Judges: DIANE K. KIESLING
Agency: Department of Environmental Protection
Latest Update: May 27, 1987
Summary: Reasonable assurances not given. Cumulative impacts. Contrary to public interests.
86-0818.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SALLIE P. GIBSON, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0818
)
STATE OF FLORIDA, )
DEPARTMENT OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, an administrative hearing was held on May 13, 1987, in Perry, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Ms. Sallie P. Gibson, Pro Se
1003 North Washington Street Perry, Florida 32347
For Respondent: William Congdon, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301-8241
The issue is whether Petitioner, Sallie P. Gibson, is entitled to a permit for dredge and fill for septic tank construction and a permit to construct a house on her property at Ezell Beach, Taylor County, Florida.
Ms. Gibson presented the testimony of James Higman, Jeremy Tyler, and herself. The Department of Environmental Regulation (DER) presented the testimony of Jeremy Tyler and had the Intent to Deny admitted in evidence.
The parties submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Petitioner and her husband jointly own a parcel of property in Ezell Beach, Taylor County, Florida, which lies contiguous to the Gulf of Mexico.
On February 1, 1985, Petitioner made application to DER for a dredge and fill permit and water quality certification to construct a pile supported house with a mounded septic tank and drain field on her property. The 768 sq.
ft. house was to be 32 ft. x 24 ft. and the mounded septic tank and drainfield would have covered a 2,250 sq. ft. area with approximately 300 cu. yds. of fill.
For all practical purposes, Petitioner's property is covered entirely by salt marsh areas dominated by smooth cordgrass (Spartina alterniflora), black needlerush (Juncus roemerianus), salt grass (Distichlis spicata), sea daisy (Borrichia frutescens), and marsh elders (Iva frutescens).
On November 25, 1985, DER issued its Intent to Deny the permit for both the house and the mounded septic tank system. After that date the house was constructed; the septic tank system was not.
DER stipulated at hearing, based upon the particular facts of this case, that it no longer objected to the construction of the house.
The proposed fill would permanently eliminate approximately 2,250 sq. ft. of tidal marsh within the landward extent of the Gulf of Mexico.
This kind of salt marsh provides detritus for support of the aquatic based food chain and provides essential feeding and nursery grounds for fish and acuatic organisms. It is also important in maintaining water quality through the filtration uptake and transformation of pollutants from upland runoff, as a result of the assimilative capacity of the detrital microbial population and benthic micro-organisms, as well as the adsorptive and absorptive capacity of the soils.
Elimination of the tidal marsh and its associated vegetation by filling would reduce the capability of the system to perform its vital functions and therefore the filling associated with the project could be expected to have a long-term detrimental impact on water quality and biological resources.
The proposed filling would further result in water quality degradation by replacing the periodically inundated areas, which help maintain water quality in waters of the state, with uplands containing a septic tank with the potential for adding pollutants to waters of the state.
Based on evidence provided by Petitioner, the proposed project does not provide reasonable assurances that turbidity, nutrient, dissolved oxygen, biological integrity, bacteriologioal quality and biochemical oxygen demand water quality standards will not be violated. To the contrary, the evidence presented by Respondent suggests that the immediate and long-term impact of the filling would result in violation of State Water Quality Standards. The placement of the fill and septic tank would result in turbidity and an overabundance of bacteria and nutrients. This overabundance would lead to depletion of the oxygen dissolved in the water and an increase in BOD, along with the production of algae or some other less desirable plant life than that ordinarily found in a fully functioning salt marsh. The filling would also adversely affect invertebrate and marine animals which negatively impacts the biological integrity of the marsh.
Petitioner did not provide reasonable assurances that the project is not contrary to the public interest in accordance with Section 403.918(2), Florida Statutes. To the contrary, the evidence presented by Respondent suggests that the project will adversely affect certain of those criteria. Public health, safety and welfare would be negatively affected because septic tanks in wetlands become inundated and release improperly treated septage into the environment. Fish and wildlife are negatively affected by eliminating the
habitant of juvenile fish, invertebrates and other creatures which are food chain constituents. Marine productivity will decrease to some degree since the filling will eliminate a productive area.
The proposed project poses cumulative impact concerns. If others similarly situated to Petitioner also placed mounded septic tank systems in close proximity to the Gulf of Mexico, the total negative environmental impact would be very extensive.
The only evidence presented by Ms. Gibson regarding her entitlement to the fill placement necessary for septic tank installation was her testimony that other similar houses in similar areas have septic tanks. She specifically discussed a house built by a Mr. Rogers in Dekle Beach, Florida, which she stated had a similar septic tank system. However, no evidence was presented to show that in fact the Rogers project was similar to this project. In fact, DER presented evidence that Rogers may have installed a septic tank and fill, but in fact Rogers had no permit to do so.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to these proceedings pursuant to Section 120.57(1), Florida Statutes.
The Department of Environmental Regulation has jurisdiction over the construction of the house and mounded septic tank system pursuant to Chapter
403. Florida Statutes and Chapters 17-4 and 17-12, Florida Administrative Code. Jurisdiction is based on the presence of the species set forth in paragraph 3 above as the dominant vegetation on Petitioner's property.
Reasonable assurances have not been provided that the proposed project will not violate water quality standards pursuant to Section 403.918(1), Florida Statutes and Rules 17- 3.121 and 17-12.070(1), Florida Administrative Code. Specifically, Petitioner has failed to alleviate concerns as to turbidity, nutrient, dissolved oxygen, biological integrity, bacteriologial quality and biochemical oxygen demand water quality standards.
Reasonable assurances have not been provided that the proposed project is not contrary to the public interest pursuant to Section 403.918(2), Florida Statutes, and Rule 17-12.070(2). Specifically, the project will adversely affect the public health, safety and welfare, the conservation of fish or their habitats, and marine productivity in the vicinity of the project. No evidence was presented to suggest that the project will positively affect any of the enumerated criteria of Section 403.918(2). In balancing the criteria as is required by that statute, the project not merely fails to provide reasonable assurances that it will not be contrary to the public interest, but the weight of the evidence presented as to the statutory balancing test indicates that the project is actually contrary to the public interest.
This project is also unpermittable pursuant to Section 403.919, Florida Statutes, which requires DFR to consider cumultative impacts of the proposed project in relation to other projects. There is great likelihood that, should Petitioner's permit be granted, land owners similary situated who wish to develop their land would also request a mounded septic tank system. The cumulative impacts of such potential filling would be extremely detrimental to the local water quality and public interest.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final
Order granting Sallie P. Gibson a permit for construction of a house and denying the dredge and fill permit for installation of a mounded tank and drainfield.
DONE AND ENTERED this 27th day of May, 1987, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0818
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sallie P. Gibsons
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(4); 3(4); 4(5); 5(12); and 6(13).
Proposed finding of fact 7 is rejected as irrelevant and immaterial.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, State of Florida, Department of
Environmental Regulation
Proposed findings of fact 1-13 are adopted in substance as modified in the Recommended Order in Findings of Fact 1-13.
COPIES FURNISHED:
Ms. Sallie P. Gibson
1003 North Washington Street Perry, Florida 32347
William Congdon, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301-82419
Dale Twachtmann, Secretary
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Docket for Case No: 86-000818
Orders for Case No: 86-000818
