STATE OF FLORIDA . DEPARTMENT OF ENVIRONMENTAL PROTECTION IN THE MATTER OF: PETITION FOR VARIANCE + BY HOWARD SAUTER OGC Case No. 00-0483 002k EY FINAL ORDER On March 21, 2000, Howard. Sauter filed a petition for variance with the Department of Environmental Protection (Department) under section 120.542 of the Florida Statutes, See Exhibit 1. The | petition requests a variance of the provisions of rule 62-312.060(10), F.A.C., which prohibits an applicant from getting a permit if the submitted application fails to meet the permitting criteria, Howard Sauter owns a single family lot directly facing Santa Rosa Sound, and has filed an application for a wetland resource permit from the Department to fill 0.19 acres of jurisdictional wetlands to construct an 85’ x 50’ single family home witha 208° x 20° driveway and a 15’circular roundabout \ connected to a 10° driveway. Santa Rosa Sound is a Class II water body, Unclassified shellfish harvesting 7d area. : : ; ° . . 1, The petitioner, Howard Sauters’ address is 1133 E. Washington Street, Phoenix, Arizona 85034. | 2. Howard Sauter has filed an application for a wetland resource permit from the | Department to construct a single family home adjacent to Santa Rosa Sound. The proposed project would impact approximately 0.19 acres of jurisdictional wetlands. The Santa Rosa Sound Js a Class II water body, Unclassified for shellfish harvesting. 3. Rule 62-312.080(2), F.A.C., prohibits issuance of a permit unless the applicant provides the Department with reasonable assurance based on plans, test results or other information that the project is not contrary to the public interest in ‘accordance with sections 373.414(1), and 373.4145, F.S., and chapter 62-312, F.A.C, 4. Section 373.414(1)(a), F.S.: In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in section 373.421(1), and is regulated under the part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria: 5. 1, Whether the activity will adversely affect the public 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; 3. 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; 5. 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; and 7.. The current condition and relative value of functions being performed by areas affected by the proposed activity. Rule 62-312.060(10), F.A.C., allows the Department to consider mitigation when permit issuance criteria is not met in sections 373.414(1), and 373.4145, F.S., and chapter 62-312, F.A.C. Specifically, this rule states that (10) During the processing of the permit application, the Department shall determine whether or not the application, as submitted, meets the criteria contained in sections 373.414(1), and 373.4145, F.S., and chapter 62-312, F.A,C. If the project, as designed, fails to meet the permitting criteria, the Department shall discuss with the applicant any modifications to the project that may bring the project into compliance with the permitting criteria. The applicant shall respond to the Departments, in writing, as to whether or not the identified modification to the proposed project is practicable and whether the applicant will make the identified modification. The term “modification” shall not be construed as including the alternative of not implementing the project in some form. When the Department determines that the project, as submitted or modified, fails to meet the criteria contained in sections 373.414(1), and 373.4145, F.S., and chapter 62-312, F.A.C., and 403.918(2), F.S., (repealed 1993), the applicant may propose mitigation measures to the Department as provided in chapter 62-312, Part III, F.A.C. Nothing herein shall imply that the Department may not deny an application for a permit, as submitted or modified, if it fails to meet the criteria in sections 373.414(1), and 373.4145, F.S., and chapter 62-312, F.A.C., or that mitigation must be accepted by the Department. 6. Section 120.542 of the Administrative Procedure Act authorizes an agency to grant a variance from or waiver of its administrative rules when “the person subject to the rate demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.” Section 120,542(2), F.S. Section 120.542 defines “substantial hardship” as ‘a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver.”. Section 120.542 further states that “principles of fairness” will be violated “when the literal application of a - tule affects a particular person in a manner significantly different from the way it affects other similarly situated person who are subject to the rule.” section 120,542(2), F.S. 7. A variance does not fulfill the purpose of the underlying statutes. No violation of principles of fairness has occurred because these rules and statutes have been uniformly applied to the regulated public. During the processing of Mr. Sauter’s permit application, Mr. Sauter was offered the opportunity to avoid and minimize environmental ‘impacts by reducing the amount of fill needed to construct the driveway. Mitigation, to compensate for those otherwise unavoidable wetland impacts, was suggested by Department staff, but was rejected by Mr, Sauter. Instead Mr. Sauter chose to request a waiver of the Department’s permitting criteria. In order for the Department to uniformly apply those rules and statutes, avoidance, minimization, and mitigation must be incorporated into the permitting process. This waiver request would not allow a uniform application of the rules and statutes by the Department. Therefore, this variance is hereby denied. NOTICE OF RIGHTS This final order will become final unless a petition for an administrative proceeding is filed pursuant to the provisions of sections 120.569 and 120.57 of the Florida Statutes. Any person whose substantial interests are affected by the Department’s action may file such a petition. The petition must contain the information set forth below and must be filed (received) in the Department's Office of General Counsel, 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399-3000. Any Petition filed by Howard Sauter must be filed within 21 days of receipt of this order. Petitions filed by any other person must be filed within 21 days of publication of the public notice or within 21 days of receipt of this order, whichever occurs first. Any other person who files a petition must mail a copy of the petition to Howard Sauter, 1133 E. Washington Street, Phoenix, Arizona 85034, at the time of filing. The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to Tequest an administrative determination (hearing) under sections 120.569 and 120.57 of the Florida ‘Statutes, or to intervene in this proceeding (initiated by a party) and participate as a party to it. Any subsequent intervention will only be at the discretion of the presiding officer upon the filing of a motion in compliance with tule 28-106.205 of the Florida Administrative Code. . A petition must contain the following information: (a) The name, address, and telephone number of each petitioner; the Department case identification number and the county in which the subject matter or activity is located; (b) A statement of how and when each petitioner received notice of the Department action; (c) A statement of how each petitioner's substantial interests are affected by the Department action; (d) A statement of the material facts disputed by the petitioner, if any; ‘© A statement of facts that the petitioner contends warrant reversal or modification of the Department action; : (f) A statement of which rules or statutes the petitioner contends require reversal or modification of the Department action; and (g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Department's final action may be different from the position taken by it in this order. Persons whose substantial interests will be affected by any such final decision of the Department on the petitions have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under section 120.573 of the Florida. Statutes is not available for this proceeding. This 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. A party to this order has the right to seek judicial review of it under section 120.68 of the Florida Statutes, by filing 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, Mail Station 35, 3900 Commonwealth Boulevard, 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 must be filed within thirty days after this order is filed with the clerk of the Department. DONE and ORDERED this { p__-day of June 2000 in Pensacola, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Program Administrator Submerged Lands and Environmental Resource Program be " FILING AND ACKNOWLEDGMENT FILED’on this date, under section 120.52 of the Florida Statutes, with the designated Department Clerk, who hereby acknowledges receipt of this order. Conroe (D. Cordon) Qermne 16,2000 CLERK ; DATE CERTIFICATE OF SERVICE I CERTIFY that a true copy of the foregoing was mailed to thowa rel , i) __,onthis___] ly *Aday of June 2000.

Docket for Case No: 00-002884