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Agenda 01/26/2010 Item #10DAgenda Item No. 10D January 26, 2010 Page 1 of 13 Executive Summary Recommendation to consider available options and direct the County Manager on how to proceed with the Clam Bay navigational markers. Objective: Request direction and authorization from the Board of County Commissioners on how to proceed with the Clam Bay navigational markers permit application after receiving a Consolidated Notice of Denial from FDEP. Considerations: At the June 23, 2009 meeting, the Board of County Commissioners directed staff to proceed with permitting and installing the Clam Bay navigational markers to come into compliance with the US Army Corp of Engineers (USACE) permit requiring the installation of navigational markers on the main channel in Clam Bay that meet US Coast Guard standards (USCG). Installation of these markers first requires permitting from Florida Department of Environmental Protection (FDEP) and the USCG. FDEP has twice issued staff "Consent by Rule" approval based on Administrative Code to install navigational markers and has dismissed the Pelican Bay Foundation request for hearings based on this rule. Recently however, FDEP has changed direction indicating that "Consent by Rule" authorization was improperly issued. A concern based on water depth has arisen over this being a navigational route instead of a navigational channel The navigational route declaration is based on water depth information that was recently provided to FDEP. FDEP is firm on the issue and as such, "Consent by Rule" does not apply and the permit application based on "Consent by Rule" has been denied. A copy of the denial is attached. Another avenue exists with FDEP to obtain navigational marker permits within Clam Bay and may be considered so as to exhaust all possibility of coming into compliance with the Board's direction. Collier County can re -file for a "Letter of Consent" for this work. This requires Board of Trustee (BOT) Approval and appearance in front of the governor and cabinet. FDEP staff has indicated their support in this request. This would require a public meeting and would have objectors and supporters. The application consists of seven (7) items and a site visit from FDEP. An administrative challenge to the BOT could happen but a decision from the BOT may cant' more weight than agency action. U.S. Coast Guard approved the navigational markers in writing on 9/14/09. This approval is conditional based on Final USCG environmental review. Florida Fish and Wildlife (FWC) do not have jurisdictional approval for navigational markers so their approval is not required. Two options exist at this time: a. Since FDEP has denied the permit based on the fact that the "Consent by Rule" does not apply, staff can provide this ruling to the USACE, indicating that our permit Agenda Item No. 10D January 26, 2010 Page 2 of 13 request has been denied by FDEP and request that they please remove that condition and close out the USACE permit. b. Re -file for a "Letter of Consent" for this work. As stated above, this will require a Board of Trustee (BOT) approval and appearance in front of the governor and cabinet. This would completely exhaust all avenues to satisfy the BCC direction to come into compliance with the USACE permit to install navigational markers within Clam Bay. If this approach is unsuccessful, the county will petition the USACE to close out this permit based on FDEP denial. Advisory Committee Recommendations: The Coastal Advisory Committee recommended that the County pursue filing a "Letter of Consent" with the Governor and BOT with a 6 -2 vote on 1/15/2010. The Committee also recommended that staff file a request for an extension of time to challenge to the FDEP action. Fiscal Impact: Travel expenses to Tallahassee by two staff members can be expected. Staff time to prepare and monitor this request is expected to be less than 40 hours. Out of pocket expenses by the County can be expected to be less than $3,000. With staff time, expenses can be expected to be less than $8,000. Funding is available from the Coastal Zone Management Operating Fund I1 1- 110409. Growth Management Impact: No impact to the growth management plan would result from this Board action. County Attorney Findings: The Consolidated Notice of Denial has been reviewed by the County Attorney's Office. Pursuant to the Florida Administrative Code, the County may file a challenge to this agency action. The challenge, or an extension of time, must be filed within 21 days from January 11, 2010. Therefore the County's Petition for Administrative Hearing would need to be filed on or before February 2, 2010. Based on the Denial, it is difficult to detennine whether the administrative challenge would be successful. This item is legally sufficient for Board action. — CMG Staff Recommendations: Request direction and authorization from the Board of County Commissioners on how to proceed with the Clam Bay navigational markers permit application. Prepared by: Gary McAlpin, CZM Director Agenda Item No. 10D January 26, 2010 Page 3 of 13 COLLIER COUNTY Approved By OMB Coordinator County Manager's Office BOARD OF COUNTY COMMISSIONERS Date 111912010 4:14 PM Item Number. 10D Item Summary: Recommendation to consider available options and direct the County Manager on how to Date proceed with the Clam Bay navigational markers. (Gary McAlpin, Director, Coastal Zone Public Services Division Management) Approved By Meeting Date: 1/26/2010 9:00:00 AM Leo E. Ochs, Jr. Approved By Date County Managers Office Tona Nelson Administrative Assistant, Senior Date Public Services Division Parks & Recreation 1119/2010 11:10 AM Approved By Director -Coastal Management Gary McAlpin Programs Date Public Services Division Coastal Zone Management 1119/20101:02 PM Approved By Colleen Greene Assistant County Attorney Date County Attorney County Attorney 1119/2010 1:05 PM Approved By Jeff Klatzkow County Attorney Date 1119/2010 2:52 PM Approved By OMB Coordinator County Manager's Office Office of Management & Budget Date 111912010 4:14 PM Approved By Marla Ramsey Administrator- Public Services Date Public Services Division Public Services Division 1119/2010 4:43 PM Approved By Leo E. Ochs, Jr. County Manager Date County Managers Office County Managers Office 1119/2010 5:02 PM Agenda Item No. 10D JanuPrx 264,�2pa st Florida Department of Governor Jeff Kottkamp Environmental Protection Lt. Governor South District Office P.O. Box 2549 Michael W. Sole Fort Myers, FL 33902 -2549 Secretary Designee CERTIFIED MAIL NO. 7005 3110 0002 9314 3478' RETURN RECEIPT REQUESTED In the matter of notification: by: Collier County DEP File No. 11-0295193-001 attn: Coastal Zone Management Department Collier County - ERP 3300 Santa Barbara Boulevard Naples, FL 34106 CONSOLIDATED NOTICE OF DENIAL NOTICE OF DENIAL OF USE OF EXEMPTION AND CONSENT OF USE TO USE SOVEREIGN SUBMERGED LANDS This notice pertains to the State of Florida Department of Environmental Protection (Department), South Regulatory District Office, Submerged Lands and Environmental Resource Program's verification of regulatory exemption issued on June 11, 2009, the Consent by Rule authorization to use sovereign submerged lands issued on August 7, 2009, and a corrected letter for the Consent by Rule authorization issued on August 12, 2009. These notices authorized the installation of one (1) navigation pole marker: idle speed no wake, eight (8) navigation buoys, one (1) idle speed no wake sign attached to an existing bridge, one (1) informational pole marker: caution swimmers, one (1) navigational pole marker/ informational message: (local knowledge required, caution swimmers, shallow shoals), and two (2) informational pole markers: idle speed no wake, in Clam Pass. "More Protection, Less Process" www.dep,statefl.us Agenda Item No. 10D Applicant: Collier County January 26, 2010 File No. 11-0295193-001 Page 5 of 13 Page 2 of 10 However, upon reviewing additional information received following the final agency action, the Department has determined that the activity does not qualify for an exemption under Section 403.813(1)(k), Florida Statue (F.S) and does not qualify for consent to use sovereign submerged lands under Chapterl8- 21.005(b) Florida Administrative Code (F.A.C). Therefore, the letter of exemption dated June 11, 2009, the Consent by Rule letter issued August 7, 2009, and the Consent by Rule corrected letter issued August 12, 2009, are all hereby revoked. The Department hereby gives consolidated notice of denial of the use of an exemption and the authorization to use sovereign submerged land to install one (1) navigation pole marker: idle speed no wake, eight (8) navigation buoys, one (1) idle speed no wake sign attached to an existing bridge, one (1) informational pole marker: caution swimmers, one (1) navigational pole marker/ informational message: (local knowledge required, caution swimmers, shallow shoals), and two (2) informational pole markers: idle speed no wake, in Clam Pass, Class II Waters, Section 8, 9, Township 49 South, Range 25 East, Collier County pursuant to Section 403.813(1)(k), F.S. and Chapterl8- 21.005(b), F.A.C. This denial of the use of an exemption and the authorization to use sovereign submerged land also constitutes a finding of inconsistency with Florida's Coastal Zone Management Program, as required by Section 307 of the Coastal Zone Management Act Pursuant to 15 CFR part 930, subpart H, and within 30 days from receipt of this letter, you may request that the Secretary of Commerce override this objection. In order to Applicant: Collier County File No. 11- 0295193 -001 Page 3 of 10 Agenda Item No. 10D January 26, 2010 Page 6 of 13 grant an override request, the Secretary must find that the activity is consistent with the objectives or purposes of the Coastal Zone Management Act, or is necessary in the interest of national security. A copy of the request and supporting information must be sent to the Florida Coastal Management Program and the federal permitting or licensing agency. The Secretary may collect fees from you for administering and processing your request This Consolidated Notice of Denial is based on the reasons stated below. • On October 27, 2009, The Department received a letter from the Florida Fish and Wildlife Commission (FWC), Boating and Waterways Section; stating that FWC is rescinding the temporary authorization for placement of markers within Clam Bay and Pass. As a result, the activity is no longer being marked pursuant to Section 327.40 F.S., and is now inconsistent with Section 403.813(1)(k), F.S. • On November 11, 2009, the Collier County Coastal Zone Management Section submitted to the Department a bathymetric survey of Clam Bay, which was completed by Morgan & Ecklund, Inc. on October 13, 2009. The provided survey does not document an existing navigable channel through Clam Bay. The installation of the navigational markers is inconsistent with pter - Z1W05fi)(b), .PAC , which states that any channel markers delineate existing and authorized or permitted navigational channels. Applicant: Collier County File No. 11-0295193-001 Page 4 of 10 Agenda Item No. 10D January 26, 2010 Page 7 of 13 The Department has determined that the following changes to the project may enable the Department to verify an exemption and grant authorization to use sovereign submerged lands: • Provide a valid Florida Fish and Wildlife authorization, showing that the proposed navigation markers are marked in accordance with Section 327.40 F.S. • Submit an application requesting a Letter of Consent authorization to use sovereign submerged lands. The application shall include all necessary information listed in Chapter 18- 21.007, F.A.C. Modification of the project as specified above may enable the Department to determine that the activity is consistent with Florida's Coastal Management Plan. This denial 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 of the Florida Statutes as provided below. If a sufficient petition for an administrative hearing is timely filed, this action 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. 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 granting the application. Applicant: Collier County File No. 11- 0295193 -001 Page 5 of 10 Mediation is not available, Agenda Item No. 10D January 26, 2010 Page 8 of 13 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 of the Florida Statutes 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. In accordance with rules 28- 106.111(2) and 62- 110.106(3)(a)(4), petitions for an administrative hearing by the applicant must be filed within 21 days of receipt of this written notice. The failure to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that right. Under rule 62- 110.106(4) of the Florida Administrative Code, 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 prior to 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. Upon motion by the requesting party showing t at t ie fai u'I- re to fie a request or an extension of time before the deadline was the result of excusable neglect, the Department may also grant the requested extension of time. Applicant: Collier County File No. 11-0295193-001 Page 6 of 10 Agenda Item No. 10D January 26, 2010 Page 9 of 13 A person subject to regulation has a right to apply for a variance from or waiver of the requirements of particular rules, on certain conditions, under section 120.542 of the Florida Statutes. The relief provided by section 120.542 applies only to regulatory rules. It does not apply to proprietary rules of the Board of Trustees of the Internal Improvement Trust Fund. Nor does it apply to statutes or federal regulatory requirements. Applying for a variance or waiver does not substitute or extend the time for filing a petition for an administrative hearing or exercising any other right that a person may have in relation to the Department's action or proposed action. The application for a variance of waiver is made by filing a petition with the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399 -3000. The petition must specify the following information: (a) The name, address, telephone number, and any facsimile number of the petitioner; (b) The name, address, and telephone number, and any facsimile number of the attorney or qualified representative of the petitioner, if any; (c) The applicable rule or portion of a rule from which a variance or waiver is requested; (d) The citation to the statute underlying (implemented by) the rule identified in (c) above; (e) The type of action requested; Applicant: Collier County File No. 11- 0295193 -001 Page 7 of 10' Agenda Item No. 10D January 26, 2010 Page 10 of 13 (0 The specific facts that demonstrate a financial hardship or a violation of principles of fairness that would justify a variance or waiver for the petitioner, (g) The reason why the variance or waiver would serve the purposes of the underlying statute (implemented by the rule); and (h) A statement whether the variance or waiver is permanent or temporary and, if temporary, a statement of the dates showing the duration of the variance or waiver requested. The Department will grant a variance or waiver when the petition demonstrates both that the application of the rule would create a substantial hardship or violate principles of fairness, as each of those terms is defined in section 120.542(2) of the Florida Statutes, and that the purpose of the underlying statute will be or has been achieved by other means by the petitioner. 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 of the Florida Administrative Code. A petition that disputes the material facts on which the Department's action is _ based must contain the following information: Agenda Item No. 10D Applicant: Collier County January 26, 2010 File No. 1 1-0295193-001 Page 11 of 13 Page 8 of 10 (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; 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. _____ Agenda Item No. 10D Applicant Collier County January 26, 2010 File No. 11-0295193-001 Page 12 of 13 Page 9 of 10 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. Under sections 120.569(2)(c) and (d) of the Florida Statutes, 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 determination constitutes an order of the Department. Subject to the provisions of paragraph 120.68(7)(a) of the Florida Statutes, 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 of the Florida Statutes, 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. The applicant, or any party within the meaning of section 373.114(1)(a) or 373.4275 of the Florida Statutes, may also seek appellate review of the order before the Land and Water Adjudicatory Commission under section - .- . '.. . Water Adjudicatory Commission must be filed with the Secretary of the Commission Applicant: Collier County File No. 11-0295193-001 Page 10 of 10 Agenda Item No. 10D January 26, 2010 Page 13 of 13 and served on the Department within 20 days from the date when the order is filed with the Clerk of the Department. Executed in Lee County, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Jon M. Iglehart Director of District Management South Florida District P.O. Box 2549 Fort Myers, Florida 33902 Telephone: (239) 332 -6975 JMI /rs Copies furnished to: Collier County Property Appraiser U.S. Army Corps of Engineers, ACOE Application No, log # 11729 DEP, Office of General Counsel, Tallahassee DEP, Florida Coastal Management Program, Danny Clayton Director, Office of Ocean and Coastal Resource Management, NOAA,1305 East - West Highway, SSMC4, Silver Spring, MD 20910 Florida Fish and Wildlife Conservation Commission CERTIFICATE OF SERVICE The undersigned duly designated deputy clerk hereby certifies that this NOTICE OF DENIAL including all copies, was mailed before the close of business on 2010, to the above listed persons. FILING AND ACKNOWLEDGMENT receipt of which is hereby m 0,1ue, V)(� 1- \l- k u Clerk Date