STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXWELL B. CARTER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6362

) OGC NO. 91-1853

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on March 20, 1992, a formal hearing was held in this case in accordance with Section 120.57(1), Florida Statutes. The hearing location was the Council Chambers, City Hall, Highway 20, Freeport, Florida.

Charles C. Adams was the Hearing Officer.

APPEARANCES

Petitioner: Maxwell B. Carter, Pro Se

Post Office Box 20891 Birmingham, Alabama 35216

For Respondent: Candi E. Culbreath

Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF ISSUES

The issues in this case concern the application for a dredge and fill permit which would allow the placement of fill in the amount of 180 cubic yards of material involving a wastewater disposal and treatment system on a single family residential lot. The area covered by the fill would be approximately

0.03 acres. When taking into account the piling house which would be constructed on the lot, the affected acreage of wetlands inclusive of the house and wastewater treatment system would be 0.051 acres.

PRELIMINARY STATEMENT

On September 6, 1991, when Petitioner was denied a permit for dredge and fill activities, he availed himself of the opportunity to request a formal hearing to resolve the issue of his entitlement to be granted the permit in question. This request for hearing was by correspondence dated September 20, 1991.

In turn, Respondent requested the Division of Administrative Hearings to assign a Hearing Officer to conduct the formal hearing in accordance with Section 120.57(1), Florida Statutes. The request for assignment of a Hearing

Officer was received by the Division of Administrative Hearings on October 4, 1991. The hearing was conducted on the aforementioned date.

At hearing Petitioner testified in support of his application. Respondent presented the testimony of Clifford Rohlke, an environmental specialist who works for Respondent in the Wetlands Resource Management Program. Mr. Rohlke was accepted as an expert in biology and botany as those disciplines are applied in the determination of the Respondent's wetlands jurisdiction and the impacts of this proposed project. Petitioner's Exhibits 3-6 were admitted into evidence. Respondent's Exhibits 1 and 2 were admitted. The parties' Joint Exhibits 1-7 were admitted. Official recognition was made of Chapters 10D-6,

17-4, 17-301, 17-302, and 17-312, Florida Administrative Code. This recognition was given upon request by Respondent. In addition, official recognition is given to the procedural rules of the Respondent set forth in Chapter 17-103, Florida Administrative Code.

A transcript of the proceeding was prepared and filed with the Division of Administrative Hearings. The filing date was April 16, 1992. In keeping with instructions given to the parties, the parties had ten days from the filing date to submit proposed recommended orders, excluding weekends and holidays.

Respondent timely submitted a proposed recommended order on April 27, 1992. Petitioner has not exercised his option to submit a proposed recommended order. The fact finding suggested in the proposed recommended order presented by the Respondent is addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. On May 20, 1991, Respondent received Petitioner's application for a dredge and fill permit. This application called for the placement of 180 cubic yards of fill material in association with the installation of a 20' x 50' mounded septic tank system. That wastewater treatment system was to support a residence which would be built on piles on the land in question. In addition, Petitioner sought permission to install a driveway to service the residence from the road which fronts the lot.

   
   

2. The land upon which fill would be placed, excluding the driveway, totals 0.03 acres. When taking into account the wetlands influenced by the project, including the placement of fill for the septic tank and drain field, plus the footprint of the residence, 0.051 acres would be involved. The project site is in Walton County, Florida, Section 32, Township 15, Range 19-W.

   
   

3. The lot where Petitioner would carry out this project to construct the residence and supporting conveniences is dominated by transitional herbaceous wetlands species.

   
   

4. The lot in question abuts La Grange Bayou as that water body connects to the Choctawhatchee Bay. Both the bayou and the bay are Class III waters. Within one mile from the project site are found shell fishing activities in a Class II water body.

   
   

5. Under the circumstances, the lot where the home would be built is subject to the Respondent's jurisdiction over the wetlands and adjacent waters.

   
   

6. Petitioner may not carry forward the project to build the home and install facilities for wastewater disposal and treatment without obtaining a permit.

7. Petitioner's attempt to obtain a permit from Respondent met with a notice of permit denial issued by Respondent on September 6, 1991. Petitioner by timely requesting a formal hearing challenged the preliminary decision by the agency to deny his permit.

   
   

8. In the intervening period between the time which the Respondent denied the permit and the date upon which the hearing was conducted Petitioner has modified his application. In particular, the application now calls for fill activities in association with on-site sewage treatment through an aerobic treatment system. The details of that system were not adequately described by the Petitioner in the course of the hearing to allow a specific impression concerning the treatment efficiencies in that system as those efficiencies influence the protection of the environment over which the Respondent has jurisdiction. That environment includes ground water and surface waters in the adjacent Class III waters. Nor was it adequately explained what might be necessary to maintain the on-site sewage treatment system to insure that that system operated within expected performance parameters. Finally, it was not apparent from the presentation at hearing that the substitute aerobic treatment unit would be a better choice in protecting the environment over which Respondent has jurisdiction when contrasted with the risk to the environment by the installation of a septic tank system as originally called for in the permit application.

   
   

9. Another change which the Petitioner has in mind is to forgo the placement of necessary fill to install a driveway. Instead, the Petitioner intends to exit from the roadway that fronts the property directly onto the lot and to park his vehicle on the lot having made that exit.

   
   

10. To the extent that the house is built and an aerobic treatment unit would be placed on the lot, assuming that the aerobic treatment unit would take up space similar to the septic tank system, 0.051 acreage of wetland habitat in the project area would be permanently lost. This loss or destruction on the wetland habitat will have an adverse influence on wildlife. In driving his vehicle onto the lot, Petitioner will cause the destruction of additional wetlands habitat.

    
    

11. In addition, Petitioner has failed to present the necessary reasonable assurance that the aerobic treatment system for waste water generated at the residence will not adversely impact the ground water and surface waters in the adjacent Class III waters. This circumstance concerning the possibility, if not probability, that water quality standards will be violated by operating the on- site sewage treatment system is influenced by the fact that the high water table in the soils where the sewage treatment system would be placed on the lot is at zero inches below the ground surface. This reality makes it even more important that the applicant establish the ability of the treatment system to perform adequately where the ground water intersects the surface and the receiving waters, the Class III waters, are nearby the treatment system. In particular, Petitioner has not given the necessary reasonable assurance that leachate from the treatment system will not enter the ground water in the wetlands found on the lot, rise to the surface of those wetlands and/or enter the Class III waters adjacent to the lot.

    
    

12. Should the leachate produced by the operation of the aerobic sewage treatment system escape beyond the boundaries of the system itself, it would have an adverse impact on fish and wildlife, in addition to presenting potential violations of water quality standards.

13. Given the removal of wetlands habitat at the project site and the adverse influence which that removal has, together with Petitioner's failure to demonstrate necessary reasonable assurance that the wastewater treatment system will adequately perform, it cannot be said that the project in question is not contrary to the public interest. In this connection, this project has a real potential to adversely affect the public health, conservation of fish and wildlife, and the habitats of fish and wildlife, adversely affect fishing and recreational values or marine productivity in the vicinity of the project and to do so in a manner which is permanent in nature. Furthermore, it is not unreasonable to believe that the project might change the current condition and relative value of functions being performed by areas which are affected by the proposed activity.

    
    

14. Some of the adverse influences that could be expected from this project which have been discussed are by way of secondary impacts, those affecting waters where Respondent has jurisdiction. They involve loss of wetland habitat by the impairment of the wetland function of remaining wetlands not filled and adverse influences on water quality brought about by the overall habitat loss including the filled area. The introduction of leachate which compromises water quality in waters over which the Respondent has jurisdiction is caused by use of the wastewater treatment system and is a secondary impact. Driving on the site and the existence of the stilt house cause secondary impacts related to wetland habitat, the habitat not primarily adversely influenced by filling.

    
    

15. As can be seen in Joint Exhibit 6, an aerial photograph of the project site, this lot is located in an isolated area. While additional property may be found in the surrounding area near Petitioner's lot, which additional property is constituted of wetlands owned by the same individual who sold Petitioner his lot, at present no development plans are contemplated. The owner of the other property has not expressed an interest in development and no subdivision plats have been filed which would evidence such an intention. Consequently, the concern by the Respondent that approximately two acres of wetlands, inclusive of the current project, could be subjected to cumulative adverse impacts affecting waters over which the Respondent has jurisdiction is not a reasonable expectation. The owner of the adjacent property could develop, but the history of the locale to this point does not indicate an interest in doing so and it is not concluded factually that other projects may reasonably be expected to be located within the jurisdictional extent of waters of the Respondent, taking into account possible use of land other than the lot owned by the Petitioner.

    No other projects exist in the immediate vicinity which are not found in the aerial photograph, nor are other projects under construction for which permits or jurisdictional determinations have been sought from the Respondent. It has not been shown that any projects in the vicinity were under review, approved or vested pursuant to Section 380.06, Florida Statutes.

    
    

16. In responding to the permit application, Respondent has acted consistently with its approach to decisions on similar permit applications.

    
    

17. Petitioner has offered to mitigate the influences from his project by filing restrictive covenants limiting any further construction on the lot, filling activities or other improvements which would have as a consequence additional loss of wetlands and in particular Petitioner has offered to protect a strip of the wetland property approximately 80 feet wide abutting the Class III waters by maintaining that strip in its natural state. Notwithstanding his willingness to take these steps, Petitioner has failed to give the necessary reasonable assurances that would allow the dredge and fill permit to be issued.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.

    
    

19. For the Petitioner to be granted the permit in dispute he must show by a preponderance of the evidence that he is entitled to the permit. Rule 17- 103.130(1), Florida Administrative Code. Petitioner has failed in that proof.

    
    

20. Petitioner was obligated to acquire a permit based upon the language in Section 403.913(1), Florida Statutes, which prohibits dredging or filling in, on or over surface waters without benefit of a permit issued by the Respondent, unless an exemption is given in accordance with the statute or Respondent's rules. Petitioner's activities contemplate filling in an area associated with the protection of surface waters and in an instance in which an exemption from the permit requirement was not involved.

    
    

21. As revealed in Chapter 17-301, Florida Administrative Code, the lot in question is a wetlands area over which the Respondent has jurisdiction through its regulatory authority to protect surface waters by only permitting dredging activities pursuant to a permit issued upon a showing of entitlement to its grant.

    
    

22. The Respondent could not grant the permit to the Petitioner unless the Petitioner provided the Respondent with reasonable assurance that water quality standards would not be violated. That requirement is found in Section 403.918(1), Florida Statutes, and amplified in Rule 17-312.080(1), Florida Administrative Code. Petitioner has failed to provide Respondent with the necessary reasonable assurance that water quality standards applicable here found within Chapter 17-302, Florida Administrative Code, will not be violated.

    
    

23. Petitioner must also provide a reasonable assurance that the project is not contrary to the public interest as defined in Section 403.918(2), Florida Statutes, and further explained in Rule 17-312.080(2), Florida Administrative Code. Petitioner has failed to provide the Respondent with reasonable assurance that the project is not contrary to the public interest when taking into account the review criteria for determining whether the project is not contrary to the public interest. Those review criteria are announced at Section 403.918(2)(a), Florida Statutes. Of those criteria, Respondent has failed to give reasonable assurance that the project is not contrary to the public interest related to the question of whether the project will adversely affect the public health; whether the project will adversely affect the conservation of fish and wildlife or their habitats; whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project, in a circumstance in which the project will be of a permanent nature. Petitioner has failed to give the necessary reasonable assurance that the project is not contrary to the public interest concerning current conditions and relative value of functions being performed by areas affected by the proposed activity.

    
    

24. Section 403.919(1), Florida Statutes, speaks of the impacts of the project for which the permit is sought, referred to as secondary impacts. The secondary impacts are to be considered as they are involved in permit review where waters over which the Respondent has jurisdiction are affected. In this instance, there are secondary impacts concerning the loss of wetland habitat, by impairment of the wetland function of the remaining wetlands not directly

    influenced by this project and the adverse water quality impacts resulting from the overall habitat loss as that loss of habitat impacts water quality and based upon the leachate which may be released from the on-site sewage treatment.

    Driving on the site, and existence of the stilt house are secondary impacts related to wetlands.

    
    

25. Section 403.919(2) and (3), Florida Statutes, in describing matters which must be considered in deciding to grant or deny a permit for an activity which would affect the waters over which the Respondent has jurisdiction makes it incumbent for the Respondent to consider:

    
    

    1. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.

    2. The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

    
    

    This function is also referred to as the consideration of cumulative impacts. For reasons described in the fact finding, the impact of this project together with other existing, contingent or reasonably to be expected projects does not form the basis for denying the permit based upon the cumulative impact.

    
    

26. Rule 17-302.080(6)(b), Florida Administrative Code, calls for recognition of the special value and importance of Class II waters which are sites of commercial and recreational shellfish harvesting and are nursery areas for fish and shellfish. In part, it states:

    
    

    The Department also shall deny a permit for dredging or filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposing a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violation of water quality standards in the Class II waters.

    
    

27. The Class II waters described in the facts are not adjacent to the project site or close in proximity. Therefore, the Petitioner does need to submit a plan or propose a procedure.

    
    

28. Within Part I to Chapter 403, Florida Statutes, which deals with pollution control, is found the declaration of legislative intent. Section 403.021(8), Florida Statutes, states:

    
    

    The Legislature further finds and declares that the public health, welfare, and safety may be affected by disease-carrying vectors and pests. The department shall assist all governmental units charged with the control of such vectors and pests. Furthermore, in reviewing applications for permits, the

    department shall consider the total well-being

    of the public and shall not consider solely the ambient pollution standards when exercising its powers, if there may be danger of a public health hazard.

    
    

    Contrary to the conclusions of law suggested by the Respondent, this statement of legislative intent concerning the expected performance by the Respondent in carrying forward its duties as a regulator does not extend to the enforcement of the requirements for permitting on-site sewage disposal systems which is incumbent upon the State of Florida, Department of Health and Rehabilitative Services, an independent regulator in Florida. Respondent may not enforce the terms of Rule 10-6.047, Florida Administrative Code (effective March 17, 1992), and prohibit the grant of a dredge and fill permit based upon the Petitioner's failure to satisfy the expectations which the Department of Health and Rehabilitative Services has concerning the effectiveness of Petitioner's on-site sewage disposal system.

    
    

29. Respondent's recitation that an agency's interpretation of its own rules and operable statutes is entitled to great deference does not lead to the conclusion that the legislature had in mind that the Respondent could or should enforce the regulatory requirements attributable to the Department of Health and Rehabilitative Services under the guise of assisting that other governmental unit charged with control of disease carrying vectors and pests. The term "assistance" in this instance is taken to mean cooperation in recognizing the independent jurisdiction which the Department of Health and Rehabilitative Services has in determining whether that agency should issue permits or variances for installation of on-site sewage disposal systems. Respondent would be within its bounds to make the Department of Health and Rehabilitative Services aware that the dredge and fill permit application had been filed with the Respondent involving installation of an on-site sewage disposal system. Respondent does not have concurrent jurisdiction to determine whether the Petitioner should be granted a permit or a variance to install that system under rules which are the province of the Department of Health and Rehabilitative Services in carrying forward its regulatory function. Concerns which the Respondent has about the well-being of the public separate and apart from ambient pollution standards, and in the interest of the protection of the public health are spoken to in Section 403.918(2), Florida Statutes, dealing with Respondent's public interest standard.

RECOMMENDATION

Based upon the consideration of the facts, and in view of the conclusions of law, it is,

RECOMMENDED:

That a Final Order be entered which denies the application for dredge and fill permit sought by the Petitioner.

DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed facts of the Respondent:

Paragraphs 1-10 are subordinate to facts found. Paragraph 11 is contrary to facts found.

Paragraphs 12 through 16 are subordinate to facts found.

COPIES FURNISHED:

Maxwell B. Carter Post Office Box 20891 Birmingham, AL 35216

Candi E. Culbreath Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006362

Orders for Case No: 91-006362