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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
OF ISSUANCE OF A MODIFICATION OF A CONSOLIDATED ENVIRONMENTAL RESOURCE
The Department of Environmental Protection has granted an Environmental Resource Permit Modification, number 36-0128502-021, to Boating Gear Center, LLC, c/o Hans Wilson & Associates, Inc., 1938 Hill Avenue, Fort Myers, FL 33901. The permit authorizes the following:
After review by staff, the proposed modifications are not expected to adversely affect water quality and will not be contrary the public interest, provided the permit is amended as follows: 1) Extend expiration date of 36-0128502-015 to January 22, 2022; 2) Removal of Specific Condition No. 37 from ERP No. 36-0128502-008 concerning travel lift usage; 3) Modify Specific Condition No. 35 from ERP No. 36-0128502-008 to coincide with the modified project description in ERP No. 36-0128502-010 concerning the reduction of total slips from 485 to 480 and the number of slips intended solely for sailboats from 40 to 35; and 4). Modify Specific Condition No. 43 from ERP No. 36-0128502-008 concerning water quality monitoring.
The activities authorized by this permit modification are located at 14030 McGregor Boulevard, Fort Myers, FL 33919, Lee County, Section 20 and 29, Township 45 South, Range 24 East, Class III Waters.
This modification is hereby granted unless a timely petition for an administrative hearing is filed under Sections 120.569 and 120.57, Florida Statutes, (F.S.), before the deadline for filing a petition. The procedures for petitioning for a hearing are set forth below.
Mediation is not available.
A person whose substantial interests are affected by the Department's action may petition or an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. The petition must contain the information set forth below an must be filed (received by the clerk) in the Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.
Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application. If a sufficient petition for an administrative hearing or request for an extension of time to file a petition is timely filed, this permit automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Accordingly, the applicant is advised not to commence construction or other activities under this permit until the deadlines noted below for filing a petition for an administrative hearing, or request for an extension of time have expired.
Under Rule 62-110.106(4), Florida Administrative Code (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, 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.
In the event that 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 Rules 28-106.111(2) and 62-110.106(3)(a)(4), F.A.C., petitions for an administrative hearing by the applicant or any of the parties listed below must be filed within 14 days of receipt of this written notice. Petitions filed by any persons 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;
(f) A statement of the specific rules and 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. 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.
The action is final and effective on the date filed with the Clerk of the Department unless a petition is filed in accordance with the above. Upon the timely filing of a petition this order will not be effective until further order of the Department.
This permit constitutes an order of the Department. 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 final order is filed with the Clerk of the Department.
March 24, 2017 17-01458L