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In the matter of a

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In the matter of a

    Charlie Crist

    Governor Florida Department of

    Jeff Kottkamp Environmental Protection Lt. Governor Marjory Stoneman Douglas Building

    3900 Commonwealth Boulevard Michael W. Sole

    Tallahassee, Florida 32399-3000 Secretary

In the matter of a DEP07-0617

    Petition for Variance by:

U.S. Department of the Navy, Petitioner Project: Key West Channel, Mixing Zone Variance

    E.M. Barham File No.: 0207625-011-EV, OGC No. 07-0148

    Environmental Director Date of Issue: June 4, 2007

    Naval Air Station Expiration Date: August 31, 2007

    P.O. Box 9001 County: Monroe

    Key West, Florida 33040-9001

    ______________________________________________________________________________

    FINAL ORDER BY THE DEPARTMENT:

    On April 20, 2007, the Department received from U.S. Department of the Navy, a Petition for Variance, pursuant to Section 403.201(1), Florida Statutes (F.S.), as authorized under Section 373.414(17), F.S., and processed pursuant to Section 62-110.104, Florida Administrative Code (F.A.C.), (the request for variance was submitted as a modification to existing Variance 0207625-008-EV). The Petitioner requested relief from Rule 62-4.244(5)(c), F.A.C., to temporarily establish a turbidity mixing zone greater than 150 meters. The expanded mixing zone will be in the shape of a rectangle that extends 300 meters beyond the channel (on each side of the channel) and 1500 meters from the dredge (inside the channel). The project is located in the Straits of Florida where it passes through the Florida Keys National Marine Sanctuary, which is classified as an Outstanding Florida Waterbody. This temporary variance shall only be valid during the construction activities authorized in Environmental Resource Permit No. 0207625-002-EM (as modified) and shall expire on August 31, 2007.

    The Department originally issued Variance No. 0207625-003-EV in conjunction with Environmental Resource Permit (ERP) No. 0207625-002-EM on August 28, 2003; however that variance expired on August 28, 2005. Subsequently, the Department issued Variance No. 0207625-008-EV to allow the petitioner to complete a dredging event to remove hurricane-shoaled material from within Cut A and the Main Shipping Channel. On April 20, 2007, the Department received an electronic request from the petitioner to modify the existing variance to include the removal of approximately 8500 additional cubic yards of hurricane-shoaled material from within Cuts B & C. The subject dredging activities were previously authorized in the above referenced ERP which expires June 17, 2013. All dredged material shall be deposited outside of State waters, in an ocean disposal site approximately 14 nautical miles south of Key West. This variance for an expanded mixing zone shall only apply to the work within State waters.

    “More Protection, Less Process”

    www.dep.state.fl.us

Notice of Final Order

    Key West Channel, Mixing Zone Variance

    File No. 0207625-011-EV, OGC No. 07-0148

    Page 2 of 3

     After reviewing the Petition for Variance, Department staff concluded that it satisfied the requirements and criteria set forth in Section 403.201, F.S., and Rule 62-110, F.A.C.

     The Intent to Grant Variance, issued by the Department on May 1, 2007, notified the

    Petitioner of the Department’s proposed agency action and advised them of their right to a hearing pursuant to Sections 120.569 and 120.57, F.S. On May 6, 2007, notice was given in The

    Key West Citizen and on May 11, 2007, notice was given in the Florida Administrative Weekly

    informing the public of the Department’s intended action and offering an opportunity for hearing pursuant to Sections 120.569 and 120.57, F.S. Copies of the notices are attached.

     The Petitioner and interested parties having been advised of their rights under Chapter 120, F.S., and having failed or declined to file a Petition pursuant to Sections 120.569 and 120.57, F.S., are hereby deemed to have waived those rights. Acceptance of the variance constitutes notice and agreement that the Department will periodically review this variance for compliance, including site inspections where applicable, and may initiate enforcement action for violation of the conditions and requirements thereof. It is therefore:

     ORDERED by the State of Florida, Department of Environmental Protection, that the Petition of the U.S. Department of the Navy requesting a variance be and is hereby granted,

    subject to the conditions specified by Department staff in Environmental Resource Permit No. 0207625-002-EM (as modified).

    The variance shall also be subject to the following conditions:

    1. Given good cause by either party, the Chief of the Bureau of Beaches & Coastal

    Systems may alter the terms and conditions of the variance.

    2. The variance is temporary and shall expire on August 31, 2007.

     Any Party to this Order has the right to seek judicial review of the Order Pursuant to Section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of the 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 this Order is filed with the clerk of the Department.

Notice of Final Order

    Key West Channel, Mixing Zone Variance

    File No. 0207625-011-EV, OGC No. 07-0148

    Page 3 of 3

    DONE AND ORDERED this _______ day of ________________, 2007, in Tallahassee, Florida.

     STATE OF FLORIDA DEPARTMENT

     OF ENVIRONMENTAL PROTECTION

     _________________________________

    Michael R. Barnett, P.E., Chief

    Bureau of Beaches and Coastal Systems

Enclosures:

    Notice Key West Citizen

    Notice Florida Administrative Weekly

Copies furnished to:

    Bernard Appleman, DEP, Office of General Counsel (electronic) Lea Crandall, DEP, Office of General Counsel (electronic) Vladimir Kosmynin, DEP BBCS (electronic)

    Gus Rios, DEP South District, Key West (electronic) Mary Duncan, FWCC, BPSM (electronic)

    Robbin Trindell, FWCC, BPSM (electronic)

    Kent Edwards, NOAA FKNMS, Key West (electronic)

    Brock Durig, Department of the Navy, Key West (electronic) File

    FILING AND ACKNOWLEDGMENT

    FILED, on this date, pursuant to Section 120.52, Florida Statutes, with the designated

    Department Clerk, receipt of which is hereby acknowledged.

    ____________________________________________________

    Deputy Clerk Date

    Please see PDF version for attachment.

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