STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAGOON OAKS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4394

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on November 7, 1995, in Panama City, Florida.

APPEARANCES

For Petitioner: Lee M. Killinger, Esquire

Taylor, Brion, Buker and Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Respondent: Thomas D. Koch, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 126-A Tallahassee, Florida 32399-2946

STATEMENT OF THE ISSUES

As stipulated by the parties, the issues to be resolved in this proceeding concern whether the septic system sites in question are within 75 feet of "surface water", as defined by the law cited below and whether the actions and representations of Department personnel have created an estoppel against the Department from refusing to issue the subject permits.

PRELIMINARY STATEMENT

This cause arose upon the filing of two applications for septic system permits, for adjoining lots, by the Petitioner, Lagoon Oaks, Inc. On August 23, 1995, a Petition was filed with the Department of Health and Rehabilitative Services (Department) by the Petitioner to contest the denial of the permits.

The Petitioner claims that it is entitled to the permits because the proposed locations for the systems meet all standards and are not within 75 feet of surface water. Further, the Petitioner contends that the Department is estopped from refusing to issue the permits because of certain representations made to

the Petitioner during a site visit made to resolve a dispute over issuance of the permits and on which representations the Petitioner thereafter relied, to its detriment.

The cause came on for hearing before the undersigned Hearing Officer, as noticed. The Petitioner presented the testimony of Mr. Fred Webb, the principal of the Petitioner; Mr. Steve Lewis, an attorney and environmental consultant for the Petitioner; Mr. Eanix Poole, a former bureau chief of the Department's on- site sewage treatment and disposal system program; and Mr. Ross McWilliams, a biologist and environmental consultant for the Petitioner. The Department presented the testimony of Mr. Carl Darcy, a supervisor for the Bay County Public Health Unit and the permit processor for the permits at issue; and Mr.

David Hammons, an Environmental Specialist III for the State of Florida On-Site Sewage Program. Additionally, by agreement, the Department presented testimony through questions of Mr. Poole on cross-examination, which it substituted for its opportunity to recall Mr. Poole as a Department witness for direct examination.

The Petitioner offered and had five exhibits admitted into evidence. The Respondent offered three exhibits, two of which were accepted into evidence.

Upon the conclusion of the proceeding elected to submit proposed findings of fact and conclusions of law. They requested an extended briefing schedule with concomitant waiver of Rule 28-5.402, Florida Administrative Code. The Proposed Recommended Orders were timely filed and the proposed findings of fact contained therein are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Lagoon Oaks, Inc., is a Florida corporation. It is the developer of Lagoon Oaks, Eighth Edition, as shown on the plat in evidence, and is engaged in the business of developing the subdivision. It does not construct homes on individual lots. Instead, it sells the lots to home builders, who then construct the homes. Mr. Fred Webb, as President and sole stockholder of the Petitioner corporation and the owner of the lots for which the permit applications at issue in this proceeding were submitted. The applications for the permits concern Lots 31 and 32, Eighth Edition to North Lagoon Oaks, a subdivision located in Section 9, Township 4 South, Range 15 West, Bay County, Florida. The lots are located on Oakbrook Lane, in Panama City Beach, Florida.

   
   

   The Estoppel Issue

   
   

2. Mr. Webb, the Petitioner's President, became concerned about difficulties in obtaining septic system permits for homes he proposed to construct on the subject lots. Consequently, he contacted Steve Lewis, Esquire to assist in resolving the permitting problem for the subdivision. Mr. Lewis began by visiting the lots himself. He then reviewed the applicable statutes and rules and contacted Mr. Eanix Poole, the Bureau Chief of the On-Site Sewage Treatment and Disposal Program for the Department in Tallahassee, Florida. Mr. Lewis requested a meeting with Mr. Poole at the site to view the property and attempt to resolve disputes regarding the permits. The meeting was held on or about March 29, 1994. Mr. Webb, Mr. Lewis, Mr. Poole, Mr. Mike Sarra, the program head for Bay County, Florida, and Mr. Shuster, who is a United States Department of Agriculture Soil Scientist, assigned to work with the Department on septic system issues, were present at the meeting. Mr. Sarra and Mr. Poole were present in their official capacities as representatives of the Department.

3. During that meeting, Lots 29-33 were discussed. Mr. Webb was proposing to put mounded septic systems on the rear of the lots because of their relatively-low elevation in relation to the water table.

   
   

4. The discussion involved the question of whether certain adjoining property behind Lots 29-33 was a "surface water", as defined in Section 381.0065(2)(1), Florida Statutes, and Rule 10D-6.042(47), Florida Administrative Code. The definitions contained in the statute and rule, respectively, are as follows:

   
   

   'Surface water' means a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds and sloughs, and natural or constructed ponds contained within a recognizable boundary. This does not include retention or detention areas designed to contain standing or flowing

   water for less than 72 hours after a rainfall.

   
   

   Surface water - a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds, sloughs, and natural or con- structed ponds contained within a recognizable boundary. This does not include storm water retention or detention areas designed to contain dstanding or flowing water for less than 72 hours after a rainfall.

   
   

5. Mr. Lewis and Mr. Webb contended that the area was not a surface water, and Mr. Poole and Mr. Sarra contended that it was. They opined that the proposed septic system sites were within 75 feet of what they deemed to be a surface water, precluding permit issuance.

   
   

6. Photographs in evidence, as the Petitioner's Composite Exhibit 2, were taken shortly after that on-site meeting. They show that the area behind Lots

   31 and 32 was, at that time, cleared of underbrush and was populated by a large number of pine trees. The photographs give no indication of a recognizable body of water, including a swamp or marsh area, bayhead or cypress pond or slough or a natural or constructed pond contained within a recognizable boundary. The testimony of Mr. McWilliams corroborates this. He found no recognizable boundary, no ordinary high-water mark, and found that the supposed "wet weather pond", as Mr. Poole described it, was, in reality, a parcel of "pine flat woods", comprised predominantly of a slash/pine canopy of mature pine trees from

   60 to 80 years old.

   
   

7. At the time of the site visit, which was after a significant rainfall the preceding night, there was little or no standing water behind the lots in question. Mr. Lewis saw very little standing water, and Mr. Poole does not recall any standing water.

   
   

8. Nevertheless, Mr. Poole determined that the area behind the lots constituted a "wet weather pond", which he believed to be within the definition of "surface water". He described such a term as meaning an area where water is present at certain times of the year. Mr. Poole conceded that the term "wet weather pond" is not found within the definitions referenced above as a recognized "surface water". It is not a term describing a criteria for granting

   or denying a permit. No ordinary high-water line had been determined as of the time of this site visit, or later, concerning this alleged surface water.

   
   

9. During the course of the meeting, it was suggested by Mr. Poole that if additional fill were placed immediately adjacent to Lots 29-33 in the areas behind those lots, then the problem of the "wet weather pond" would cease to exist, and the septic system permits could be issued.

   
   

10. Mr. Webb protested this suggestion because the cost would be prohibitive. It would require him to place fill on property he did not own, and he was not sure that he could secure permission from the landowner to do so. He was reluctant to pursue such a settlement option on a problematic basis of obtaining permission from the adjoining landowner, when he really wanted to settle the matter with Mr. Sarra and Mr. Poole that day. He understood that they had the authority to settle the disputes, based upon their representations.

    
    

11. During the discussion concerning placement of additional fill on the adjoining property, Mr. Webb brought up the fact that regardless of whether he put fill on those areas, the water would, because of the overall slope of the area, continue to drain across the areas which the Department had claimed constituted surface water. Upon discussion of this issue, Mr. Sarra and Mr. Poole concluded that such drainage would not pose an impediment to the issuance of permits, because with the addition of fill, the purported wet weather pond and, hence, "surface water" would no longer exist.

    
    

12. The representations made by Mr. Poole and Mr. Sarra concerned the fact of whether the area in question adjoining the lots was a surface water and whether, if additional fill were placed on that adjoining property, the area would retain the alleged "wet weather pond" character. A representation was made by the Department, through Mr. Poole and Mr. Sarra, that if the additional fill were placed on the adjoining property, the question of whether it was a surface water within 75 feet of the proposed septic system site would become moot, and the Department would have no further reservation about issuing the permits.

    
    

13. Mr. Poole was the Bureau Chief of the On-Site Sewage Program, and Mr. Sarra was the head of the Bay County Public Health Unit. By virtue of their positions with the agency, they were empowered to resolve such disputed issues. Mr. Poole testified that one of the functions of his position was to try to mediate disputes regarding permits and resolve the issues. Further, he and Mr. Sarra were perceived by Mr. Webb and Mr. Lewis, as his attorney, as having such authority. In any event, after voicing his objections concerning permission of the adjoining landowner, Mr. Webb ultimately agreed to try to secure permission to put the fill on the adjoining property.

    
    

14. Following the meeting, Mr. Lewis wrote a confirming letter to Mr. Sarra. That letter is in evidence as Petitioner's Exhibit 3. A copy of that letter was also received by Mr. Poole. The letter confirmed the discussion that had taken place on the site with regard to Lots 29-33, concerning filling, as well as concerning other lots in the subdivision.

    
    

15. Mr. Webb and Mr. Poole both testified that the letter accurately reflected the discussions which had taken place during the meeting. The letter clearly states that with regard to certain of the other lots in the subdivision, Lots 21-24, it was agreed that permitting was not possible at that time without further investigation of the situation regarding those lots. The letter was not an attempt to bind the agency to permit issuance concerning all of the lots

    under discussion. As to Lots 29-33, however, the letter confirms that Mr. Webb would attempt to follow the Department's suggested course of action and would attempt to secure permission to place fill on the adjoining property. He did not concede, however, that the area behind the lots was actually a surface water.

    
    

16. No reply by Mr. Sarra or Mr. Poole or anyone else was made to Mr. Lewis' letter. No indications were given to Mr. Webb or Mr. Lewis, either orally or in writing, that despite the representations made on site during the meeting and despite the recitations in Mr. Lewis' letter, additional or more specific conditions were assumed by the Department. No hint was given that additional review would be required in order to issue the permits.

    
    

17. Mr. Webb was able to secure permission from the adjoining landowner to place additional fill on the adjoining property. Because this operation entailed the mobilization of substantial equipment and personnel, the filling did not actually take place until sometime in October of 1994. During that period of time, Mr. Webb placed additional fill on Lots 29-33 themselves and approximately six inches to a foot of fill on the adjoining property behind the lots, in accordance with the Department's proposal. In addition, as part of the process, septic system sites for mounded septic systems were prepared in the rear of Lots 31 and 32.

    
    

18. In the process of placing the fill, a "drainage way" was graded into the fill (a shallow, relatively-wide structure, similar to a swale in configuration) in order to accommodate the drainage of the water which was understood by the Department and the Petitioner to still require moving across the area. The six to twelve inches of fill was placed on the area in the rear of Lots 31-33, based upon the representations made by Mr. Poole and Mr. Sarra during the meeting which occurred.

    
    

19. Mr. Webb spent approximately $25,300.00, of which $24,000.00 was for equipment and personnel time and approximately $1,300.00 was for the dump truck rental for placing the fill on Lots 29-33 in the area behind them and adjacent to them. He used equipment and personnel to obtain the fill off site, haul it to the edge of the borrow site, placed it on leased dump trucks, to transport it over public roads to the site, and used his own equipment and personnel to spread and grade the fill. He spent approximately $4,000.00 placing the fill on the adjacent property and approximately $5,000.00 was spent on each of Lots 31 and 32.

    
    

20. The evidence clearly establishes that, but for the proposal of the Department during the site visit that Mr. Webb place fill on the adjoining property, in order to secure permit issuance, Mr. Webb would not have undertaken to expend the time, effort and money to place the fill on the adjoining property.

    
    

21. In expending these resources, Mr. Webb relied upon the representations made by Department officials, Mr. Poole and Mr. Sarra, acting in their official capacities, regarding what he could do to make the sites permittable. Following his placement of the additional fill on the lots and on the adjoining property, a permit for an on-site septic system was applied for on Lot 33, which is immediately adjacent to Lots 31 and 32 and contiguous to the alleged "wet weather pond". The septic system on Lot 33, like that proposed for Lots 31 and 32, is located on the rear of the property near the property line, closest to

    the adjoining property which was filled. Lot 33 was one of the lots discussed in the on-site meeting as unpermittable prior to the fill being placed on the adjoining property.

    
    

22. In accordance with the discussions on site and in partial fulfillment of the commitment made by the Department to issue permits if the filling was performed, a permit was granted for the system on Lot 33. Interestingly enough, the Lot 33 septic system site was shown by Mr. McWilliams to be only about 45 feet from the so-called "drainage way" described in his testimony, which the Department now maintains constitutes a "ditch", "stream", or other "surface water". This is its current basis to continue to deny the permits for Lots 31 and 32 as being less than 75 feet from such a supposed "surface water".

    
    

    The Department's Current Surface Water Issue

    
    

23. In approximately December of 1994 or January of 1995, Mr. Sarra retired from his position with the Department. On August 1, 1995, Mr. Poole changed positions within the agency to become an administrator for the Department in Jefferson and Madison Counties. After their departures from their former positions, the Department changed its position regarding the issuance of these permits.

    
    

24. On or about March 23, 1995, applications were made with the Department for the permits at issue in this case; and on May 19, 1995, a letter was written by Mr. Carl Darcy of the Department denying the permits. The denial letter makes reference to "numerous recent site visits". Mr. Darcy testified that he visited the site four times. The only indication of any site visits, other than his testimony, is a notation in the permit file, which states "surface water within 75 feet of site-March 20th through April 17th." Mr. Darcy testified that this notation indicated his site visits were between those dates, but he could not state the exact dates or times of day he visited the site and admitted that there was no notation in the permit file regarding any visits other than the two visits on March 20th and April 17th.

    
    

25. In the course of his duties, in his position, Mr. Darcy makes approximately 35 to 60 such site visits in his district per month. He generally does not draw any diagrams which would serve to indicate the size, location, or distance of any surface waters from a proposed septic system site, as identified during the site visit. In this case, the permit file contains no diagrams, photographs, or other writing, except the notation described above, indicating the present size, location, or other physical or temporal attributes of the alleged surface water. There is no notation therein concerning the distance of the alleged surface water from the proposed sites, on the days he visited.

    
    

26. The Department's records do not reflect whether it had rained the night before, or the week before his visit, the time of day, or the weather conditions at the site during his visit. The records do not indicate the location of any ordinary high-water line or recognizable boundary of the purported surface water. Mr. Darcy stated that he had, prior to hearing, obtained some rainfall data via telephone from a rainfall-collection station some two or three miles away.

    
    

27. Mr. Darcy's testimony regarding site conditions he purportedly observed during his inspection visits are not corroborated by any notations or indications in the Department's permit file to document the visits and the antecedent conditions at the site or the conditions prevailing after the site visits. Thus, they can be of little weight, particularly in light of the number

    of site visits which Mr. Darcy typically makes in the course of his duties each month and the fact that he admitted that some of his site visits had not been documented in the permit file at all. He does not, as a matter of practice, make determinations of ordinary high-water line of surface waters in relation to proposed septic systems and did not do so in this case. Rather, he testified that he simply "walked out to the water and there it was." He testified that the Department has no method of determining an ordinary high-water line.

    
    

28. Like Mr. Darcy, Mr. Hammons, an employee of the Department, also makes such site visits. He admitted that he has no training in how to perform ordinary high-water line surveys and did not make a determination of the "recognizable boundary" of the purported surface water in this instance. He did not make measurements of any distances of water he may have observed from the proposed septic system sites.

    
    

29. Mr. Darcy testified that the Department interprets the provisions of Chapter 381 and related rules to mean that the presence of visible liquid water on the surface of the ground for greater than 72 hours may constitute a surface water. However, assuming arguendo that the "72-hour rule" is a valid interpretation and a basis for denying a permit, Mr. Darcy could not establish whether he had made any visits to the site which were at least 72 hours apart. Mr. Hammons testified that he had not made visits 72 hours or more apart for purposes of determining whether surface water he might have observed remained present.

    
    

30. Neither Mr. Darcy nor Mr. Hammons had definite knowledge of actual conditions prevailing on the sites 72 hours prior to or after their site visits and, therefore, neither could state whether or how much it may have rained at the sites prior to their visits, how long any water was present prior to their site visits, or whether any water observed during their site visits still remained visible 72 hours after their visits.

    
    

31. Mr. McWilliams was qualified to testify as an expert regarding the wetland or biological characteristics of the area alleged to be surface water by the Department; concerning whether surface water exists in the area in question; whether it has or may have an ordinary high-water line, as well as the process for determining ordinary high-water lines.

    
    

32. The area immediately adjacent to and behind Lots 31 and 32 is characterized by a mature pine canopy. The pine trees are between 50 and 80 years old. The presence of these slash pines is inconsistent with the area being surface water, being regularly inundated or "normally wet". Slash pine grows in dry upland soils. Scattered amongst the pines is a mid-story of a number of sweetbay trees. Their number is relatively sparse, when compared to the slash pine and they do not constitute a portion of the canopy. Under the canopy, the areas of new fill have been densely colonized by a fairly large number of opportunistic herbaceous species, including rushes, sedges, and a few isolated, small pockets of cattail.

    
    

33. There is a small excavated drainage way running through the area through which water has flowed in the past. The photographs, in evidence as Petitioner's Exhibit 5, show that this drainage way does not have a mucky bottom or other defining characteristics which clearly set its area apart from the other recently-filled areas, except, perhaps, a slight difference in elevation.

    
    

34. Mr. McWilliams established that the area immediately behind and adjacent to Lots 31 and 32 is not a swamp, a bayhead, a cypress pond, a slough,

    a lake, a canal, a normally-wet drainage ditch, a retention area, or a stream. Indeed, even Mr. Darcy admitted that the alleged surface water he purported to find is not a swamp, a marsh, a bayhead, a cypress pond, a slough, a natural or constructed pond, a lake, a canal, or a retention area. Mr. Darcy was not sure if it constitutes a ditch and claimed that it constituted a stream. However, he also admitted, on cross-examination, that the stream does not flow at all times. This supports Mr. McWilliams' showing that during his visits, while there may have been some areas of standing water, there were no contiguous or continuous areas of flowing water which could constitute a stream.

    
    

35. The actions of Mr. Webb, in placing fill on the adjacent property, have caused water, which drained across the property anyway, to drain in a more identifiable drainage way, which was left when his crews finished grading and spreading the fill and left a shallow, swale-like drainage way. The photographs in evidence (Petitioner's Composite Exhibit 5) of that adjacent property show merely a depression in sandy soil, through which water appears at some time to have flowed. No water was presently extant, as shown in the photographs. Both Mr. Darcy and Mr. Hammons conceded that each time they visited the site, the amount of water observed was different. Mr. Darcy testified that in order for an area to constitute a surface water at a particular point in time, water must be present, and he conceded that the alleged stream probably is not continuous at all times.

    
    

36. In fact, there is no water body, stream, or otherwise on the adjoining property. Rather, the adjoining property serves as a drainage way for water from higher elevations. There is no evidence that the water, which has been observed by Department personnel, constitutes a surface water body, such that it has the characteristics of a recognizable body of water, including, but not limited to, a recognizable boundary or an ordinary high-water line.

    
    

37. The Department has failed to follow its own rules, which dictate that an ordinary high-water line be established in order to properly evaluate a permit request. Mr. McWilliams demonstrated that based upon his extensive experience with ordinary high-water line surveys and his knowledge of conditions at this site, the alleged surface water on the adjoining property cannot have an ordinary high-water line. This is because the water, which may be found there intermittently from time to time, does not have the character of a recognizable body of water and is not a stream or other surface water. It is simply water draining from high ground across that parcel of property to a culvert, downgradient, on a temporary or intermittent basis. The concept of ordinary high-water line, therefore, does not apply to the subject property and site.

    
    

38. In summary, the evidence demonstrates that there is no surface water, as defined in the statute and rules at issue, within 75 feet of the proposed septic system sites for which permits are sought.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

40. The criteria for locating an on-site sewage treatment system are governed by the provisions of Chapter 381, Florida Statutes.

41. Section 381.0065(4)(e)(4), Florida Statutes, sets forth the requirement that septic systems be located greater than 75 feet from a "surface water". The relevant portions of that section state:

    
    

    On site sewage treatment and disposal systems must not be placed closer than . . . 75 feet from surface waters, as defined in this section.

42. Section 381.0065(2)(1), Florida Statutes, defines "surface water" as: 'Surface water' means a recognizable body of

    water, including swamp or marsh areas, bayheads, cypress ponds and sloughs, and natural or constructed ponds contained within a recognizable boundary. This does not include retention or detention areas designed to contain standing or

    flowing water for less than 72 hours after a rainfall.

    
    

43. Substantially reiterating that definition, Rule 10D-6.042(47), Florida Administrative Code, provides:

    
    

    Surface water - a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds, sloughs, and natural or

    constructed ponds contained within a recognizable boundary. This does not include storm water retention or detention areas designed to contain standing or flowing water for less than 72

    hours after a rainfall.

    
    

44. Rule 10D-6.046(3), Florida Administrative Code, provides, in pertinent part:

    
    

    (3) Except for the provisions of Rule 10D-6.046(7)(f), systems shall not be located laterally within 75 feet of the mean high water line of tidal water bodies or within 75 feet of the ordinary high water line of lakes, streams, canals, normally wet drainage ditches, retention areas designed to contain standing or

    flowing water for 72 hours or more following a rainfall, marshes or other non-tidal surface waters. This requirement does not apply to swales which are designed to not contain water 72 hours after a rainfall event. The system shall be located a minimum of 15 feet from the design high water

    line of a retention or detention area designed to contain standing or flowing water for less than 72 hours after a rainfall, or the design

    high water level of normally dry drainage ditches or normally dry individual lot storm water retention areas.

    
    

45. In order to apply the provisions of Rule 10D-6.046(3), Florida Administrative Code, and to determine whether a proposed septic system site is within 75 feet of the surface water, Rule 10D-6.046(3), Florida Administrative

    Code, requires that the "ordinary high-water line" of any surface water be determined. Rule 10D-6.042(39), Florida Administrative Code, defines "ordinary high-water line" as:

    
    

    Ordinary high water line, nontidal - a line determined by examining the bed and banks of the water body in ascertaining whether the presence and action of the water has marked upon the bed a character distinct from that of the banks with respect to vegetation or the nature of the soil itself.

    
    

    In order to determine the ordinary high water line, it is necessary for the inspector to exercise particular knowledge regarding when

    the 'presence and action of the water has marked upon the bed a character distinct from that of the banks with respect to vegetation or the nature of the soil itself.

    
    

46. The Petitioner maintains that in order for a Department inspector to perform his duties under the above rules, as well as the dictates of Chapters

    381 and 472, Florida Statutes (the surveyor's chapter), the inspector must engage in the practice of surveying and mapping, as defined in Section 472.005(4), Florida Statutes, and must, therefore, be a surveyor and mapper. Neither Mr. Darcy nor Mr. Hammons are registered, licensed surveyors or mappers, nor is there any evidence that Mr. Poole is such. Therefore, the Petitioner maintains that they were not qualified to make a determination of ordinary high- water line and distance from any proposed septic system site.

    
    

47. The argument that the Department's inspectors must be qualified, licensed surveyors and mappers is not persuasive, given the definition of ordinary high-water line and the manner of its determination in the above-quoted rule provisions. There must have been a showing of some ability or qualification, on the part of the Department inspectors, to observe and draw conclusions from various natural identifying marks or conditions they observed at the site, in order to make a determination of the ordinary high-water line. In fact, they did not show such knowledge or expertise nor that they even made such an ordinary high-water line determination. Accordingly, scant weight can be accorded the testimony of Mr. Darcy and Mr. Hammons regarding the relative location of the proposed septic system sites and any areas where water is present.

    
    

48. In order to determine whether or not a surface water is within 75 feet of a proposed septic system, determinations must be made regarding whether or not a particular water body has a recognizable boundary and whether or not an ordinary high-water line exists. If it does, whether or not the surface water and the ordinary high-water line of it is within 75 feet of the proposed septic system site must be determined. If there is no recognizable boundary and no ordinary high-water line, there can be no surface water under the definition of Rule 10D-6.046(3), Florida Administrative Code. Mr. McWilliams, with extensive experience and training regarding ordinary high-water line surveys in determination of the existence of wetlands, water bodies and similar features, established that there is no surface water present and no ordinary high-water line determined or existent. The facts show that the drainage way does not meet the definition of a surface water body, and the concept of ordinary high-water line cannot be applied to it.

49. It is clear that neither Mr. Darcy nor Mr. Hammons actually followed the Department's rules in this case. The Department has not determined an ordinary high-water line, with regard to the alleged surface water. Because Rule 10D-6.046(3), Florida Administrative Code, requires that a septic system be constructed with a 75-foot setback from the ordinary high-water line of a surface water and no ordinary high-water line has been determined, the Department has failed to make the determinations it is required to make to show the existence of a surface water and to properly deny a permit for a septic system due to proximity to surface waters.

    
    

50. The Petitioner adduced credible, preponderant evidence that no surface water exists within 75 feet of the proposed site. No creditable evidence was adduced by the Department to counter that and show that a surface water did, indeed, exist, as surface water is defined in the subject rule. State agencies must honor the requirements of their own substantive rules until they are amended or repealed. See, e.g., DeCarion v. Martinez, 537 So.2d 108 (Fla. 1st DCA 1989); Grady v. Division of Retirement, 387 So.2d 419 (Fla. 1st DCA 1980); Gadsen State Bank v. Lewis, 348 So.2d 343, 345 (Fla. 1st DCA 1977).

    
    

51. Further, Mr. Darcy and Mr. Poole testified that the Department interprets the term "surface water" to the effect that visible liquid water is present at a particular location for a period greater than 72 hours. Mr. Poole conceded, however, that the 72-hour criterion does not appear in Chapter 381, Florida Statutes, in the definition of surface water. Mr. Darcy stated that his interpretation is based upon the 72-hour figure being "listed in other parts of the code that we have been guided to interpret as that by the Department for years." However, Section 381.0065(2)(1), Florida Statutes, which defines "surface water", does not contain the 72-hour determination. While the Department may seek to interpret the statutory definition by rule, to clarify how long water must be present in a particular location for that water to constitute a "surface water", they have not done so. The 72-hour interpretation is not found in Rule 10D-6.042(47), Florida Administrative Code, where surface water is defined by the Department. Furthermore, the only reference to 72 hours, in Rule 10D-6.046(3), Florida Administrative Code, is a reference to design criteria of retention or detention areas (which are not germane). Such a reference provides no guidance or notice regarding the Department's interpretation with regard to any areas other than retention or detention areas.

    
    

52. Nonetheless, assuming arguendo, that the "72-hour rule" is a valid interpretation of the statutory definition of surface waters, the evidence in this case clearly shows that no surface water has been shown to exist, according to that standard. There has been no determination that any water observed on those sites was, in fact, present for longer than 72 hours. To the extent the Department relies upon the "72-hour interpretation", the evidence does not demonstrate that any water remained for that length of time.

    
    

53. Additionally, the denial letter references that a "normal wet area" is within 75 feet of the proposed septic system sites. "Normal wet area" is not a term found anywhere in Chapter 381, Florida Statutes, or in Chapter 10D-6, Florida Administrative Code, as a criterion for determining whether a permit may be issued or as a basis for denial. There is a reference in Rule 10D-6.046(3), Florida Administrative Code, (the 75-foot setback requirement), to "normally wet drainage ditches." There has not been any credible proof that a normally-wet drainage ditch exists in the adjacent property in question within 75 feet of the sites to be permitted.

54. It, thus, must be concluded that the Department, as a matter of law, has failed to follow the dictates of its own rules and has attempted to apply criteria for denial of these permits, which do not appear in the Department's rules. There has been shown to be no surface water extant at the site, as defined in Section 381.0065(2)(1), Florida Statutes, or in the above-cited rule, which exists within 75 feet of the proposed septic system sites at issue.

    
    

    The Estoppel Issue

    
    

55. The Florida Supreme Court has recognized that equitable estoppel can be invoked against the State when justified by the facts. Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954). The elements of an estoppel against a state agency are:

    
    

    1. A representation by an agent of the state as to a material fact that is contrary to a later asserted position;

    2. Reasonable reliance on the representation; and

    3. A change in position detrimental to the party claiming estoppel caused by the repre- sentation and reliance thereon.

       
       

       Harris v. State Department of Administration, 577 So.2d 1363, 1366 (Fla. 1st DCA 1991); Reedy Creek Improvement District v. State of Florida, Department of Environmental Protection, 486 So.2d 642 (Fla. 1st DCA 1986); Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986).

       
       

56. In the case at hand, as referenced in the above Findings of Fact, the Department officials involved represented to Mr. Webb that if the Petitioner desired to end the disputes and obtain issuance of the permits, then Mr. Webb could avoid the expense of contesting the Department's determination that a surface water existed behind the lots (the "wet weather pond") by simply placing six to twelve inches of fill on the adjoining property. If he did that, they represented to him that the disputed factual issue of whether or not surface water existed within 75 feet of the proposed septic system sites would be obviated and the permits could issue.

    
    

57. Despite the placement of the fill in accordance with the Department's suggestion, its present position is contrary to that prior assertion in that it has denied the permits. The evidence also clearly shows that the Petitioner reasonably relied in good faith upon the representations of the Department and expended considerable time, money, and effort in complying with the Department's suggested course of action. In so relying on the Department's assurance, the Petitioner substantially changed its position to its detriment.

    
    

58. In order for estoppel to apply, the act on which the aggrieved party relies must be one on which he has a right to rely. Greenhut Construction Company, Inc. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971); City of Coral Springs v. Broward County, 387 So.2d 389, 391 (Fla. 4th DCA 1980). Mr. Sarra and Mr. Poole were present at the on-site meeting in their official capacities as representatives of the Department. They were under no mandatory duty imposed by statute or rule to meet with Mr. Webb and Mr. Lewis to attempt to resolve the issues, but did so in a good-faith attempt to resolve the disputed issues regarding permitting. Neither Mr. Sarra nor Mr. Poole indicated that they did not have full authority to reach a resolution of the issues, nor did they indicate that the resolution arrived at, by way of their suggestion,

    would be subject to later review or imposition of further conditions. The entire purpose of the meeting at the site was to attempt to resolve the disputed facts, so that Mr. Webb could proceed with his business. Indeed, Mr. Poole testified that it was part of his duties to attempt to mediate disputes such as this one, which is what he was doing when he attended the on-site meeting with Mr. Webb, Mr. Lewis, and Mr. Sarra. Therefore, the actions of Mr. Sarra and Mr. Poole were shown to be lawful and authorized. See, City of Coral Springs v.

    Broward County, supra.

    
    

59. Further, the specifics of the proposed course of action were discussed amongst the attendees at that meeting, including the ramifications raised by Mr. Webb, and acknowledged by Mr. Poole, that there would be a continued need for drainage across the area behind the subject lots, after the fill was placed, because of the overall gradient of the area. At the conclusion of the meeting, Mr. Webb informed Mr. Sarra and Mr. Poole that he would attempt to follow their suggestion. That representation was later confirmed by Mr. Lewis' letter, and Mr. Poole understood that Mr. Webb would be following the suggested course of action.

    
    

60. The proposed solution of the Department was not a qualified tentative statement. Having received no qualification regarding the solution proposed by the Department and agreed to by Mr. Webb, Mr. Webb had no reason to believe that the official position would change on the matter. Therefore, he proceeded justifiably and in good faith to follow the suggested course of action recommended by the Department. Detrimental reliance on preliminary, as opposed to final, approval of a project requiring significant expenditures will not act as a bar to the Doctrine of Estoppel. See, Town of Largo v. Imperial Homes, 309 So.2d 571 (Fla. 2d DCA 1975); Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963); Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d 1074 (Fla. 2d DCA 1981).

    
    

61. In The Florida Companies v. Orange County, Florida, 411 So.2d 1008 (Fla. 5th DCA 1982), the court dealt with the question of estoppel of a local government zoning authority. The court opined:

    
    

    Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon.

    A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form

    of words or deeds.

    
    

62. Having undertaken to meet at the site for the purpose of mediating the disputed factual issues; having proposed a course of action, whereby the Petitioner could secure its permits by obviation of the factual disputes by adding the fill to the property, the Department was required to negotiate and come to a settlement with reasonable care. In Tri-State Systems, supra., the court was faced with a question regarding whether the Florida Department of Transportation was estopped from taking certain actions by virtue of assertions which had been made by DOT personnel. The court stated:

    Although DOT personnel in the Chipley office were not necessarily obliged to respond to the inquiries from Tri-State's representatives, the fact is that they did so, and thereby became obligated to respond with reasonable care.

    It is a well-established principle that an action undertaken, even gratuitously, must be performed with reasonable care. 500 So.2d at

    216 (citation omitted).

    
    

63. The Department's assertion that Mr. Webb's actions, by filling the adjoining property, have now created a stream or a different surface water from the alleged "wet weather pond", which was the original basis for the denial of permit issuance, as a new basis for denial of the permits, is unreasonable. The Department proposed, over Mr. Webb's initial objection, that he place fill on the adjoining land. Specific discussions were had, during the site visit, recognizing and dismissing, as an impediment to grant of the permits, the fact that placement of the fill would not resolve the continuing need for water to drain across the site in the rear of Mr. Webb's lots. Mr. Webb, through his attorney, confirmed by letter that Mr. Webb would be following the Department's proposal as outlined to Mr. Webb by Mr. Poole and Mr. Sarra at the site visit. He gave the Department an opportunity to reply and correct the impression Mr. Webb and his attorney had of that conversation and meeting or otherwise communicate that the Department intended to impose additional conditions, not discussed at the meeting, on permit issuance. In what was obviously detrimental reliance upon the representations of the Department, Mr. Webb secured permission from the adjoining landowner and placed substantial fill on the adjoining property in an effort to comply with the Department's proposal. Further, his reliance upon the Department's assertion became more detrimental to him as time went on because he has been required to spend time and funds to prosecute this administrative action. He has lost time involved in his business represented by the time this administrative action will take to resolve.

    
    

64. This is a direct result of the Department not acting in accordance with its original representation and now taking the position that a new "surface water" supposedly has been created by the drainage way referenced in the above Findings of Fact. That has not been proven, as a matter of fact, to be a surface water, as discussed and determined above. Be that as it may, the testimony of Mr. McWilliams, who has expertise in determining the existence of surface waters and their ordinary high-water lines, reveals what the Department now represents as the new surface water or "stream" is only 45 feet from the septic system site on Lot 33, one of the lots for which the subject permits were originally denied, contingent upon installation of the fill. Oddly enough, after Mr. Darcy inspected the site at Lot 33, after the filling was believed to be done, the permit was granted for Lot 33. Therefore, it seems disingenuous for the Department to maintain that the septic system sites on Lots 31 and 32 are not capable of being permitted because they are within 75 feet from the Department's "newly discovered" surface water, when, in fact, the Department has already permitted the septic system site on the adjoining lot, with only a 45- foot distance.

    
    

65. The testimony and other evidence clearly shows that neither Mr. Webb nor his attorney ever conceded that the area behind the lots was, in fact, surface water. The evidence shows that Mr. Webb, upon conclusion of the on-site meeting, felt that rather than spend time or money litigating the issue at that time, the solution proposed by the Department was the most economical and

    practicable for him to accomplish at that point because the Department had clearly represented that he could get his permits if the fill were installed on the area behind his lots. If the Department had represented to him, during the on-site meeting, that he had to do more than simply place additional fill on the adjoining property, that the site would be subject to a re-evaluation and another future determination concerning whether the area was, or contained, a surface water, he might very well have opted to formally oppose the Department's intent to deny the permits at that time, before going through the time, effort and expense involved in installing the fill, based upon the Department's assurance.

    
    

66. This is not a case where the representations are mistaken statements of law, e.g., Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied,

    357 So.2d 184 (Fla. 1978). The representations made in this case were representations concerning disputed facts regarding site conditions and what actions by the Petitioner would, as a matter of fact, create site conditions such that the Department could have its objection to issuance of the permits obviated. In Dolphin Outdoor Advertising v. Department of Transportation, 582 So.2d 709 (Fla. 1st DCA 1991), the Court of Appeals for the First District ruled that DOT was estopped from revoking permits for signs which were erected in violation of statutory spacing requirements, after a DOT inspector, being mistaken regarding the spacing requirements, represented to Dolphin that the application would be approved. In reliance upon that representation, Dolphin entered into a ten-year lease for the site and began making payments. The court held that DOT was estopped from revoking the permits based upon statutory distance requirements not having been complied with, ruling that:

    
    

    We conclude that the representation by DOT's agent that the proposed location met the spacing requirements was based upon a misunderstanding of the law, but . . . this does not convert the

    factual representations into legal representations.

    582 So.2d, at 709, citing Kuge v. State, Department of Administration, 449 So.2d 389 (Fla. 3d DCA 1984).

    
    

    See, also, Harris v. State, Department of Administration, 577 So.2d 1363, 1366- 1367 (Fla. 1st DCA 1991).

    
    

67. In summary, based upon preponderant evidence, the above Findings of Fact and the authority cited herein, it is concluded that the Department personnel, by representations of fact, induced the Petitioner to rely upon the proposal made by the Department as a solution to a problem which the Petitioner never acknowledged existed in the first place. Then, the very act of the Petitioner's compliance with the Department's proposal, by filling the adjacent property, is, according to the Department, what has now caused a purported "stream" to exist and the Department to deny the permits. The representations of the Department and the Petitioner's reliance upon them can lead only to a conclusion that the Department is estopped from now taking the position that the permits must be denied due to the alleged, but, as set forth above, unproven, existence of a stream or other surface water, as defined by the above legal authority.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services directing that the permits at issue in this proceeding be issued without further delay or the imposition of any additional conditions.

DONE AND ENTERED this 8th day of March, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 8th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4394

Petitioner's Proposed Findings of Fact 1-27. Accepted.

28-30. Accepted, in concept, but rejected as subordinate to the findings of fact made by the Hearing Officer, and to some extent, unnecessary.

31-32. Accepted.

33. Accepted, as modified by the Hearing Officer. 34-49. Accepted.

1. Rejected, as unnecessary, irrelevant and immaterial.

2. Accepted.

Respondent's Proposed Findings of Fact 1-2. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence.

2. Rejected, as immaterial.

3. Accepted.

6-7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence.

8. Accepted.

9-11. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence.

1. Rejected, as contrary to the preponderant weight of the evidence.

2. Accepted, but not itself materially dispositive.

14-15. Rejected, as not entirely in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

16-17. Rejected, as contrary to the preponderant weight of the evidence, in part, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, irrelevant.

COPIES FURNISHED:

Lee M. Killinger, Esquire Taylor, Brion, Buker and Greene

225 South Adams St., Ste. 250 Tallahassee, FL 32301

Thomas D. Koch, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe St., Ste. 126-A Tallahassee, FL 32399-2946

Sandy Coulter, Acting Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

LAGOON OAKS, INC.

Petitioner,

vs. CASE NO. 95-4394

RENDITION NO. HRS-96-250-FOF-HST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

Lagoon Oaks challenges the department's denial of septic tank permits on two lots, alleging that the department's determination that the proposed septic systems lie within 75 feet of a "normally wet area" is not sufficient to deny the permit under the applicable statute and department rules. Petitioner argues as well that, regardless of the merits of the first issue, the department is estopped from denying the permits because of the actions and representations of department personnel.

The hearing officer embraced both of petitioner's arguments and concluded that the department wrongfully denied the requested permits. I reject certain of the hearing officer's findings of fact and conclusions of law with respect to the merits of the first issue, but must agree with the ultimate conclusion that the site evaluations and the denial letter are insufficient to deny the permits. I also reject conclusion that the department was estopped from denying the permits, although that issue is largely mooted.

Facts

In March 1994, Lagoon Oaks, through its president and sole stockholder, Fred Webb, met with two department employees, Eanix Poole and Mike Sarra, at lots 31 and 32 1/ in a subdivision known as North Lagoon Oaks, Eighth Edition. The meeting was intended to address concerns the department had regarding the permitting of septic systems on these lots. Mr. Poole and Mr. Sarra were of the opinion that the property adjacent to these lots constituted an area with surface water from which a septic system would have to be set back a minimum of

75 feet.

A surface water, for the instant purposes, is defined as a recognizable body of water, including swamp

or marsh areas, bayheads, cypress ponds and

sloughs, and natural or constructed ponds contained within a recognizable boundary. This does not include retention or detention areas designed to contain standing or flowing water for less than 72 hours after a rainfall.

Section 381.0065(2), Florida Statutes (1995); rule 10D-6.042(47), F.A.C.

Section 381.0065(4)(e)(4), Florida Statutes (1995), provides that "on site sewage treatment and disposal systems must not be placed closer than . . . 75 feet from surface waters," as defined above. Rule l0D-6.046(3), Florida Administrative Code, provides that

[septic] systems shall not be located laterally within 75 feet of the mean high water line of tidal water bodies or within -5 feet of the ordinary high water line of lakes, streams, canals, normally wet drainage ditches, retention areas designed to contain standing or flowing water for 72 hours or more following a rainfall, marshes or other non-tidal surface waters. This requirement does not apply to swales which are designed to not contain water 72 hours after a rainfall event. The system shall be located a minimum of 15 feet from the design high water line of a retention or detention area designed to contain standing or flowing water for less than 72 hours after a rainfall, or the design high water level of normally dry drainage ditches or normally dry individual lot storm water retention areas.

Mr. Poole further opined, and Mr. Sarra concurred, that if enough fill were placed on the adjacent area, perhaps six to 12 inches, the problem with standing or surface water would be eliminated, and the permits could be issued. Mr.

Webb, without conceding that the disputed feature was a surface water, agreed to place the fill. Everyone present at the meeting agreed that placement of the fill should have resolved the perceived problem such that permits would issue.

Mr. Webb and Mr. Poole both testified at the hearing, however, that the agreement reached at the March, 1994, meeting did not evidence an intent to circumvent any of the applicable rules regarding septic system siting.

Lagoon Oaks proceeded to place six to 12 inches of fill material on the disputed area. A swale-like feature was intentionally graded into the fill to channel the water that would still have to flow across the land. Mr. Webb testified that the swale "seemed like a good idea." The evidence is undisputed that the department was not consulted about the feature and did not agree to it.

Lagoon Oak's action in grading the feature into the fill created an identifiable drainageway through which water flows, although not at all times. Carl Darsey and David Hammonds, both department employees with extensive experience in septic system site evaluations, testified that on repeated site visits from March through November, 1995, they observed a stream-like feature which Darsey measured to be 27 and 34 feet from the septic tank mounds on lots 3l and 32, respectively. This feature varied from six inches to three feet in

width, and from three to eight inches in depth. Both Darsey and Hammonds observed small fish in the stream, which appeared to be fed in part by water seeping from a cut embankment on adjacent property.

Darsey, Hammonds and Poole testified that soil borings taken adjacent to the stream-like feature contained "mucky" soil, which is indicative of the presence of water for substantial parts of the year. All three men attested to the presence of water-based vegetation, such as sweet bay and pockets of cattail, in the disputed area. Each considered the drainageway to be a surface water requiring the 75 foot septic system setback prescribed by statute.

Ross McWilliams, an expert in marine biology, surface water drainage, and Department of Environmental Protection dredge and fill jurisdiction testified that the drainageway running through the area adjacent to the lots 31 and 32 occasionally contained flowing water, but at the time of his visits contained only standing puddles. McWilliams did not observe mucky soil, but he took no samples or borings. 2/ McWilliams estimated the drainageway to be 25 to 35 feet from lot 31, and perhaps 40 to 45 feet from lot 32. McWilliams opined that, although he did not know if the drainageway was "normally wet" as the department defined that term, it was not recognizable water body of any kind and did not possess a mean or an ordinary high water line.

Analysis

The undisputed evidence presented at the hearing establishes that the proposed septic systems are within 75 feet of a recognizable feature that may very often contain standing or flowing water; possesses a mucky-soil bottom; and supports vegetation characteristic of "normally wet" areas. The evidence also demonstrates, however, that the department did not empirically describe a surface water prior to denying the permit.

I reject the finding of fact in paragraph 30, which states that neither Mr. Darsey nor Mr. Hammonds had knowledge of actual conditions at the site 72 hours before or after any of their site visits. Mr. Darsey testified that he visited the site on September 26, 1995, and September 29, 1995, three days (approximately 72 hours) apart, 3/ and that the conditions were almost the same flowing water three to eight inches deep.

The finding of fact in the last sentence in paragraph 35 to the effect that Darsey testified that a surface water could only exist a particular point in time when water was present, is rejected. Mr. Darsey clarified the statement ascribed to him by stating that the department may consider an area to be a surface water even if no water is present at a particular site visit.

The finding of fact in paragraph 36 that there was "no evidence" of a "surface water body" is also rejected. The testimony of Poole, Darsey, and Hammonds constituted evidence that there was surface water with a recognizable boundary on the disputed area.

I reject the conclusion of law in paragraph 47 that the absence of an ordinary high water line determination defeats any testimony by department witnesses vis-a-vis the distance between the septic system site and the surface water. Mr. Darsey was the only witness who had actually measured the distances (27 feet for lot 31; 34 feet for lot) from the boundary of the feature to the proposed septic system sites. All three witnesses who testified concerning distances, including petitioner's expert McWilliams, agreed that the sites were well within 75 feet of the drainageway. Furthermore, the undisputed testimony

was that the entire feature was no more than three feet wide in the relevant area; therefore, regardless of "ordinary high water line" the feature is within

75 feet of the septic systems.

The conclusions of law in paragraph 51 that the 72-hour criterion for determining application of the surface water setback does not appear in the applicable statute or rules, and is, in any event, only a design criterion applicable only to structures specifically designed to retain water, are in error. The 72-hour criterion for determining a surface water does appear in section 381.0065(2)(1), Florida Statutes, and the applicable rules. The department interprets the statute and rule 10D-6.046 to provide that standing or flowing water present in excess of 72 hours constitutes a surface water for setback purposes. The department's interpretation of section 381.0065(2)(1) and the related rules is entitled to great deference unless petitioner establishes that the interpretation is clearly erroneous. Legal Environmental Assistance Foundation, Inc. v. Board of County Commrs., Brevard County, 642 So.2d 1081 (Fla. 1994). Nothing in the record demonstrates that the department's interpretation of the statute and applicable rules is clearly erroneous; indeed, there was no attempt to make such a showing. The hearing officer's narrow construction of the 72-hour determination is rejected.

I reject the estoppel-related finding of fact in the last sentence of paragraph 23, that, after Mr. Poole and Mr. Sarra left the positions they held within the department as of the March 1994 meeting with Webb, "the Department changed its position regarding the issuance of these permits." This "fact" is more in the nature of a characterization of the evidence (a conclusion), and is incorrect. There is no evidence that the department ever "changed" its position with respect to the issuance of permits. Mr. Poole believed in March, 1994, that placing the fill would solve the problem with surface water and that the permits could then be issued. Mr. Darsey, Mr. Hammonds and Mr. Poole testified at the hearing that surface water still remained on the disputed area such that the permits could not be issued.

I reject the hearing officer's conclusion (paragraphs 55 through 67 of the Recommended Order) that the department is estopped from denying the permits.

The evidence indicates that the department mandated that fill be placed in order to alleviate the surface water condition. The permits were denied on the basis that the fill material did not alleviate the surface water condition.

Furthermore, petitioner, without consulting the department, intentionally created a drainageway in the fill that the department considered to be a surface water. The department never represented that, regardless of the efficacy of the fill placement, the permit would issue. Mr. Webb testified that he never intended to circumvent any legal requirement for obtaining the permits. The department never changed its position that the presence of surface water barred issuing a permit. Petitioner has not demonstrated the elements of estoppel.

See Harris v. Dept. of Administration, 577 So.2d 1363 (Fla. 1st DCA 1991)

Finally, I must address the conclusion of law, styled a finding of fact, in paragraph 38 of the Recommended Order, that there was no statutory or rule- defined "surface water" within 75 feet of the proposed septic system sites. The evidence presented at the hearing 4/ suggests that there may well be a surface water, the "recognizable boundary" of which is still being established. I must agree, however, with the hearing officer's conclusion that the department did not follow the applicable rules in chapter 10D-6, Florida Administrative Code, in denying the permit applications. The site evaluation forms do not identify a recognizable water body (i.e. a normally wet drainage ditch), nor do they establish the presence of surface water for the requisite 72 hour period

following rainfall. The forms do not indicate the setback which exists from the proposed system to the disputed feature. The forms are not signed or dated.

The observed water table and estimated wet season water table are not provided, nor is high water table vegetation indicated. 5/ The extensive soil sampling that was detailed at the hearing is not described. 6/ Much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Finally, the denial letter, as noted by the hearing officer, references a "normally wet area" which is not a "surface water" feature described in statute or rule that may justify denial of a septic system permit.

Accordingly, despite disagreement with portions of the Recommended Order, I must concur in the hearing officer's Recommendation that the permits sought in this case should be issued.

For the reasons set forth above, it is ORDERED that petitioner's applications for septic tank permits Nos. 95.03.1135 and 95.03.1145 be approved and that these permits be issued.

Ruling on Exceptions

The substance of many of the Department's lengthy numbered exceptions has been incorporated, in whole or part, in the body of this order. A significant number of the exceptions are interrelated, such that the incorporation of some renders others immaterial or redundant. Given the nature of the exceptions, a number-by-number recitation would be difficult and would serve little purpose.

DONE and ORDERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: RICHARD HUNTER

Deputy Secretary for Health

ENDNOTES

1/ This meeting also concerned a number of other lots owned by Lagoon oaks in the same subdivision. The other lots are not relevant to this proceeding.

2/ David Hammonds provided undisputed testimony that soil borings revealed muck soil underlying the top layer of fill material placed by Lagoon oaks.

3/ These visits occurred after the permits had been denied.

4/ This would include Mcwilliams' testimony that water "occasionally flowed" through the drainageway and that he observed standing water in the drainageway during his site visits

5/ 0f course, proper documentation of a form of surface water that cannot meet the setback requirement could, in an appropriate case, render water table and vegetation determinations unnecessary.

6/ ibid.

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

P. Michael Ruff, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Thomas D. Koch, Esquire District 2 Legal Office Department of Health and

Rehabilitative Services 2639 North Monroe Street Suite 126A

Tallahassee, Florida 32399-2949

Lee M. Killinger, Esquire Taylor, Brion, Buker and Greene

225 South Adams Street Suite 250

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 1st, day of August, 1996.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 95-004394

Orders for Case No: 95-004394