FDEP: Midnight Pass Intent

7/27/2019 FDEP: Midnight Pass Intent

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Florida Department of

Environmental ProtectionMarjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Charlie Crist

Governor

Jeff KottkampLt. Governor

Michael W. Sole

Secretary

More Protection, Less Process

www.dep.state.fl.us

In the Matter of an

Application for Permit/Water Quality Certification,

and Authorization to Use Sovereign Submerged Lands by:

APPLICANT:

Sarasota County Board of County

Commissioners2817 Cattlemen Road

Sarasota, FL 34232

AGENT:

Karyn M. Erickson, P.E.

Erickson Consulting Engineers, Inc.1819 Main Street, Suite 402

Sarasota, FL 34236

PROJECT NAME:

Midnight Pass Opening

File No. 0241136-001-JCVariance File No. 0241136-002-EV

Sarasota County

______________________________________________________________________________

CONSOLIDATED NOTICE OF DENIAL

JOINT COASTAL PERMIT, VARIANCE AND AUTHORIZATION

TO USE SOVEREIGN SUBMERGED LANDS

The Department of Environmental Protection gives consolidated notice of denial of:

(a) a joint coastal permit under Chapter 161 and Part IV of Chapter 373, FloridaStatutes (F.S.), and Title 62, Florida Administrative Code (F.A.C.), for the activity described

below. Denial of the joint coastal permit also constitutes denial of certification of compliancewith state water quality standards pursuant to Section 401 of the Clean Water Act, 33 UnitedStates Code (U.S.C.) 1341; and

(b) a letter of consent to use sovereign submerged lands for the proposed dredging

and beach fill, under Article X, Section 11 of the Florida Constitution, Chapter 253, F.S., Title

18, F.A.C., and the policies of the Board of Trustees, as described below;and

(c) a variance from the provisions of Rule 62-4.244(5)(c), F.A.C., to establish a

temporary mixing zone greater than 150 meters within an area of Class III Waters of the Gulf of

Mexico.


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Notice of Consolidated Intent to Deny

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This consolidated denial of the joint coastal permit and the authorization to use sovereign

submerged lands also constitutes a finding of inconsistency with Florida's Coastal Zone

Management Program, as required by Section 307 of the Coastal Zone Management Act.

This consolidated notice of denial is based on the reasons stated below.

I. DESCRIPTION OF THE PROPOSED ACTIVITY

The Applicant, Sarasota County, applied on November 29, 2004, to the Department of

Environmental Protection for a joint coastal permit/water quality certification and authorization

to use sovereign submerged lands owned by the Board of Trustees of the Internal ImprovementTrust Fund (Board of Trustees) to perform the following activities.

Sarasota County proposes to open a tidal inlet, with an interior sand trap, by excavating a3,150-foot channel connecting the Gulf Intracoastal Waterway and the Gulf of Mexico in

Sarasota County. The location of the proposed inlet is near the location of a former unstable

inlet (known as Midnight Pass) that closed in 1983. Proposed depths would be -10 feet NGVDadjacent to the Gulf Intracoastal Waterway (GIWW), -11 feet NGVD in the sand trap and

adjacent channel, and -14 feet NGVD at the seaward location of the proposed channel in the Gulfof Mexico. The top of channel widths would be approximately 240 feet near the GIWW, 530

feet through the interior sand trap and adjacent channel, 330 feet through the barrier island, and

280 feet in the Gulf of Mexico.

In addition to opening the inlet, the Applicant proposes to dredge an access channelconnecting the Turtle Beach boat ramp to the proposed inlet channel at the site of the proposed

sand trap. This access channel is proposed to be a maximum dredge depth of -7.0 feet NGVDand a maximum adjusted top channel width of 272 feet. The sediments to be dredged from the

Turtle Beach Access Channel (approximately 63,450 cubic yards) are of an unknown quality.

Therefore, the Applicant did not request the disposal of these sediments to be included in thisapplication, and intends to apply for a separate permit to dispose of this dredged material at a

later date, once the sediment quality is known.

The proposed project also includes the temporary creation of a 6-acre sediment

containment area, in which silty material dredged to create the Midnight Pass channel would be

dewatered by gravity separation. This containment area would be built by excavating sand duneswithin and immediately to the south of the proposed inlet alignment.

Approximately 327,260 cubic yards of sediment would be excavated during the dredging

of the Midnight Pass Channel and sand trap. Of this volume:


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239,890 cubic yards would be placed on the adjacent beaches of Siesta Key and

Casey Key, between DEP reference monuments R-71 and R-78, R-79 and R-81.5,

and R-84 and R-89; 18,000 cubic yards would be used to fill a portion of the old Little Sarasota Bay

navigation channel prior to mitigative seagrass planting;

63,770 cubic yards would be placed in the temporary sediment containment area for

dewatering, sorting and future determination of use; and

5,600 cubic yards would be placed in an unidentified upland disposal site.

Direct impacts from the proposed initial dredging of the Midnight Pass Channel and

Turtle Beach Access Channel would include approximately 3.34 acres of mangroves, 12.1 acres

of seagrass and 4.25 acres of shallow unvegetated bay bottom and tidal flat habitat. To offsetthese impacts, the Applicant has proposed the following mitigation: 39.5 acres of seagrass

creation, 6.39 acres of mangrove creation, and 2.5 acres of tidal flat habitat creation. In order toconstruct the mitigation sites:

60,000 cubic yards of sediment would be excavated from the South Jim Neville

Preserve upland spoil island, with placement in the sediment containment area forsorting and future determination of use;

90,000 cubic yards of near beach-quality sand would be excavated from the NorthJim Neville Preserve upland spoil island, with placement in the nearshore portion of

the beach; and

2,000 cubic yards would be excavated from mitigation site access channel at the

South Jim Neville Preserve and used as substrate for seagrass plantings.

After the initial construction of the inlet and sand trap, the Applicant also proposes

periodic maintenance dredging, with placement of the dredged materials along the Gulfshorelines of Siesta Key and Casey Key. Additionally, because this volume of maintenance

material will not be sufficient to offset the deficit of sediment attributable to opening an inlet, the

Applicant proposes to dredge an offshore sand source to mitigate the adverse impacts to adjacentbeaches. However, the location and quality of the offshore sand source has not been identified

by the Applicant at this time.

The proposed activity is located between DEP reference monuments R-78 and R-79, at

the juncture of Siesta Key to the north, and Casey Key to the south, in Sarasota County, Little

Sarasota Bay (Outstanding Florida Waters) and the Gulf of Mexico, Class III Waters.

II. AUTHORITY FOR REVIEW

The Department has permitting authority under Chapter 161 and Part IV of Chapter 373,

F.S., and Chapters 62B-41, 62B-49, 62-330, and 62-343, F.A.C. The activity qualifies for

processing as a joint coastal permit pursuant Sections 161.055, F.S. Pursuant to Operating


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Agreements executed between the Department and the water management districts, as referenced

in Chapter 62-113, F.A.C., the Department is responsible for reviewing this application.

The activity also requires a proprietary authorization, as it is located on sovereign

submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund. Theactivity is not exempt from the need to obtain a proprietary authorization. Pursuant to Article X,

Section 11 of the Florida Constitution, Sections 253.002 and 253.77, F.S., Sections 18-21.0040,

18-21.0051 and 62-343.075, F.A.C., the policies of the Board of Trustees, and the OperatingAgreements executed between the Department and the water management districts, as referenced

in Chapter 62-113, F.A.C., the Department has the responsibility to review and take final action

on this request for proprietary authorization.

The Applicant has also requested a variance from state water quality standards pursuant

to Section 403.201, F.S., of the Florida Air and Water Pollution Control Act, as authorized underSection 373.414(17), F.S. Pursuant to 62-113, F.A.C., the Department has the responsibility toreview and take final action on this request for water quality variance.

III. BACKGROUND / BASIS FOR DENIAL

A. General

HISTORY AND PREVIOUS DEPARTMENT ACTIONS

Navigation charts show that as early as 1883, a predecessor inlet to Midnight Passconnected Little Sarasota Bay to the Gulf of Mexico. Midnight Pass was located about midway

between the cities of Sarasota and Venice and was opened by the hurricane of October 25, 1921.

Midnight Pass separated Siesta Key to the north from Casey Key to the south. These barrierislands form the western boundary of Little Sarasota Bay. Little Sarasota Bay is tidally

connected to the Gulf of Mexico through Big Sarasota Pass nine miles to the north and through

Venice Inlet eight miles to the south.

Historical records indicate that over the years, storms periodically shifted the location of

Midnight Pass, and that earlier dredging of the Gulf Intracoastal Waterway significantly

decreased hydraulic flow through the inlet, leading to its closure. During the process of closure,

the inlet channel migrated dramatically northward in a generally shore-parallel alignmentrevealing that classical closure conditions were in fact occurring. This closure process resulted

in the endangerment of two single-family dwellings on southern Siesta Key in 1983. Theproperty owners of these homes sought emergency relief from the Departments predecessor

agencies, the Department of Natural Resources (DNR) and the Department of Environmental

Regulation (DER), to permit plugging of the final deteriorating discharge outlet and excavationof a flow channel connection at the inlets pre-closure process original location approximately

1,250 feet to the south.


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On October 5, 1983, the County adopted a resolution to allow the property owners to

relocate the inlet, with the condition that if the inlet should close due to normal tidal flow within

two years, the owners would, at their expense, reopen the inlet in the same general location. OnNovember 23, 1983, the DER notified the owners that an evaluation of the requested permit

could not be completed in time to prevent damage to their properties. Consequently, theproperty owners elected to proceed under provisions governing a Class A emergency which was

then described by Rule 17-4.28(5)(a), F.A.C. (1983). Under that rule, the property owners were

required to seek an after-the-fact permit in order to authorize the work already performed. On

November 23, 1983, pursuant to Section 161.041, F.S. (1983), the Department of NaturalResources authorized coastal construction permit number A DBS 83-71 for the emergency

relocation and ongoing maintenance excavation of Midnight Pass.

In December of 1983, property owners excavated a new inlet channel at the original inlet

location that existed prior to commencement of the natural closure process and also placed a plugof sediment in the derelict flow channel to prevent the undermining of the two residences. Thenew inlet channel was likewise unstable, and despite several repeated attempts through March of

1984 to reopen the inlet to hydraulic flow, the inlet remained closed. Given the instability of an

inlet at this location without extensive maintenance dredging, and the high costs to maintain theopening, the Permittee abandoned their efforts to keep the inlet open. Closure of the inlet was

imminent, due to the loss of hydraulic stability, and not attributable to the Permittee. The barrierisland and adjacent coastal systems equilibrated to their current conditions, which included the

disappearance of the former inlets ebb tidal delta.

In September of 1986, Sarasota County adopted a resolution that the reopening of

Midnight Pass was consistent with Sarasota County's Comprehensive Plan, and on March 28,1988, Sarasota County applied for a permit from DER to re-open Midnight Pass to a depth of -12

feet NGVD and a width of 400 feet.

On May 9, 1990, the DER issued a notice of intent to deny the permit application.

Sarasota County initiated administrative proceedings to challenge the agencys action. A formalhearing was held before a Hearing Officer of the Division of Administrative Hearings in

Sarasota, Florida on October 15 through 18, 1990 (DOAH Case No. 90-3533). On February 19,

1991, the Hearing Officer issued a Recommended Order that the DER deny the permit. TheDER issued the Final Order on April 4, 1991 denying the permit application.

On November 29, 2004, Sarasota County (Applicant) applied for a Joint Coastal Permitto open an inlet in the vicinity of the former Midnight Pass. The proposed inlet would beexcavated across the existing barrier island between DEP reference monuments R-78 and R-79,

and it would be connected to the Intracoastal Waterway by excavating a new interior channel.


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BASIS OF INTENT TO DENY

After fully reviewing the application to open Midnight Pass, the Department hasdetermined that this project would result in significant adverse impacts to the coastal system and

would not be clearly in the public interest. As a result, the Department intends to deny theapplication to open Midnight Pass. Detailed herein is the basis for denial.

1.0 Consistency with Policy and Eligibility Criteria for a Coastal Construction PermitAfter review of the complete application, the Department has deemed the proposed

project inconsistent with the policy and eligibility criteria used to evaluate Joint Coastal Permit

applications based on Coastal Construction rules and statutes. This determination was based onthe following items.

Pursuant to Rule 62B-41.005(12), F.A.C., The artificial creation of new inlets orflushing outlets is prohibited. The Department considers the proposed project to be the artificial

creation of a new inlet. The former inlet, which previously existed between 1921 and 1983 near

the site of the proposed project, did not include the 2,200-foot-long interior channel to the GulfIntracoastal Waterway along the proposed alignment. Since the project does not simply reopen

the former inlet, the proposed excavation is considered to be the opening of a new inlet.

Rule 62B-41.005(12), F.A.C., states, in part, Previously existing inlets which have been

closed due to recent human activity may be reopened if the reopened inlet will meet certain

provisions. The inlet has not been closed due to recent human activity. The former inlet

closed in 1983 and the beach and coastal systems adjacent the former inlet have sinceequilibrated to different coastal conditions which are representative of a barrier island.

Notwithstanding the Departments finding that the proposed activity is the opening of a

new inlet, the Department is prohibited from permitting the reopening of previously existing

inlets unless all of the criteria in Rule 62B-41.005(12)(a)-(e), F.A.C., are met. The rule requiresthat the inlet:

(a)Be hydraulically stable under normal conditions;

(b)Not require shoreline stabilization;

(c)Restore water quality in disturbed coastal ecosystems to acceptable DEP Water Quality

Standards;

(d)Not result in a significant adverse impact; and

(e)Provide public benefits as described in paragraph 62B-41.005(11)(c), F.A.C.

The project does not meet the requirement in Rule 62B-41.005(12)(a), F.A.C., because

the inlet will not be hydraulically stable under normal conditions. The Applicant proposes

periodic channel maintenance dredging. The inlet will require frequent dredging to remain open


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and maintain its geometric shape, plan view, and alignment, as well as to prevent the inlet from

migrating laterally along the coast.

The instability of an inlet at this location is well documented by historical records and

engineering analyses. Therefore, the project does not meet the requirement in Rule 62B-41.005(12)(b), F.A.C., because the inlet would require shoreline stabilization through frequent

mitigative beach nourishment to prevent migration and closure.

The project does not meet the requirement in Rule 62B-41.005(12)(c), F.A.C. Theproject will not restore water quality in a disturbed ecosystem because the water quality in Little

Sarasota Bay is not considered impaired by DEP standards as stated in the Identification of

Impaired Surface Waters Rule (IWR), Chapter 62-303, F.A.C.

The project does not meet the requirement in Rule 62B-41.005(12)(d), F.A.C., becausethe project will result in significant adverse impacts. The project will render the coastal systemunstable and increase the rate of erosion of adjacent gulf beaches. The project will increase

coastal storm surge flooding to adjacent uplands interior to the proposed inlet. The direct loss of

marine turtle nesting beach, as a result of inlet excavation, and the destabilization of theremaining turtle nesting beach would constitute a Take of these listed species, as defined in Rule

62B-41.002(48), F.A.C. A Take constitutes a significant adverse impact as defined in Rule 62B-41.0021(19)(d), F.A.C. Furthermore, the project would cause a significant loss of dune,

mangrove and seagrass habitat.

The project does not meet the requirement in Rule 62B-41.005(12)(e), F.A.C., because

the project will not provide public benefits as described in paragraph 62B-41.005(11)(c), F.A.C.The project will not conserve and enhance the supply of sand to adjacent beaches as required by

Rule 62B-41.005(11)(c)2, F.A.C. The project will not preserve or enhance the naturalfunctioning of the inlet system as required by Rule 62B-41.005(11)(c)3, F.A.C., as it will require

frequent maintenance dredging. The project will not protect and enhance the marine and beach

habitat as required by Rule 62B-41.005(11)(c)4, F.A.C., as significant beach habitat will be lostdue to excavation and inlet morphodynamics.

Rule 62B-41.002(47)(c), F.A.C., defines inlet related structures as structures typicallyconstructed within an inlet, such as inlet bypassing systems, dredged channels, and sand traps.

The proposed inlet related structures may be expected to interfere with the natural longshore and

onshore/offshore movement of sediments. A net positive benefit to the coastal system cannotreasonably be expected to occur, and therefore, pursuant to Rule 62B-41.005(5), F.A.C., theproposed activities shall not be allowed.

As stated in Section 161.142, F.S., The Legislature recognizes that inlets interrupt oralter the natural drift of beach-quality sand resources, which often results in these resources

being deposited in nearshore areas or in the inlet channel, or in the inland waterway adjacent to

the inlet, instead of providing natural nourishment to the adjacent eroding beaches. The


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proposed new inlet project will divert approximately 1.4 million cubic yards of sand from the

adjacent gulf beaches to the offshore ebb shoal, resulting in a direct adverse impact to both the

Casey Key and Siesta Key beaches. As stated in Rule 62B-41.005(5), F.A.C., proposed coastalconstruction which is reasonably expected to have a significant adverse impact shall not be

allowed.

Pursuant to Subsection 161.142(2), F.S., the Department shall ensure that, On an

average annual basis, a quantity of beach quality sand is placed on the adjacent eroding beaches

which is equal to the natural net annual longshore sediment transport. A long term beachnourishment program on Casey Key, using sand from limited offshore borrow areas, is proposed

to offset the beach erosion on Casey Key caused by opening and maintenance dredging the

proposed inlet channel and sediment trap. The volume of beach compatible sand to bemaintenance dredged and placed on the Casey Key shoreline will not be sufficient to offset the

sand deficit attributable to the new inlet. Although the Applicant has proposed using an offshoresand source to mitigate for the sand deficit, the Applicant has not demonstrated that periodicbeach nourishment is environmentally or economically feasible. Hence, the Applicant has not

provided the Department with mitigation to offset the adverse impacts of the proposed inlet as

required by Rules 62B-41.005(5), 62B-41.005(15), and 62B-41.005(17), F.A.C

The Applicant has not provided adequate engineering data or information to clearlyjustify the proposed project. Further, pursuant to Rules 62B-41.003(2), 62B-41.005(5), and 62B-

41.005(12), F.A.C., due to significant adverse impacts expected from the proposed project, the

department shall not authorize the proposed application.

2.0 Water QualityPursuant to Rule 62B-41.005(12)(c), F.A.C., previously existing inlets which have been

closed due to recent human activity may be reopened only (in addition to other criteria) if the

reopened inlet will restore water quality in disturbed coastal ecosystems to acceptable

Department of Environmental Protection Water Quality Standards. The Applicant advised thatwaters on the interior of the proposed inlet (Little Sarasota Bay) are on the planning list of

potentially impaired waters based on the 1998 303(d) list, and that impairments within Little

Sarasota Bay are due to nutrient enrichment. However, the Department has re-assessed LittleSarasota Bay using the methodology contained in the Identification of Impaired Surface Waters

Rule, Chapter 62-303, F.A.C., and has determined that the bay is not impaired for nutrients using

the methodology to interpret the narrative nutrient criteria, Section 62-303.450, F.A.C. TheDepartment removed Little Sarasota Bay from the planning list of potentially impaired waters inJune 2005. Little Sarasota Bay is not considered an impaired water body.

Pursuant to Chapter 62-303, F.A.C., the current water quality within Little Sarasota Bayis acceptable for an estuarine system. After the inlet closed in December of 1983, the freshwater

residence time in Little Sarasota Bay increased, resulting in the ecological transition of Little

Sarasota Bay from a marine to an estuarine environment (current condition). The dissolved


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oxygen and salinity levels now established within Little Sarasota Bay are typical of an estuarine

system, as are the associated changes in chemical and physical parameters. Little Sarasota Bay

currently receives tidal water exchange through Venice Inlet and Big Sarasota Pass. This shiftfrom a marine system to an estuarine system is seen as a natural successional change.

3.0 Outstanding Florida Waters Classification and Public Interest CriteriaLittle Sarasota Bay was designated as an Outstanding Florida Water on April 29, 1986.

Since the project is proposed to be constructed in Outstanding Florida Waters, the Applicant isrequired to evaluate the project using the higher public interest standard in 373.414, F.S. This

provision of the statute states that, if an activity is to be conducted within an Outstanding Florida

Water, the Applicant must provide reasonable assurance that the proposed activity is clearly inthe public interest. Based on the Departments evaluation of the project using the seven public

interest criteria in Chapter 373.414, F.S., the proposed Midnight Pass Project is not clearly inthe public interest. Each of the seven public interest criteria is discussed below.

1. Whether the activity will adversely affect the public health, safety, or welfare

or the property of others: Opening the proposed inlet will create a new point of entryand flow path for storm tides affecting the uplands adjacent the interior tidal waters of

Little Sarasota Bay. Storm surge flooding may be expected to increase along LittleSarasota Bay, leading to increased property damages during major storm events such as

tropical storms or hurricanes. In addition, increased beach erosion caused by the inlet, or

meandering of the inlet, would threaten beach-front property. As such, the project does

not weigh in favor of the public interest criterion outlined in 373.414(1)(a)1., F.S., which

states that the Department shall consider, whether the activity will adversely affect thepublic health, safety, or welfare or the property of others.

2. Whether the activity will adversely affect the conservation of fish and

wildlife, including endangered or threatened species, or their habitats: The naturalhabitat of this portion of Little Sarasota Bay is currently an estuary. Opening an inlet atthis location would convert this portion of Little Sarasota Bay from an estuarine habitat

into a marine habitat, by altering the physical, chemical and biological characteristics of

the area. While a marine environment clearly has value, altering an estuarine environment(which is just as valuable) to create a marine system would be considered an adverse

impact to the estuarine system. Many of the plants, animals and functions of the current

system would be lost as a result of the proposed conversion.

The construction of a new inlet will severely alter physical and salinity gradients

associated with the estuary behind the existing barrier beach, which would modify the

trophic dynamics of the system. Due to changes in the physical and chemicalcharacteristics of this area, a large predator-dominated system is likely to develop and

would greatly reduce the capacity of the system to serve as a juvenile fish nursery and

support a wide biological diversity of estuarine-dependent species.


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The project area is designated as Essential Fish Habitat (EFH) for post-larval,

juvenile and sub-adult pink shrimp (Farfantepenaeus duorarum); post-larval, juvenile

and adult redfish; juvenile and adult black grouper (Mycteroperca bonaci) and gaggrouper (Mycteroperca microlepis); juvenile vermillion snapper (Rhomboplites

aurorubens); adult spiny lobster (Panulirus argus); juvenile Spanish mackerel(Scomberomorous maculates); post-larval and juvenile bluefish (Pomatomus saltatrix);

juvenile red grouper (Epinephelus morio); and juvenile and adult gray, yellowtail

(Ocyurus chrysurus), and lane snappers (Lutjanus synagris). Essential Fish Habitat

(EFH) listings were implemented after amendments to theMagnuson-Stevens Fishery

Conservation and Management Act (MSFCMA) in 1996 set forth a new mandate for

NMFS and regionalFishery Management Councils (FMCs) to identify and protect

important marine andanadromous (species born in fresh water that migrate to the oceanto mature, and thenreturn to fresh water to spawn) fish habitat, and to establish means for

designating EFH. Submerged aquatic vegetation (SAV), mangrove wetlands, estuarineand marine water columns, sand substrates, and marine live/hard bottom, which are alsoprotected under this legislation, would be adversely impacted by the proposed activities.

In addition, these areas provide nursery, foraging, and sheltering habitat for othereconomically important fish and shellfish, such as blue crab, bay scallop (Aequipecten

irradians concentricus), bluefish, striped mullet, spotted seatrout (Cynoscion nebulosus)and Atlantic croaker (Micropogonias undulates); and for pinfish (Lagodon rhomboids),

killifish, gulf menhaden (Brevoortia patronus), and other forage species. Blue crab,

snapper, redfish, tarpon (Megalops atlanticus), and shrimp (Order Decapoda) are species

of national economic importance as identified pursuant to Section 906(e)(1) of the

Water Resources Development Act of 1986 (PL 99-602), and therefore, are aquaticresources of national importance (ARNI).

The proposed project would result in direct loss of approximately 3.34 acres of

mangroves and 12.1 acres of seagrass. Prop-scarring from additional boat traffic and

scour from tidal currents and boat wakes would cause additional secondary impacts toseagrass beds. This would inevitably cause adverse impacts to the fish and wildlife that

populate these seagrass and mangrove habitats.

The proposed project is expected to cause adverse impacts to endangered and

threatened species. These impacts to endangered and threatened species, including

marine turtles, manatees and shorebirds, are addressed in Section 5.0 (Endangered andThreatened Species), below.

As discussed above, the project does not weigh in favor of the public interest

criterion outlined in 373.414(1)(a)2., F.S., which states that the Department shall consider,whether the activity will adversely affect the conservation of fish and wildlife, including

endangered or threatened species, or their habitat,


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3. Whether the activity will adversely affect navigation or the flow of water or

cause harmful erosion or shoaling: The project is expected to promote navigation by

providing a shorter route to the Gulf of Mexico for boaters located midway betweenVenice Inlet and Big Sarasota Pass. However, the project is also expected to cause

significant beach erosion, and may also cause erosion of seagrass beds adjacent to theinterior channel.

Based on the performance of other nearby inlets and the data provided by the

Applicant, the Department anticipates that maintenance dredging will be required at alarger volume (a minimum of 200,000 cubic yards) and shorter interval (at least every

three years and likely every two years) than predicted by the Applicant to maintain inlet

and shoreline stability (100,000 cubic yards every 3-5 years). The Applicant has notprovided clear justification or adequate engineering data that maintaining the inlet can be

achieved in the long term under these conditions. If the inlet is not maintained, the inletwill migrate or close. Such migration may be expected to further impact adjacentbeaches and upland properties. The process of closure would not be rapid, but would be

a prolonged process resulting in removal of substantial quantities of beach material to fill

the entrance channel, the sand trap, and a significant portion of the flood shoal channel.

Opening the proposed inlet may be expected to affect the tidal hydraulics of theLittle Sarasota Bay system, Venice Inlet (to the south), and Big Sarasota Pass (to the

north). Inlet tidal prisms and velocities in the adjacent inlets to the north and south will

be altered. Altering tidal flow and velocities in the bay and adjacent inlets will change

the existing circulation patterns and sediment transport volumes and pathways. The

ramification of altering the circulation and sediment budget in the adjacent waterwaysand inlets has not been fully evaluated by the Applicant.

While enhancement to navigation would result in the local area of the proposedinlet if the inlet could be maintained, navigation at the passes to the north and the south

might be affected, and harmful erosion of adjacent beaches would occur. As such, the

project does not weigh in favor of the public interest criterion outlined in 373.414(1)(a)3.,F.S., which states that the Department shall consider, whether the activity will adversely

affect navigation or the flow of water or cause harmful erosion or shoaling,

4. Whether the activity will adversely affect the fishing or recreational values or

marine productivity in the vicinity of the activity: As indicated above, the proposedproject would remove 3.34 acres of mangrove and 12.1 acres of seagrass. This wouldadversely affect the marine productivity of the area. Mangrove and seagrass habitats

contribute to marine productivity through their contribution to primary production, and by

providing food sources and shelter for numerous estuarine fish and invertebrates. They also

help to maintain the health of the system by naturally filtering water, stabilizing sediments,protecting banks from erosion and reducing turbidity. As discussed more fully below, while


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the Applicant does propose environmental mitigation for these impacts, the proposed

mitigation does not fully offset the anticipated direct and secondary impacts to the system.

Opening an inlet would provide better access to offshore fishing grounds, but the

interior channel would eliminate over 16 acres of interior tidal flats, which are currentlyused for fishing.

As discussed above, the project does not weigh in favor of the public interest

criterion outlined in 373.414(1)(a)4., F.S., which states that the Department shall consider,whether the activity will adversely affect the fishing or recreational values or marine

productivity in the vicinity of the activity.

5. Whether the activity will be of a temporary or permanent nature:If the inlet

were to be opened, and the Applicant continued the intensive management that would benecessary to keep it open, the beach erosion, the loss of this estuarine system and the lossof habitat (beach, dune, seagrass and mangrove) would be permanent. If the Applicant

were unable to continue adequate maintenance, the inlet would gradually close and this

area of Little Sarasota Bay would return to an estuarine system over many years. Giventhe permanent or long-term impacts, the project would be weighed negatively for the

public interest criterion outlined in 373.414(1)(a)5., F.S., which states that the Departmentshall consider, whether the activity will be of a temporary or permanent nature.

6. Whether the activity will adversely affect or will enhance significant

historical and archaeological resources under the provisions of s. 267.061: No

impacts or benefits to historical and archaeological resources have been identified for thisproject. As such, the project would receive a neutral weight for the public interest

criterion outlined in 373.414(1)(a)6., F.S., which states that the Department shall consider,whether the activity will adversely affect or will enhance significant historical and

archaeological resources under the provisions of s. 267.061.

7. The current condition and relative value of functions being performed by

areas affected by the proposed activity:The project would change the current conditionof this area from an estuarine system to a marine system, which would adversely affectthe value of the functions performed by the estuarine system. Currently, the project area

exhibits pronounced seasonal variation in salinity. Unique estuarine communities are

adapted to these fluctuating conditions. The proposed opening of Midnight Pass wouldtransform this productive estuary into a marine environment with a more constant salinityregime, which would change the overall ecological function of the system. As a result,

the project does not weigh in favor of the public interest criterion outlined in

373.414(1)(a)7, F.S., which states that the Department shall consider, The currentcondition and relative value of functions being performed by areas affected by the

proposed activity.


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Therefore, in balancing the seven criteria of the public interest test, 373.414(1)(a), F.S.,

the project is not clearly in the public interest.

4.0 Adequacy of Geotechnical Data and Analysis

Pursuant to Rule 62B-41.007(2)(j), F.A.C., to protect the environmental functions of

Floridas beaches, only beach compatible fill shall be placed on the beach or in any associated

dune system. Beach compatible fill is material that maintains the general character andfunctionality of the material occurring on the beach and in the adjacent dune and coastal system.

The proposed inlet channel, boat ramp access canal and mitigation areas are to be

dredged through a barrier island and within the back-barrier lagoon. The material to be dredgedfrom the barrier island is sandy sediment with some shell and little silt, which in bulk constitutes

beach compatible material that may be placed directly on the beach or within the nearshore zone.

Within the lagoon area there are sandy sediments deposited on top of peat or silt deposits

and in some cases there are roots and organic matter within the upper sandy layer. Also, the

sandy sediment generally becomes siltier towards the Gulf Intracoastal Waterway and away fromthe barrier island. The entire lagoon area is underlain by carbonate mud/silt and possible

limestone, which is seen as rock fragments and by lithified carbonate silts. Hence, the sediment

within the lagoon is not considered beach compatible material that may be placed directly on the

beach.

The area to be dredged has been divided into subareas based on the sediment type and the

potential risks for increased turbidity during dredging or placement of non-compatible sedimentson the beach or in the nearshore zone. The placement location for the material being dredged

from each of these subareas varies depending on the character of the sediment.

Pursuant to Rule 62B-41.008(1)(k)4.b. , F.A.C., permit applications for inlet excavation

shall include a quality control/assurance plan that will ensure that the sediment from the borrow

sites (dredge subareas) to be used in the project will meet the standard in Rule 62B-41.007(2)(j) ,F.A.C. To provide reasonable assurance that the material creating this potential risk will be

handled appropriately, the Applicant has specified construction methods, sequence and timing in

a Construction Methods and Sequencing Plan for the dredging and handling of the non-

compatible material, and a Sediment Quality Assurance/Quality Control Plan. The material not

suitable for direct beach placement would be discharged into a confined sediment containmentarea for separation of sand and silt. The non-compatible material would then be trucked to a

remote disposal site located outside the coastal zone.

These plans alone do not ensure that the sediment from the dredge subareas within the

back-barrier lagoon will meet the standards for beach compatible fill. In the event that theproposed construction methods do not effectively separate the non-compatible material from the

beach compatible material, then a smaller amount of material would be placed on the beach and


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in the nearshore zone. Section 161.142(1), F.S., states that the beach-quality material dredged

under this type of activity shall be placed on the downdrift beaches, or an equivalent quality and

quantity of sand from an alternate location shall be placed on the downdrift beaches.

The Applicant provided a list of alternative offshore sources, but not adequate data toallow the Department to evaluate the source and provide approval for its use. The offshore

sources identified as currently available in the project area are the same sources being used for

other projects to mitigate existing critical erosion of area beaches. It has been generally

demonstrated that a finite quantity of beach compatible sand is available offshore of SarasotaCounty, and there are extensive segments of critically eroded beaches in Sarasota County that

will need this sand. The offshore excavation of beach quality sediment to make up the deficit

attributable to the new inlet will directly impact a limited state resource already determinedessential to mitigate existing critical erosion of area beaches. The borrow areas proposed for

future use in this project may be currently available, but may not be available when needed in thefuture and may not be compatible for this project.

Pursuant to Rule 62B-41.008(1)(k)4.a., F.A.C., the Applicant has provided adequate

engineering data related to the character of the material to be dredged and placed, except for theNorth Jim Neville Preserve Mitigation Site and the Turtle Beach boat ramp access channel.

Hence, the character of the sediments within the mitigation site and access channel area is notfully known. The ultimate disposal location and the use of an unknown volume of sediments to

be dredged and removed from sovereignty submerged lands has not been identified. The

Department cannot approve disposal of these sediments without knowing the potential

environmental effects of the disposal of the sediments, as well as the end use of the material to

determine if severance fees according to Rule 18-21.011 (3), FAC, are appropriate. TheDepartment would require another permit or modification under which additional data will be

collected prior to reviewing the compatibility and placement option of the material.

5.0 Endangered and Threatened Species

In addition to the public interest test, as discussed above, the protection of Endangered

and Threatened Species is addressed in the following rules:

1. Rule 18-21.004(2)(i), F.A.C., Activities on sovereignty lands shall be designed to

minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural

or cultural resources. Special attention and consideration shall be given toendangered and threatened species habitat.

2. 3.2.2 Basis of Review for Environmental Resource Permit Applications within the

Southwest Florida Water Management District, as adopted by Rule 62-330,

F.A.C., Pursuant to paragraphs 3.1.1(a), an applicant must provide reasonable

assurance that a regulated activity will not impact the values of wetlands, other


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surface waters and other water related resources of the District, so as to cause adverse

impacts to:

(a) the abundance and diversity of fish, wildlife and listed species; and(b) the habitat of fish, wildlife and listed species.

3. Rule 62B-41.0055(2), F.A.C., Coastal construction that results in a take [of Marine

Turtles], pursuant to Section 370.12, F.S., or does not comply with the other

provisions of this rule shall not be permitted. [Note, the Marine Turtle Protection

Act has been moved from Section 370.12, F.S., to Section 379.2431, F.S.]

Marine Turtles

The proposed project would result in the direct loss of 300 linear feet (0.85 acres) of

beach on the Gulf of Mexico, which serve as marine turtle nesting habitat. Species identifiedwithin or near the project area include the threatened Loggerhead (Carretta carretta),endangered Green (Chelonia mydas), and endangered Kemps Ridley (Lepidochelys kempii).

Based on nesting densities for this area, this project could eliminate habitat that annually

supports a minimum of 20 nests, which are primarily loggerhead nests.

Aside from the fact that some of the shoreline along both Siesta and Casey Key isarmored, already reducing the amount of suitable nesting habitat available, further indirect losses

of nesting habitat could result through disruption of the existing sand transport system and

erosion of down-drift beaches. In addition, the quality of marine turtle nesting habitat on

beaches adjacent to the dredged channel would also decline for approximately 2 years each time

dredged material (from the periodic maintenance dredging) is placed on adjacent beaches. Sandybeaches immediately adjacent to inlets typically support much lower densities of marine turtle

nests than contiguous beaches farther from the inlet. This may in part be due to the complicatedcurrents and shoaling associated with tidal inlets.

Incidental Take of Marine Turtles

As defined by Rule 62B-41.002(48), F.A.C.:

Take is an act that actually kills or injures marine turtles, and includes significant

habitat modification or degradation that kills or injures marine turtles by significantly

impairing essential behavior patterns, such as breeding, feeding, or sheltering, as definedin paragraph 379.2431(1)(c), F.S.

Pursuant to Section 379.2431(1)(h), F.S.:

The department shall recommend denial of a permit application if the activity would

result in a "take" as defined in this subsection, unless, as provided for in the federal


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Endangered Species Act and its implementing regulations, such taking is incidental to,

and not the purpose of, the carrying out of an otherwise lawful activity.

The Florida Fish and Wildlife Conservation Commission (FWC) stated the following in a

letter to the Department dated November 4, 2008:

The proposed dredging would permanently destroy important sea turtle nesting

beach, thereby causing a take of marine turtle through interference with essential

breeding behaviors in accordance with Florida Statute 379.2431.

NoBiological Opinion or incidental take permit authorizing take has been provided bythe U.S. Fish and Wildlife Service or the National Marine Fisheries Service. As a result of the

FWC determination that the activity would result in a take, the Department is required to

recommend denial of this permit application according to Section 379.2431, F.S. Additionally,take is considered by the Department to be a significant adverse impact, as defined in Rule 62B-

41.002(19)(d), F.A.C. Pursuant to 62B-41.003, No coastal construction shall be allowed if it

will result in a significant adverse impact.

Manatees

The project area is located within the range of the endangered West Indian Manatee

(Trichechus manatu latirostris). The estuary of Little Sarasota Bay provides essential habitatand feeding grounds for the manatee. Sheltered areas such as Little Sarasota Bay are important

for foraging, resting, and calving. The project proposes to directly impact 12.1 acres of seagrass

habitat that is utilized by the manatee. Additionally, the creation of a new inlet would increaseboat traffic to the area thereby increasing the potential for impacts to manatees.

Shorebirds

The beach at the proposed location of Midnight Pass is utilized as a shorebird nesting

area for the threatened snowy plover (Charadrius alexandrinus), the endangered least tern(Sterna antillarum), and Wilsons plover (Charadrius wilsonia). The proposed project would

directly impact these shorebird species due to the removal of nesting habitat.

6.0 Biological Resources: Impacts and Proposed Mitigation

Approximately 3.34 acres of mangroves, 12.1 acres of seagrasses and 4.25 acres ofshallow unvegetated bay bottom and tidal flat habitat would be directly impacted by the

proposed opening of an inlet at this location. The affected mangroves consist mainly of red

mangrove (Rhizophora mangle) and black mangrove (Avicennia germinans). The density of the

seagrass beds is continuous to patchy; and the species consist mainly ofHalodule wrightii,intermixed with variable cover ofRuppia maritima. This also includes a dense bed of mixed


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seagrasses (H. wrightii, Thalassia testudinum andSyringodium filiforme), approximately 0.2

acres in size.

Rather than following the old Midnight Pass Channel alignment from the barrier island to

the GIWW, which still includes an open channel, the Applicant proposed a new alignmentthrough the seagrass meadows and intertidal mangrove islands. The Department asked the

Applicant to consider other alignments that would reduce the extent of impacts to seagrasses and

mangroves. However, the Applicant contends that the proposed alignment would provide the

best hydrologic efficiency. The project also includes the creation of a new navigation channel,connecting the Turtle Beach boat ramp to the proposed inlet, by dredging through existing

mangroves. Since the Turtle Beach navigation channel is not an integral part of the Pass

opening, the Department suggested to the applicant that project impacts could be minimized bydeleting this feature from the project. The Applicant declined. Pursuant to Rule 18-21.004,

F.A.C., Activities which would result in significant adverse impacts to sovereignty lands andassociated resources shall not be approved unless there is no reasonable alternative and adequatemitigation is proposed. Pursuant to Section 3.2.1.1Basis of Review for Environmental

Resource Permit Applications within the Southwest Florida Water Management District, as

adopted by Rule 62-330, F.A.C., if the proposed system will result in adverse impacts towetland functions and other surface water functions, then the [Department] in determining

whether to grant or deny a permit shall consider whether the applicant has implementedpracticable design modifications to reduce or eliminate such adverse impacts.

The Applicant has proposed compensatory mitigation for the direct impacts to these

estuarine communities. However, the acreage of compensatory mitigation proposed for the

direct impacts to seagrasses does not offset the functional loss of seagrass habitat according tothe Departments final Uniform Mitigation Assessment Method (UMAM) evaluation for the

proposed project (Rule 62.345, F.A.C.).

Final Mitigation and Management Plan

The Applicant submitted a final mitigation and management plan in July 2008. This

mitigation plan includes 39.5 acres of seagrass creation, 6.39 acres of mangrove creation, and 2.5

acres of tidal flat habitat creation. The details of the mitigation plan are as follows:

1) South spoil island in Jim Neville Marine Preserve Clearing to remove existing

non-native vegetation from the interior of the island, excavation and grading of theislands interior to establish a tidal pool, and transplantation to establish 11.20 acresof seagrasses and 0.74 acres of mangroves;

2) North spoil island in Jim Neville Marine Preserve Clearing to remove existing

non-native vegetation from the interior of the island, excavation and grading of theislands interior to establish a tidal pool, and transplantation to establish 18.87 acres

of seagrasses and 0.23 acres of mangroves;


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3) Jim Neville Marine Preserve Vicinity - Clearing to remove existing non-native

vegetation from the various locations adjacent to the Jim Neville Marine Preserve,

excavation and grading of site to establish intertidal elevations, and planting toestablish 1.94 acres of mangroves;

4) Old Mote Marine Site Clearing to remove existing non-native vegetation from the

location on Siesta Key, excavation and grading of site to establish intertidalelevations, and planting to establish 3.48 acres of mangrove;

5) Remnant GIWW Channel Site Filling the old channel to establish depths thatwould support the establishment of seagrass, and transplantation to establish 6.74

acres of seagrasses;

6) Old Midnight Pass Channel - Filling the old channel to establish depths that wouldsupport the establishment of seagrass, and planting to establish 2.75 acres ofseagrasses;

7) Little Sarasota Bay Credit for the expansion of 86 acres of seagrass beds that mayoccur from the project area north to Point Crisp from to an increase in water

transparency due to the pass opening (possible Seagrass Contingency Plan);

8) Otter Key - Clearing to remove existing non-native vegetation from the interior ofthe island, excavation and grading of this area to establish a tidal pool, and planting

to establish 10 acres of seagrass (possible Seagrass Contingency Plan).

Determination of Appropriateness and Sufficiency of Proposed Mitigation

The Department performed an assessment of the final mitigation plan using the UniformMitigation Assessment Method (UMAM) as prescribed in Chapter 62-345, F.A.C., based upon

the information provided by the Applicant in their final mitigation plan dated July 2008. The

mitigation plan adequately offsets impacts to shallow unvegetated bay bottom and tidal flat

habitats. The proposed mangrove mitigation does not provide sufficient acreage according to theDepartments final UMAM. Out of a total of 3.34 acres of mangrove impacts for this project, the

proposed mangrove mitigation would only offset 3.18 acres of mangrove impacts. However, an

excess portion of the proposed tidal flat habitat mitigation could be converted to mangrove

habitat at North Jim Neville Preserve to compensate for the difference and offset the impacts tomangrove. According to the Departments UMAM evaluation, the final mitigation and

management plan does not provide sufficient acreage to offset the impacts to seagrass habitat.This evaluation is based upon the Departments determination that the proposed seagrass habitat

enhancement in Little Sarasota Bay, which may occur if water transparency is increased after the

inlet is opened, would not be appropriate mitigation for the direct impacts to seagrass habitat.


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It is impossible to predict the gains (and losses) in seagrasses that may occur if an inlet

were to be opened. Even as a contingency plan, the Applicant would have to monitor the entire

area over several years to balance the gains and losses of seagrasses in order to determine if anyfunctional gain has occurred. By letter dated September 24, 2007, the Department informed the

Applicant that this part of the mitigation plan (Little Sarasota Bay) was not appropriatemitigation for direct seagrass impacts due to the risk associated with the passive expansion of

seagrasses. Additionally, the confounding influences of other point and non-point sources of

pollution on water transparency and quality were not considered in the Applicants analysis of

potential seagrass expansion. The Applicants analysis also did not consider the negative effectson trophic relationships associated with converting an estuary habitat into a marine environment

in the immediate vicinity of the project.

The Departments UMAM evaluation demonstrates that, out of a total of 12.1 acres of

seagrass impacts for this project, the proposed seagrass mitigation would only offset 10.23 acresof seagrass impacts. That leaves 1.87 acres of seagrasses that would not be offset by theproposed mitigation plan.

In addition, this project will not meet the criteria in Rule 40D-4.302(1)(b), F.A.C. (asadopted by Rule 62-330, F.A.C.), or in Chapter 373.414(8)(b), F.S. regarding unacceptable

cumulative impacts upon wetlands and other surface waters. Reasonable assurance has not beenprovided by the Applicant regarding the frequency of maintenance dredging events and

secondary and cumulative impacts to adjacent seagrass communities associated with a higher

frequency dredging interval than predicted in the permit application.

7.0 Water Quality Variance

The Applicant is requesting a variance from the provisions or Rule 62-4.244(5)(c), F.A.C., toallow an expanded turbidity mixing zone of 1,500 meters down current and 350 meters offshore

for the Siesta Key beach placement site and the Sediment Containment Area, in Class III Waters

of the Gulf of Mexico. The Department has reviewed the petition for variance and thesupporting documentation, pursuant to Subsection 403.201(1), F.S., and Rule 62-110.104, F.A.C.

Since the activity for which the variance is requested is not allowable under the statutesand rules cited above, the request for a water quality variance is also denied.

8.0 Sovereign Submerged Lands

Rule 18-21.004(2)(a), F.A.C., requires thatsovereign submerged lands be managed to

maintain essentially natural conditions. Artificially opening an inlet and changing an estuarine

environment into a marine environment would not meet this requirement.

According to Rule 18-21.004(2)(i), F.A.C., Activities on sovereignty lands shall be

designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural


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or cultural resources. Special attention and consideration shall be given to endangered and

threatened species habitat. Considering the significant adverse impacts to fish and wildlife

habitat that would be caused by this project, and the Take of endangered and threatened species,this requirement would not be met.

Pursuant to Rule 18-21.004(2)(b), F.A.C.,Activities which would result in significant

adverse impacts to sovereignty lands and associated resources shall not be approved unless there

is no reasonable alternative and adequate mitigation is proposed. Given the inadequacy of the

proposed mitigation plan, this application for a letter of consent is also denied.

B. Specific Regulatory Basis for Denial

Through the above, the Applicant has not provided affirmative reasonable assurance that

the construction of the activity, considering the direct, secondary and cumulative impacts, willcomply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder.The Applicant also has not demonstrated that the proposed activities are clearly in the public

interest, pursuant to Subsection 373.414(1), F.S.

After considering the merits of the proposal and any written objections from affected

persons, the Department finds the Applicant did not provide adequate engineering data or clearlyjustify the proposed project. Further, the activities proposed are of such a nature that they will

result in significant adverse impacts to the sandy beaches of the state; are expected to adversely

impact nesting sea turtles, their hatchlings, or their habitat; and are not appropriately designed in

accordance with Rule 62B-41, F.A.C.

C. Specific Proprietary Basis for Denial

As stated above, the applicant has not met all applicable requirements for proprietary

authorizations to use sovereign submerged lands, pursuant to Article X, Section 11 of the Florida

Constitution, Chapter 253, F.S., associated Rule 18-21, F.A.C., and the policies of the Board ofTrustees. The applicant has not provided reasonable assurance that the activity:

(1) will clearly be "in the public interest" according to the definition in Rule 18-21.003(48), F.A.C.;

(2) will maintain essentially natural conditions because artificially opening an inlet

would change the current estuarine environment into a marine environment; and(3) will not cause adverse impacts to fish and wildlife resources or public recreation or

navigation because the project would cause significant adverse impacts to fish and

wildlife habitat, and the Take of endangered and threatened species;The authorization to use sovereign submerged lands cannot be approved, in accordance

with Rules 18-21.00401 and 62-343.075, F.A.C., because the activity does not meet the


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conditions for issuance of a standard general or individual permit under Part IV of Chapter 373,

F.S., as described above.

D. Coastal Zone Consistency

As outlined above, the proposed project is inconsistent with the Departments statutory

authority provided in Chapters 161, 253 and Part IV of 373, F.S., and the rules promulgated

thereunder. This project has also been determined to be inconsistent with the specific statutory

provision of Section 379.2431, F.S., and the implementing rules, as outlined in the letter fromFlorida Fish and Wildlife Conservation Commission (FWC) dated November 4, 2008. FWC is

an agency with responsibilities in Floridas Coastal Management Program (FCMP).

Based on the above, the Department has determined that the activity is inconsistent with

Florida's Coastal Management Program (FCMP). Pursuant to Section 380.23, F.S., theDepartment may not issue a permit for an activity found to be inconsistent with the FCMP.

IV. RIGHTS OF AFFECTED PARTIES

This notice of denial is final agency action unless a sufficient petition for anadministrative hearing is timely filed pursuant to Sections 120.569 and 120.57, F.S., as provided

below. Mediation under Section 120.573, F.S., is not available for this proceeding.

A person whose substantial interests are affected by the Departments action may petition

for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. The petitionmust 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 Station35, Tallahassee, Florida 32399-3000.

Because the administrative hearing process is designed to redetermine final agency actionon the application, the filing of a petition for an administrative hearing may result in granting the

application.

Under Rule 62-110.106(4), F.A.C., a person whose substantial interests are affected by

the Departments 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 anextension of time. Requests for extension of time must be filed with the Office of GeneralCounsel 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 requestis 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.


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FDEP: Midnight Pass Intent

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