STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME SILCOX and SHANNON )

SILCOX, )

)

Petitioners, )

)

vs. ) CASE NO. 90-2660

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for hearing before P. Michael Ruff duly designated hearing Officer in Cross City, Dixie County, Florida. The appearances were as follows:

APPEARANCES

For Petitioners: Robert Moeller, Esquire

P.O. Drawer 1419 Cross City, FL 32628

For Respondent: Frances S. Childers, Esquire

Assistant District 3 Legal Counsel 1000 N.E. 16th Avenue

Gainesville, FL 32609 STATEMENT OF THE ISSUE

The issues for consideration in this proceeding concern whether the Petitioners are entitled to an onsite sewage disposal system (OSDS) permit or are entitled to a variance from the permitting requirements in the statutory and regulatory provisions cited below, so as to be authorize to install an OSDS on their property near the Suwannee River, in the town of Suwannee, in Dixie County, Florida. A belated issue concerns whether the Petitioners are entitled to seek a variance from the statutory and regulatory permitting requirements for OSDS installations in view of Executive Order 90-14 issued by Governor Martinez on January 1, 1990, which the Department maintains removes its discretion to consider variance requests by parties who have been denied permits for proposing systems which do not comply with Rule 10D-6.047(6), Florida Administrative Code, as well as the other rules in that chapter concerning permitting of OSDS enacted pursuant to Section 381.272, Florida Statutes. See Section 381.272(8), Florida Statutes and Rule 10D-6.045, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the application by Jerome Silcox and Shannon Silcox (Petitioners) for an OSDS permit for their property, consisting of lots 311 and

312 of Suwannee Shores Addition, No. 2, located in the town of Suwannee, Florida in Dixie County. The Petitioners (applicants) applied for the permit on February 5, 1990. The application is for a new OSDS system for a "stilt house" which would contain approximately 1400 square feet and approximately three bedrooms. The application was ultimately denied on the basis that the subject property was located beneath the ten year flood elevation of the Suwannee River. The applicants were advised by the Department's representatives that, in essence, it would be futile to seek a variance from the permitting statute and rules in order to gain entitlement to install the proposed septic tank and drainfield sewage treatment and disposal system because, by the Department's interpretation of the Governor's Executive Order 90-14, no variance applications could be entertained or granted by the Department because the subject property was located between the ten year flood elevation of the Suwannee River. The Department interpreted that Executive Order to preclude its exercising its discretion to entertain and grant any such variance applications. Consequently the Department advised the Petitioners that they should seek redress in a formal hearing before the Division of Administrative Hearings.

A formal hearing was requested and the cause was ultimately transmitted to the undersigned hearing officer for conducting proceedings in this regard. The cause came on for hearing, as noticed, at which the Petitioners presented the testimony of Shannon Rogers Silcox, James A. Fross, and William Pierce.

Petitioners exhibits 1 through 15 were admitted into evidence. The Respondent presented the testimony of Richard Hunter and David Fisk. The Respondent presented no exhibits. At the conclusion of the proceeding a transcript was prepared and the parties were allowed to submit proposed recommended orders containing proposed findings of fact and conclusions of law. The parties entered into a posthearing stipulation that an extended briefing schedule should apply and an extension of time was accordingly granted for the submission of proposed recommended orders. Those proposed recommended orders have been timely submitted and considered herein. Additionally the proposed findings of fact are specifically ruled upon in the appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioners, Jerome Silcox and Shannon Silcox have applied for an OSDS permit seeking authorization to install a septic tank and drainfield sewage treatment and disposal system on their lots 311 and 312 of Suwannee Shores Edition, NO. 2 subdivision. The property generally is located in the town of Suwannee, Florida in Dixie County near the point where the Suwannee River empties into the Gulf of Mexico. The property is located at "river mile 3."

   
   

2. Prior to purchasing the property the applicants had made inquiry with the Department of Health and Rehabilitative Services (Department)(HRS) concerning the acceptability of using an existing septic tank and drainfield system already on the property. That inquiry was made on or about June 29, 1989. A Department representative for Dixie County, inspected the site and issued an opinion to the Petitioners that the existing septic tank was adequate to accommodate a one bedroom residence. The Petitioner subsequently decided to construct a residence on the property for a residence containing approximately

   three bedrooms. Accordingly they made application through the Dixie County Health Department of HRS for a permit to authorize installation of a 750 gallon septic tank and drainfield treatment and disposal system for the property.

   
   

3. The environmental health officer for the Dixie County Health Department of HRS visited the property on March 15, 1990. After examination of the property the health officer determined that the construction of a septic tank system employing a three foot mound above the natural surface grade of the property would be adequate to serve the residence proposed to be constructed on the lots and would comport with the permitting rules, in his opinion. The health officer required that the applicants submit a survey identifying the elevation of their property at the installation site and required them to secure a determination from the Suwannee River Water Management District (District) concerning the elevation of the ten-year flood plain with respect to the property and particularly the installation site.

   
   

4. The applicants obtained a survey of the property by Hubert H. Raker, a registered land surveyor. He established the benchmark elevation for the installation site and, based upon that elevation, determined that the actual elevation of the surface grade of the property at the installation site was 4.98 feet above mean sea level (MSL). On or about March 7, 1990 the applicants received a "flood elevation information report" from the District. That report stated that the ten-year flood elevation of the Suwannee River at the installation site was 17 feet above MSL. The report also stated that the property was not located within the regulatory floodway of the Suwannee River.

   
   

5. The report of the District concerning flood elevations as well as the elevation survey by Mr. Raker were submitted to the Department's Dixie County office. Thereafter it was reviewed by a different environmental health officer and ultimately the environmental health director for the Department issued a denial letter. The letter denied the permit to install the OSDS because "the bottom surface of the drainfield trench shall not be subject to flooding based' on ten-year flood elevations". Thus the Department takes the position that the bottom surface of the drainfield trench or trenches in the system, as proposed, would be beneath the ten-year flood elevation and therefore in contravention of Rule 10D-6.047(6), Florida Administrative Code. The health officer also opined that the Governor's Executive Order 90-14 had the effect of prohibiting any construction of mounded septic tank and drainfield systems within the ten-year flood elevation as well.

   
   

6. Petitioner's property has a benchmark elevation of 5.48 feet above MSL and the actual elevation of the grade surface is 4.98 feet above MSL. The soils characterizing the proposed installation site are organic soils for six inches beneath the surface and then brown, fine sand down to twelve inches. At twelve inches beneath the surface is an impermeable barrier of lime rock. There was no "mottling" or evidence of damp soils, that relates to the possible level of the wet season water table, above that lime rock strata. There was no other indicia of the water table above that lime rock strata. Consequently, the wet season and normal water table levels are beneath the lime rock strata which occurs twelve inches subsurface. The Petitioners proposed, and Mr. Fross acknowledged iii his testimony, that mounding the system proposed to be installed, by placing it in a filled mound of at least 36 inches height above the existing grade level of the lot would be environmentally preferable to installing a septic tank and drainfield system in the natural surface and subsurface of the lot in question, in terms of better protecting the ground and surface waters in the vicinity of the site from degradation through improperly treated sewage effluent. Since the water table elevation is beneath the lime rock strata, which is twelve inches

   subsurface, if a 36 inch mound were installed on the site for the drainfield trenches or absorption beds, and if appropriate "slight or moderately limited" soils were used in the construction of the mound, a sufficient spatial differential of slight to moderate limited soils would exist for the required 24 inches beneath the bottom surface of the drainfield trenches and above the water table level. Thus a mounded system is a possible alternative, however, the Petitioners did not adduce sufficient evidence of technical data to show that such a system would indeed work properly in terms of having a sufficient, unobstructed land surface surrounding the mound in order to comport with the regulatory requirements in Chapter 10D-6, Florida Administrative Code. However, from the standpoint of having sufficient slight to moderate limited soils beneath the drainfield trenches if such a mound were used, assuming that the appropriate soils were used in construction of the mound and assuming that sufficient lot space is available to include the septic tank itself in the mound at an appropriate height above the existing grade and the limerock strata, it would appear that such a system would work adequately so as to protect the public health, the health of the applicants themselves and to prevent degradation of ground or surface waters. The technical details necessary to show that such a system would correctly operate on these lots, however, was not placed into evidence. There is no dispute, however, that the lot size involved is adequate and the site plan in evidence as Petitioner's exhibit 3 indicates that there is sufficient overall surface space on the two lots in question to accommodate such a mounded system. Thus, if the ten-year flood elevation obstacle to permitting did not exist it would seem that a mounded system could be designed and constructed so as to meet the regulatory requirements of Chapter 372, Florida Statutes and Chapter 10D-6, Florida Administrative Code.

   
   

7. The Petitioners also suggest that an aerobic septic tank-drainfield system might effectively treat and dispose of the sewage effluent at issue in a manner so as to protect public health and the ground and surface waters involved. An aerobic system functions differently from the normal OSDS system, which is anaerobic in nature, because it functions with aerobic bacteria which require oxygen in order to grow and digest and convert sewage effluent into bacteriologically safe effluent. An aerobic system requires the use of an electric motor and pump system in order to force air into the septic tank so that aerobic bacteria can perform their function. The problem with aerobic systems, although they more effectively treat sewage effluent through a septic tank and drainfield system, is that they are subject to mechanical failure and monitoring the mechanical efficiency and proper operation of such a system can be a problem. If the mechanical motor and pump system malfunction, the system will still function as a normal septic tank and drainfield system and thus remove effluent from the residence so that the homeowner will not necessarily have to immediately effect repairs. This can cause inadequately treated effluent to be dispersed into the ground or surface waters or on the surface of the lot, posing a health hazard and potential degradation of ground or surface waters. The evidence offered by Petitioners does not establish how such a system could be made to work effectively and no detailed technical evidence was offered by Petitioners to show what type of such an aerobic system could be installed which would effectively operate at the installation site and under the circumstances where it might be proposed to be used. This is a possible alternative to the conventional subterranean system at issue but would require further evidence, which was not adduced, to show that it can be safely and effectively employed at the site in question.

8. In any event, however, the proposed installation site was not shown to be above the ten-year flood elevation of the Suwannee River. Because of this, neither a mounded system nor an aerobic system has been shown to be capable of being installed at the site and comporting with the rules contained in Chapter 10D-6, Florida Administrative Code and, particularly, Rule 10D-6.047(6), Florida Administrative Code. That is, with either system in mind, it has not been demonstrated that the bottom of the drainfield trenches or absorption beds at issue, as envisioned in this rule, would be above the ten-year flood elevation.

   
   

9. A report prepared by the Suwannee River Water Management District and submitted by the applicants with their application shows a ten-year flood elevation of 17 feet above MSL. The Petitioners adduced the testimony of Mr. William Pierce, an engineer with the District, in their case in chief. Mr. Pierce testified that this 17 foot elevation is indeed the elevation shown in the data contained in the computer model generated and maintained by the District. The information by which this computer model was designed and which resulted in the 17 foot elevation comes from U.S. Army Corps of Engineer data along with data from the Federal Emergency Management Agency (FEMA), the Hydraulic Engineering Center in Davis, California, the U.S. Geological Survey and the Oceanic and Atmosphere Administration. The storm surge component of that ten-year flood elevation came from data generated by a privately contracted study prepared for the federal agencies and supplied to the District. Through the testimony of Mr. Pierce, the Petitioners established substantial doubt as to the accuracy of the 17 foot ten-year flood elevation. Mr. Pierce established that the ten- year flood elevation figure for the Suwannee River decreases as it is measured from the waters of the Suwannee River many miles upstream from the town of Suwannee, when measurement proceeds in a downstream direction. Thus, for instance, the ten-year flood elevation at the town of White Springs, at river mile 177, upstream from the coast, is approximately 81 feet. The ten-year flood elevation at the location known as "Wilcox" some 33 miles above the confluence of the Suwannee River with the Gulf of Mexico is approximately 16 feet. This decreasing ten-year flood elevation figure, as progressively measured downstream toward the coast, is a natural incident to the fact that the elevation of the land surrounding the Suwannee River declines in elevation above sea level as the land elevation is measured going in a downstream or coastward direction. That is, as the surrounding upland elevation declines the waters of the Suwannee River, in a flood event, can spread outward from its channel over a wider area, due to being less confined by higher upland elevations, which results in the flood elevations being lower. Thus one would logically expect that if the ten-year flood elevation at Wilcox, 33 miles upstream, is 16 feet above MSL, then the flood elevation at the town of Suwannee, where the lots in question lie, at river mile 3, would be substantially lower. However, in the District's flood elevation data the element of "storm surge" is additively calculated into the ten-year flood elevation figure. This is designed to take into account surges caused by storms pushing water inland on the Gulf Coast where the Suwannee River makes its confluence with the Gulf of Mexico.

   According to the District's data and Mr. Pierce's testimony this would effectively raise the actual ten-year flood elevation level. The problem with the 17 foot, ten-year flood elevation figure is that Mr. Pierce was unable, in his testimony, to show how and why the storm surge closely correlates with the river flood stage to produce a 17 foot ten-year flood elevation at river mile 3 of the Suwannee River where these lots lie. Moreover, he was unable to establish in his testimony how the District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with a ten-year flood event for the Suwannee River or what they probability might be. Thus the Petitioner's evidence casts substantial doubt that the 17 foot, ten-year flood elevation figure is accurate and comports with

   logic. Thus it can be found herein that the 17 foot ten- year flood elevation figure has not been shown to be accurate. The problem remains however that the Petitioner must establish that the installation site in question does not occur beneath the ten-year flood elevation of the Suwannee River. The Petitioner adduced no evidence to establish what the ten-year flood elevation might actually be nor that the installation site lies above that elevation.

   Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drainfield trenches or absorption beds lies above the ten-year flood elevation so as to show that the installation site is not subject to inundation.

   
   

10. The Petitioner did not formally apply for a variance from the permitting statute and rules, upon having the permit application initially denied by the Department. This is because the Department advised them, in effect, that it would be futile to apply for a variance and to avail themselves of the Department's informal variance procedure because of the effect of the Governor's Executive Order 90-14, entered on January 17, 1990. That Executive Order incorporated recommendation 36 of the "Suwannee River Task Force" report, which recommended that all OSDS installations lying beneath the ten-year flood elevation of the Suwannee River be prohibited and that grant of any permits for OSDS installations be done in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all on- site sewage disposal systems beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department thus takes the position that the entry of that Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and advised the Petitioners to avail themselves of the formal hearing procedure before the Division of Administrative Hearings rather than seek a variance through the Department's own internal variance procedure.

    
    

11. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioners will definitely experience a hardship if a permit or variance is not granted, because of the money expended to purchase the lot which will be largely unusable without the ability to establish a residence thereon by installing an OSDS system, it has not been proven that no reasonable alternatives exist to the installation of a conventional OSDS subterranean type system on the property. The Petitioner proposed installation of a mounded system, which has some promise as a reasonable alternative system, although sufficient evidence was not adduced to establish that such a system would adequately treat and dispose of the effluent in question without causing a public health hazard or degradation of ground and surface waters, as discussed above. Nor was sufficient evidence of a lack of adverse environmental effects, in this regard, as to establish any other type of reasonable alternative approach to treatment and disposal of the expected sewage effluent. Thus one element of the variance criteria cited below has not been met. It has neither been established that the installation of an OSDS system of the conventional subterranean type nor any other type would not have an adverse impact on public health or would not cause degradation of the ground or surface water involved. Thus, to the extent the question of entitlement of a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof, although there is a substantial likelihood that in a variance proceeding, with appropriate proof, the efficacy of the installation of a mounded system in relation to the requirements of the Department's rules could be established, aside from the question of the ten-year flood elevation.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

13. The Petitioner seeks to obtain an OSDS permit for property located in Dixie County, Florida. The Petitioner seeks to change the status quo and, therefore, has the burden to establish the proof necessary to demonstrate entitlement to the OSDS permit. See, Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner did not file an application for a variance because of representations made by the Respondent's personnel that such an application would be futile in light of the Respondent's interpretation of the applicability of the Governor's Executive Order, referenced herein. It is noted, parenthetically, that insufficient proof was offered supportive of the grant of a variance from the permitting statutes and rules in terms of the three variance criteria enunciated in Section 381.272(8), Florida Statutes, and the related rule. That is, no proof was offered to show that no reasonable alternative to a conventional septic-tank drainfield type disposal system exists. In fact, Petitioner showed that a mounded system, characterized by a sufficient depth of appropriate soil beneath the drainfield might be feasible, although sufficient proof of its design and operational characteristics was not adduced. Neither was it established that the effluent from the system proposed to be installed would not adversely affect the health of the Petitioner, the general public nor that it would not adversely affect the quality of the surface or ground waters involved at the site. Thus, had a variance been applied for, it could not be granted based upon the quality of proof offered by the Petitioner.

    
    

14. The basic requirements for an OSDS permit are contained in Section 381.272, Florida Statutes, which provides as follows:

    
    

    (1)...where a publicly owned or investor owned sewage system is not available, the Department of Health and Rehabilitative Services may issue permits

    for construction or installation of on--site sewage disposal systems under conditions as described in this section.

    1. Subdivisions and lots in which each lot has a minimum of at least one-half acre and either a minimum dimension of 100 feet or a main of at least 100 feet off the side bordering the street and the distance formed by a line parallel to the side bordering the street drawn between the two most distant points of the remainder of the lot may be developed with a private potable well and onsite sewage disposal system, provided the projected domestic sewage flow does not exceed an average of 1500 gallons per acre per day, and provided satisfactory drinking water can be obtained and all distance and set back, soil conditions, water table elevation, and other requirements of this section and rules promulgated hereunder can be met.

    2. Subdivisions and lots with public water system may utilize onsite sewage disposal systems, provided there are no more than

       four lots per acre, provided tee projected daily domestic sewage flow does not exceed an average of 2500 gallons per acre per day, and provided all distance and set back, soil conditions, water table elevation and other related requirements which are generally applicable to the use of on--site sewage disposal systems are met."

       
       

15. Rule 10D-6.043(1), Florida Administrative Code, provides that no onsite sewage disposal system shall be installed without a permit obtained from the Department.

    
    

16. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use of an onsite sewage disposal system shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil arid water table conditions, and soil drainage and site topography.

    
    

17. Rule 10D-6.046, Florida Administrative Code describes the requirement for location and installation of an onsite sewage disposal system and Rule 10D- 6.046(7)(a), Florida Administrative Code, provides that each lot upon which an OSDS is installed shall have a minimum area of one-half acre. There is no dispute that the lots are of a sufficient size to comport with this rule.

18. Rule 6D-6.047(6), Florida Administrative Code states that: "(6) The final lot elevation of the site of

    the proposed system installation and the additional and unobstructed land referred to in Rule 10D-6.046(4) is not subject to frequent flooding. In addition, the bottom surface of the drainfield trench or absorption bed shall not be subject to flooding based on ten year flood elevations.

    U.S. Department of Agriculture Soil Conservation Service soil maps, state of Florida Water Management District's data, and federal emergency management agency flood insurance maps are resources that can be used to identify the flood prone areas. Mound systems, sand filters or other systems which require the placement of fill material or construction of above grade structures, will not be authorized within a regulatory floodway unless certified by an engineer registered within the state of Florida that the placement of such fill or structures will not increase the water surface elevation of the base flood. The certification of such systems shall be substantiated by data and method of calculation provided by the engineer and shall be subject to review and approval by the County Public Health Unit."

19. When pursuing a permit application, the applicant must demonstrate entitlement to the OSDS permit based upon demonstrated compliance with the criteria contained in the statutes and rules cited herein. This application was denied specifically because the site of the proposed drainfield system is beneath the ten-year flood elevation parameter for the Suwannee River. The Petitioner failed to prove that the property is located above the ten-year flood elevation so as to entitle Petitioner to an OSDS permit, in accordance with the rule cited last above, and in light of the findings concerning the issue of the ten-year flood elevation made above. Parenthetically, it is noted that the Petitioner did not establish that the appropriate types of soil extended 42 inches or more below the bottom surface of the proposed drainfield trench or absorption bed, in accordance with Rule 10D-6.047(1), Florida Administrative Code, nor that the water table elevation at the wettest season of the year is at least 24 inches below the bottom surface of the drainfield trench or absorption bed. The failure to show compliance with these additional standards for OSDS permitting would constitute an independent basis for denial of the permit, had that basis for denial been raised by the pleadings. In that connection, however, the Petitioner's proof shows that a mounded system might redress these deficiencies, if adequate evidence were shown regarding its design and operational characteristics which was not done. However since the installation site was not established to be in compliance with the ten-year flood elevation standard in Rule 10D-6.047(6), Florida Administrative Code, the sole basis for the initial permit denial, that is a sufficient basis for denial.

    
    

20. As delineated above, the applicant's proof does not support entitlement to a variance from the above-cited permitting statutes and rules. The applicants, for instance, did not demonstrate that reasonable alternatives do not exist for the treatment of the sewage in question and did not demonstrate that the discharge from the individual sewage disposal system proposed would not adversely affect the health of the applicant, members of the public, or significantly degrade the ground or surface waters involved. In fairness to the Petitioner, it should be pointed out that the Petitioner did not come to hearing seeking to prove entitlement to a variance apparently because the Respondent had instructed the Petitioner as to the futility of seeking to prosecute a variance, proceeding through its informal variance board process. This was because of the Respondent's belief in regarding the applicability of the Governor's Executive Order No. 90-14, as precluding any consideration of variance requests.

    
    

21. In that connection, in Executive Order 90-14 the Governor directed the Respondent to implement the Suwannee River Task Force recommendation that OSDS's should be prohibited within the ten-year flood elevation and should otherwise be in compliance with the applicable rules and regulations concerning such systems and their installation. The Respondent has taken the position, therefore, that the Governor's Executive Order, indicates that OSDS's so situated are sources of pollution in the Suwannee River, and that regulations prohibiting the installation of them within the ten-year flood elevation are, ipso facto, designed to protect public health and prevent significant degradation of ground or surface waters. In effect, the Respondent conclusively presumes that if such systems are installed within the ten-year flood elevations they cause degradation or adverse effect on public health and ground or surface waters.

    The Respondent, thus, has conclusively presumed that no such variance applications can be granted.

    
    

22. Section 381.272(8), Florida Statutes, authorizes, along with the related rules enacted pursuant to it, that the Respondent may grant variances from the statutory and rule- embodied permitting requirements for OSDS's. That statutory mandate, under which the related rules were enacted, constitutes

    authority emanating from the Florida Legislature directing the Respondent to allow a procedure whereby variances from strict application of the statutory and rule permitting requirements can be granted, in proper cases, so as to authorize them in cases of unavoidable hardship, balanced with the small likelihood of environmental damage, as enunciated in the statutory provision and rules cited above. Section 381.272(8), Florida Statutes, and the rules enacted under it, clothe the Respondent with discretion in this area and mandate that such a variance procedure be inaugurated and followed for the benefit of the members of the public who seek OSDS permits, have them denied, and, therefore, need an opportunity to demonstrate a hardship entitlement to a variance from the permitting rules, if the above-cited three requirements for proof of entitlement to a variance can be met. This is not an unbridled discretion, and the consideration of variance applications must conform to the three requirements set forth in the statutory section cited last above and repeated in Rule 10D- 6.045(3), Florida Administrative Code. This statutory and regulatory scheme sets up a discreet variance procedure which affords the affected public the opportunity to show the Respondent a hardship basis for avoiding the stricture of a permit denial for noncompliance with the statute and rules pertaining to permitting, itself.

    
    

23. If the Respondent persisted in its present interpretation of the effect of the Governor's Executive Order, it would, in effect, create a conclusive presumption against the grant of any variances for any property and OSDS installation sites owned by an applicant which happened to lie beneath the ten-year flood elevation for the Suwannee River. The Governor's Executive Order, however, cannot legally obviate the mandate of the Legislature that the Respondent must exercise discretionary authority in this area within the bounds of the variance criteria enacted by the Legislature in Section 381.272(8), Florida Statutes, and in the above-cited rule. If the Executive Order is so interpreted by Final Order in this and other similar proceedings, it would constitute a violation of the separation of powers doctrine embodied in the Florida Constitution and, thus, would be an impermissible usurpation of the authority of the legislative branch of government by the executive.

    
    

24. Rather, at most, the Governor's Executive Order, incorporating Recommendations of the Suwannee River Task Force Report, can only serve as guidance to the Respondent in considering variance applications under the legislatively- mandated variance criteria referenced above, as, for instance, a policy basis for determining the materiality of deviations from the technical permitting rule standards for such installations, concerning the overall issue in variance proceedings regarding whether the discharge will adversely affect health or significantly degrade ground or surface waters. The Governor's Executive Order cannot, however, appropriately be used as raising a conclusive presumption having universal application to all such proceedings, dictating that all variances be denied simply because the property or sites to which they relate lie below the ten year-flood elevation of the Suwannee River. All opportunity to show lack of adverse health effects, lack of degradation of ground or surface waters car that no reasonable alternatives exist for the treatment of the sewage effluent in question, as that relates to demonstration of sufficient hardship justifying the grant of a variance, cannot thus be automatically and arbitrarily foreclosed. Since the variance statute in question, and the rules enacted pursuant to it constitute a legislative mandate that that variance procedure be inaugurated and followed by the Respondent, in situations where permits are initially denied by the Respondent, that scheme must be employed and followed until repealed or amended.

25. Although the subject OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood elevation consideration discussed herein, that does not mean that the Petitioner should not be accorded the opportunity to establish entitlement to a variance. Likewise, if the Petitioner, by later application, can demonstrate changed factual circumstances as, for instance, that alternative treatment and disposal systems or methods are available and feasible (which was not done in this case) then a later permit application itself, encompassing demonstration of such changed circumstances, could be entertained.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That a final order be entered denying the application of the Petitioners for an onsite sewage disposal system permit.

DONE and ENTERED this 31st day of December, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991.

APPENDIX

Petitioner's Proposed Findings of Fact:

1 - 15 Accepted.

1. Rejected as irrelevant since this is not a rule challenge proceeding pursuant to Section 120.56, Florida Statutes.

2. - 29 Accepted.

Respondent's Proposed Findings of Fact:

1 - 4 Accepted.

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

2. Accepted.

3. - 13 Accepted.

14 Rejected as subordinate to the Hearing Officer's findings of fact and as not entirely in accordance with the preponderant evidence.

COPIES FURNISHED:

Robert Moeller, Esquire

P.O. Drawer 1419 Cross City, FL 32628

Frances Childers, Esquire HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

JEROME SILCOX and SHANNON SILCOX,

Petitioners,

vs. CASE NO.: 90-2660

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY RESPONDENT

It was not clearly established in this proceeding whether respondent's lot was within the 10 year floodplain of the Suwannee River. Thus, the decision reached in this Final Order is without prejudice to respondent's right to file a new application or seek a variance.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:

In Executive Order 90-14 the Governor concluded that the greatest threat to the Suwannee River is potential development along the river and that only those land uses compatible with maintaining the natural resource values of the Suwannee River basin should be allowed.

The problems with use of septic tanks in the Suwannee floodplain were addressed in the report of the task force adopted in Executive Order 90-14. The extent of the problem can be seen from the following excerpts from page 14 and

19 of the report:

.... there are an estimated 20,000 - 25,000 small tract platted lots in the Suwannee basin, most of which are currently undeveloped....

Septic tanks along the Suwannee River have been implicated in contributing to the high levels of fecal coliform bacteria that have resulted in the closing and restricting of shell fishing in a large portion of Suwannee Sound. ...

Executive Order 90-14 (adopting recommendation 36 of the Task Force Report) prohibits septic tanks (on-site sewage disposal systems) within the 10 year floodplain of the Suwannee River. The Hearing Officer expressed concern about the constitutionality of such a prohibition and suggested that Executive Order 90-14 be considered as advisory only. The Courts have held that administrative agencies lack the authority to adjudicate constitutional

issues. Key Haven vs. Board of Trustees, 427 So2d 153 (Fla. 1982), State Department of Transportation vs. Hendry, 500 So2d 218, 222 (Fla. 1st DCA 1986), Carrollwood State Bank vs. Lewis, 362 So2d 110, 113 - 114 (Fla. 1st DCA 1978). Thus, I conclude that the department should continue to enforce the ban on on-site sewage disposal systems within the 10 year floodplain of the Suwannee River.

Based upon the foregoing, it is

ADJUDGED, that petitioner's application seeking a permit for an on-site sewage disposal system be DENIED.

DONE and ORDERED this 20th day of February 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Robert Moeller, Esquire Post Office Drawer 1419 Cross City, FL 32609

Frances S. Childers, Esquire District 3 Legal Office

1000 N.E. 16th Avenue Gainesville, Florida 32609

P. Michael Ruff Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550 Eanix Poole (HSEH)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 27 day of Feb, 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-002660

Orders for Case No: 90-002660