.