STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKLIN T. SNOW, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2836

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 6, 1984, in Inverness, Florida.

APPEARANCES

For Petitioner: Franklin T. Snow, pro se

Route 2, Box 67

Crystal River, Florida 32629

For Respondent: Charles G. Stephens, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

By letter dated July 31, 1984, Franklin T. Snow, Petitioner, requested a hearing to contest the denial by the Department of Environmental Regulation (DER), Respondent, of his application to fill some 4,500 square feet of his property located near Ozello, Citrus County, Florida. As grounds for the denial it is alleged the purpose of the fill is to create the buffer zone required by the Department of Health and Rehabilitative Services (DHRS) before a septic tank permit will be issued and Petitioner has failed to provide reasonable assurances that the immediate and long-term impacts of the project would not result in the violation of water quality standards pursuant to Rule 17-4.28(3), Florida Administrative Code. Also included in this application, and unopposed by DER, is a request for an after-the-fact permit to establish an access road across an existing canal to provide access to Petitioner' s property.

At the hearing, Petitioner called six witnesses, two of which are employed by DER, and also testified in his own behalf; Respondent called one additional witness; and fifteen exhibits were admitted into evidence. Respondent has submitted proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each finding of fact has been made, either directly or indirectly, in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Franklin T. and Barbara Snow acquired the NE corner of the S-1/2 of the SE-1/4 of Government Lot 3 in Section 14, Township 19 South, Range 16 East near Ozello in Citrus County. This property was acquired by Petitioner at a public sale by the U.S. Government who had acquired the property in a tax delinquency proceeding.

   
   

2. Petitioner purchased the property to use as a homesite for a doublewide prefabricated home he desired to place on the property. Before a building permit will be issued by Citrus County, Petitioner is required to have access to water and to sewage disposal facilities. No central sewage treatment facility serves this area and other developed lots in the vicinity use septic tanks. Petitioner's application for a septic tank permit was denied by the Citrus County Health Department because there was an insufficient buffer zone between the proposed drain field and surface water. Section 381.272, Florida Statutes, provides onsite sewage disposal systems shall be placed no closer than 75 feet from surface waters. Because the lot owned .by Petitioner was platted prior to 1972, the minimum setback for this property is 50 feet from surface waters.

   
   

3. Petitioner appealed to the Review Group for Individual Sewage Disposal, DHRS, for a waiver from this setback requirement. By letter dated March 9, 1984, Petitioner was advised that his request for variance was denied.

   
   

4. Following discussions with Citrus County Health Department officials who issue septic tank permits, on May 11, 1984, Petitioner applied to DER for a dredge and fill permit to place some 750 cubic yards of fill into a wetland area on Petitioner's property to provide a sufficient buffer or setback zone for a proposed septic tank and drain field installation.

   
   

5. The subject property is located at the northeast corner of a marsh approximately 1,200 feet from the open waters but within the landward extent of the St. Martins River. The marsh area consists principally of black rush and salt grass and is interlaced with small tidal creeks which flow into the two adjacent canals or into St. Martins River. Petitioner's property contains an upland parcel approximately 50 feet in width between existing canals which resulted from dredging these canals. The "upland" configuration was larger at one time than its present configuration, but was reduced to its present size through enforcement action by environmental agencies. The area which Petitioner seeks to fill had fill removed therefrom in these enforcement proceedings. The waters surrounding and including the project site are classified as Class III waters.

   
   

6. Soil borings taken at the site shows the salt marsh underlain by 8 to

   12 inches of sand, which overlays an organic mat of decaying anerobic black rush. Beneath this organic layer is limerock.

   
   

7. Petitioner's application for a permit to fill this property was denied by Respondent because of the proposed septic tank installation. Respondent suggested chemical sewage disposal systems could be used at this site; however, the only witness qualifying as an expert in waste disposal facilities is familiar with other waste disposal systems and testified none of those systems can be used at this site. Before a building permit will be granted, household water supply is required and treatment of this water after use for bathing, washing, etc., will still be necessary and this treatment cannot be accomplished in a chemical system.

8. Septic tank systems are regulated by DHRS and applications therefor are approved by DHRS specialists at the county health department level. The property here involved is within the 10-year flood plain and in order to obtain septic tank approval the site must be elevated above that plain. Here, that is

   4.9 feet above sea level. The site is 3.5 feet above sea level. The bottom of the drain field is required to be 24 inches above the water table. If the fill permit is granted and approximately three feet of fill is placed over the 4,500 square feet, this will raise the property sufficiently so it will not be subject to tidal action and will provide a buffer zone sufficient to allow Citrus County to issue a septic tank permit.

   
   

9. One objection raised by DER is that filling the area over existing vegetation will create another organic mat of decaying vegetation which will leach laterally into adjacent surface waters where it will contribute nutrients and exert an oxygen demand on the water column. Citrus County Health Department has authority to require the existing detritius be removed before new fill is applied and to require the perimeter of the fill area to be constructed with clayey soils to inhibit leachate escaping from the site. Removal of salt grass would precede removal of the decaying vegetation under the 8 to 12 inches of sand and leave nothing to add to the nutrient level of adjacent surface waters or impose an oxygen demand on the water column.

   
   

10. The black rush and salt grass which presently dominate the proposed fill site perform a significant water quality function in trapping sediments, filtering runoff and assimilating nutrients. The presence of adjacent canals increases the value of this function. The proposed fill site also functions as a productive habitat for numerous aquatic species which comprise a portion of the estuarine food chain and ecosystem. More than a dozen aquatic organisms were turned up by a singe scoop of a dip net in an area nearly in the center of the proposed fill site. Leaving the site in its present condition creates a public benefit to the State.

    
    

11. Adding fill to the area as requested will allow the site to comply with the regulations for septic tank installation. The U.S. Army Corps of Engineers will issue a federal dredge and fill permit to Petitioner if this application is granted. Therefore, the granting of this application for a dredge and fill permit will allow Petitioner to use the property he purchased for a home site.

    
    

12. Respondent called one witness who qualified as an expert in the field of public health microbiology. This witness testified that studies have shown dead end canals and septic tank leachate to be significant contributors to high fecal coliform densities in adjacent waters. This witness opined that the statutory buffer zone is inadequate to prevent violations of Class III water standards in adjacent surface waters from such sources.

    
    

13. Proposed finding No. 16, while not technically incorrect, is misleading. Bradley did represent that a buffer zone whose perimeter is composed of clay will keep leachate from escaping the site; that if a 50-foot setback could be maintained from surface waters, the county would grant the permit; and he believed the fill permit should be granted.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

15. Rule 17-4.07, Florida Administrative Code, provides generally that a permit may be issued only upon such conditions as the Department may direct if the applicant affirmatively provides the Department with reasonable assurance that the activity will not cause pollution.

    
    

16. In exercising its authority to issue or deny the issuance of permits, DER is acting under the police powers of the State. Those powers are to be exercised to protect the health, safety, and welfare of the public and may not be arbitrarily or capriciously applied. Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981). In such a case the State has the burden to show an adverse impact will result if the permit is granted. Zabel v. Pinellas County Water and Navigation Control Authority, 171 So. 2d 3761 (Fla. 1965).

    
    

17. Exercise of such police powers infringes upon an owner's constitutional right to the use and benefit of his property. While such private use of property is not without limitations, particularly with respect to the rights of adjoining property owners, nevertheless the actions of the State may constitute a taking of the property if an impermissible encroachment of private rights is involved. There is no settled formula for determining when the valid exercise of police power stops and an impermissible encroachment on private rights begins. It is generally held that if the regulation creates a public benefit it is more likely an exercise of eminent domain, whereas if a public harm is prevented it is more likely an exercise of the police power. Graham v. Estuary Properties, Inc., supra, at 1381.

    
    

18. Here, DER is in an anomalous position. One reason for denying the permit is because filling the 1/8 acre involved will remove that much ecologically productive habitat from the system. Such a result creates a public benefit and is in the nature of a taking. Protection of the environment is a primary function of Respondent. Another reason given by Respondent, and the principal, if not the only true reason for this denial, is to prevent the degradation of the waters of the State by the installation of a septic tank. This would indicate the denial was to prevent a public harm and, therefore, be a proper exercise of the police powers of the agency. The problem I find with this rationale is that regulation of septic tank installations is a function of DHRS and not a function of DER. Rules and regulations for the installation of septic tanks are within the province of DHRS who, by statute, has been given the responsibility of ensuring that septic tanks are permitted and installed in such a manner that they will not constitute a danger to the public health. This exercise of police power respecting septic tanks belongs to DHRS; and not to DER.

    
    

19. The evidence presented in this case is uncontradicted that, if the permit is issued to fill the Petitioner's 4,500 square feet of property to the requested elevation, the installation of this proposed septic tank can be accomplished so as to comply with all rules and regulations for septic tanks. Once Petitioner complies with all statutes and rules regulating the installation of a septic tank, there should be no danger to the Class III waters in the vicinity. Compliance with such rules would seem to entitle Petitioner to the dredge and fill permit requested.

    
    

20. Rule 17-4.07, F.A.C., above-noted, authorizes DER to establish conditions deemed necessary to protect the environment when issuing a dredge and fill permit. That provision authorizes DER to issue the dredge and fill permit to Petitioner upon the conditions that the organic layer underlying the sand be removed during the dredge and fill operation, that clay soils be used in the perimeter of the fill area to inhibit the escape of leachate from the site, and,

if necessary, that clayey soils be used on the bottom of the fill area if necessary to keep leachate from leaching into the surface water or aquifer through the limestone.

From the foregoing it is concluded that denial of the dredge and fill permit requested by Franklin T. Snow on the ground that such filling of the property will remove the filled area from its existing status of production habitat would create a public benefit and would constitute a taking for which Petitioner would be entitled to compensation. It is further concluded that the regulation of septic tank installations and the issuance of permits therefor is within the province of DHRS and not DER; and, if the installation of the septic tank meets the statutory and regulatory requirements for installation of septic tanks, then Petitioner has provided reasonable assurance that the installation of the proposed septic tank will not be a source of pollution to the adjacent Class III waters. It is

RECOMMENDED that Franklin T. Snow be issued an after-the-fact dredge and fill permit to construct an access road to his property; and that he be issued a dredge and fill permit to fill approximately 4,500 square feet of his property by approximately three feet to the elevation needed to meet all of DHRS' requirements, subject to the following conditions:

The existing organic material below the 8 to 12 inches of sand be removed and replaced with sand or clay during the fill process;

That the salt grass covering the site be removed before the fill is applied; and

That the perimeter of the fill area be filled using sand with a high clay content.

ENTERED this 18th day of December, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1984.

COPIES FURNISHED:

Franklin T. Snow Route 2, Box 67

Crystal River, Florida 3269

Charles G. Stephens, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

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

RECOMMENDED ORDER ON REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKLIN T. SNOW, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2836

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER ON REMAND

In accordance with Respondent's Order of Remand, the following is submitted. The initial finding of fact requested of the Hearing Officer is:

Will the deposition of approximately 750 cubic yards of fill as provided in Snow's application for a dredge and fill permit and the resultant loss of wetlands vegetation result in

violations of applicable Department rules?

By Order entered April 22, 1985, the Respondent was directed to specify the specific Department rules regarding which these additional findings are desired. In response to that Order, Respondent referred to Florida Administrative Code Rules 17-3.061(2)(b), (j), and (r); 17-3.125(5), (7), (13), and (19); and 17-

3.061(p). These involved BOD, Nutrients, Turbidity, Bacteriological Quality, Biological Integrity, Dissolved Oxygen, Nutrients, and "substances in concentration which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants--none shall be present."

At the original hearing Petitioner agreed to remove existing vegetation over the fill site before fill was placed

EXHIBIT A

therein to provide fill of a consistency required by the Department of Health and rehabilitative Services (DHRS). Regardless of petitioner's agreement, Section 253.124, Florida Statutes, gives the Department authority to require the vegetation be removed before fill is placed. Removing the existing vegetation will remove the evils resulting from covering vegetation and the subsequent decomposition of that vegetation. Section 253.124(2), Florida Statutes, provides:

The written application herein provided for shall be accompanied by a plan or drawing drawing showing the proposed construction and manner in which the construction will be

be accomplished and also the area from which any fill material is to be dredged if the proposed construction is intended to be created from dredged material. In the event the Department finds that such proposed extension or filling of land or such proposed

dredging is not violative of any statute, rule, or other restriction which may be applicable thereto, that no harmful obstruction to or alteration of the natural flow of the

navigable water within such area will arise from the proposed construction, that no harmful or increased erosion, shoaling of channels, or stagnant areas of water will be created thereby, and that no material injury or monetary damage to adjoining land will accrue therefrom, the permit shall be granted to the applicant; however, prior to the issuance of such permit, the Department or other authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the conservation of fish, marine and other wildlife, or other natural resources to such an extent as to be contrary to the public interest and whether the destruction of oyster beds, clam beds, or

marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as a nursery or

feeding grounds for marine life, will result therefrom to such an extent as to be contrary to the public interest. The Department shall also consider any other factors affecting the public interests.

Provided that Petitioner is required to--and the conditions subject to which the permit may be granted can so require--remove all vegetation before fill is added, the deposition of approximately 750 cubic yards of fill in the proposed location will not result in violation of applicable Department rules.

The second factual determination asked in the Order of Remand is:

Will the installation of the proposed onsite sewage disposal system meeting the setback requirements of Florida Administrative Code Rule 100-6 result in violations of Class III water quality standards?

The DHRS official who testified in these proceedings is the individual who issues septic tank permits in the jurisdiction in which this application lies. He would require the perimeter of the fill area be composed of soils with a high clay content. He would also require the fill material to be of good percolating qualities. Use of clay soils on the perimeter of the water side of the fill area to the depth of the bedrock will stop any flow of effluent from the septic tank drain field to the adjacent waters. Not only did the DHRS official testify that he would include such a requirement in the septic tank permit issued to petitioner, but also the Department can require such a condition in the fill permit. With proper fill to allow adequate percolation of the drain field and a clayey soil perimeter on the water side of the fill area and the statutory setback complied with, no violation of Class III waters will result from the installation of the proposed septic tank.

ENTERED this 7th day of May, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1985.

COPIES FURNISHED:

Franklin T. Snow Route 2, Box 67

Crystal River, Florida 32629

Charles G. Stephens, Esq. Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

FRANKLIN T. SNOW,

Petitioner,

vs. DOAH CASE NO. 84-2836

OGC FILE NO. 84-0567

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On May 7, 1985, the Division of Administrative Hearings hearing officer submitted his Recommended order on Remand to me for final agency action. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-103.200, all parties were allowed ten days in which to submit exceptions to the Recommended Order.

Respondent Department of Environmental Regulation (the "Department") filed timely exceptions after receiving an extension of time to file such exceptions. A copy of the Department's exceptions is attached as Exhibit B.

BACKGROUND

Petitioner Franklin T. Snow ("Snow") originally requested an administrative hearing to contest the denial of a dredge and fill permit by the Department.

Snow sought to fill an area of his property to provide a buffer zone for installation of a septic tank.

After holding a final hearing in the matter, the hearing officer concluded that denial of the permit would constitute a taking and recommended issuance of the permit with certain conditions.

The Department remanded the matter to the hearing officer, holding that he had no legal authority to determine the existence of a taking and requesting that additional findings of fact be made on two issues. Specifically, the hearing officer was asked to make findings on whether the deposition of fill

would cause water quality violations and whether the installation of a septic tank would result in violations of water quality standards. The order of remand provided that a transcript of the final hearing should be prepared to aid the hearing officer in making these findings.

On remand, the hearing officer found that neither the deposition of fill nor the installation of a septic tank would cause water quality violations.

RULINGS ON EXCEPTIONS

1. The Department's first takes exception to the hearing officer's citation to Section 253.124(2), Florida Statutes, arguing that the permit application was evaluated only under Chapter 403, Florida Statutes. To the extent that the hearing office relied on this provision, the Department's exception is accepted. I would note, however, that the Department has the authority to impose conditions on permits, such as envisioned by the hearing officer, under Chapter 403.

   
   

2. The Department next takes exception to the hearing officer's finding that deposition of fill as proposed by Snow would not cause water quality violations. Having reviewed the record, I might well have reached a different conclusion had I been the hearing officer in this matter. The standard of review by which I must evaluate the hearing officer's order, however, does not allow me to substitute my own findings for his. Instead, I may not reject the hearing officer's findings of fact unless there is no competent substantial evidence in the record to support it. Since my scope of review is thus limited, I must accept the hearing officer's finding on this matter.

   
   

3. Likewise, the Department objects to the hearing officer's finding that the installation of a septic tank would not result in water quality violations. While I agree with the Department that compliance with the rules of the Department of Health and Rehabilitative Services (Florida Administrative Code Rule 10D-6) regarding septic tank systems does not in every case assure that water quality standards will be maintained, I find no basis for overturning the hearing officer in this case.

   
   

4. Finally, the Department objects to the hearing officer's recommendation that additional permit conditions be imposed regarding the removal of organic material from the site prior to deposition of fill. I do not find that this constitutes such a major modification to the proposed project that the hearing officer's recommendations should be rejected.

Accordingly, have considered the record below, it is ORDERED that:

1. The hearing officer's findings of fact on remand are adopted.

   
   

2. The hearing officer's original recommended order entered December 18, 1984, as modified by my order of remand dated January 31, 1985, is hereby adopted.

   
   

3. Within 20 days of entry of this order, the Department shall issue a dredge and fill permit to Snow in accordance with the hearing officer's recommendation and with the additional permit conditions proposed by the hearing officer.

Any Party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 20th day of June, 1985.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-4805

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by hand delivery to K. N. Ayers, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; to Charles G. Stephens, Esquire, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by U.S. Mail to Franklin T. Snow, Route 2, Box 67, Crystal River, Florida 32629, on this 20 day of June, 1985.

Docket for Case No: 84-002836

Orders for Case No: 84-002836