The Department of Environmental Protection (Department) gives notice of its intent to grant a variance (No. 0284086-003 EV-VE, OGC No. 08-2200) to Mr. Franz Rosinus, Old Corkscrew Plantation, LLC, 26811 South Bay Drive, Suite 350, Bonita Springs, Florida 34134, under paragraph 403.201(1)(a), Florida Statutes (F.S.), from the provisions of subsection 62-302.530(30), Florida Administrative Code (F.A.C.), which provides minimum standards for dissolved oxygen levels in the surface waters of the state. This variance will apply to dissolved oxygen levels in the hypolimnion (deeper portions) of manmade lakes proposed to be constructed at a new limestone mine in Lee County under Environmental Resource Permit application No. 0284086-001.

The project involves the construction of ten quarry pits located in sections 2, 3, 10, 11, 14, and 15, Township 46 South, Range 27 East, Section 35, Township 45 South, Range 27 East. The quarry pits will be constructed across property lines such that the pits will have more than one property owner. During the reclamation of the project area, uplands will be contoured to restore sheet flow from the manmade lakes to adjacent wetlands during storms less than the 25-year, 24-hour storm. The proposed manmade lakes will be subject to the water quality standards provided in Rule 62-302.530, F.A.C.

On August 21, 2008, Old Corkscrew Plantation applied to the Department for a variance from the minimum standards for dissolved oxygen authorized by subsection 63-302.530(30), F.A.C., which requires a minimum level of 5.0 mg/L dissolved oxygen in the surface waters of the state.

The dissolved oxygen levels in the hypolimnion of the manmade lakes are expected to drop below the mandatory minimum of 5.0 mg/L at times. Stratification and the associated reduction of dissolved oxygen in the hypolimnion are natural phenomena in deep-water bodies, especially during warmer parts of the year. This condition is well documented in the limnological literature and recognized in paragraph 373.414(6)(a), F.S., which states, “[t]he Legislature recognizes that some mining activities that may occur in waters of the state must leave a deep pit as part of the reclamation. Such deep pits may not meet the established water quality standard for dissolved oxygen below the surficial layers. Where such mining activities otherwise meet the permitting criteria contained in this section, such activities may be eligible for a variance from the established water quality standard for dissolved oxygen within the lower layers of the reclaimed pit.”

A variance of the minimum standards provided in Rule 62-302.530, F.A.C., for dissolved oxygen, within the hypolimnion of the proposed manmade lakes is not expected to result in any on-site or off-site impacts. Oxygen levels in the upper layers of the manmade lakes are expected to meet the requirements of Rule 62-302.530, F.A.C., and be adequate to support healthy fish populations. There is no practicable means known or available to achieve the required dissolved oxygen levels within the manmade lake. Therefore, the Department intends to grant a permanent variance pursuant to paragraph 403.201(1)(a), F.S., for the dissolved oxygen within the hypolimnion layer of the proposed manmade lakes.

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, Bureau of Mining and Minerals Regulation, 2051 East Paul Dirac Drive, Tallahassee, Florida 32310, Telephone: (850)488-8217.

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 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 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 Section 403.201, F.S., 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 subsection 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 subsection 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; (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 paragraphs 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 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.