STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLYN B. GIFFIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4424

) 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, in Cross City, Florida.

APPEARANCES

FOR PETITIONER: Frances S. Childers, Esq.

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

FOR RESPONDENT: Conrad C. Bishop, Jr., Esq.

P.O. Box 167

411 N. Washington Street Perry, FL 32347

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the application for an OSDS permit by the Petitioner from the Respondent agency named above. The application was denied on the basis that the proposed system would lie beneath the ten-year flood elevation of 21 feet above mean sea level ("MSL") in the flood plain of the Suwannee River and within the regulatory floodway of the Suwannee River, which under the pertinent rules, precludes the placing of any fill which would raise the level of the base flood of the Suwannee River. Upon the denial of the permit application, the Petitioner availed himself of his right to a Section 120.57(1), Florida Statutes, formal proceeding; and this cause was duly transmitted to the undersigned Hearing Officer for formal hearing.

This cause came on for hearing as noticed. The Petitioner presented the testimony of Mr. Ted Biddy, an engineer; and Mr. Allyn B. Giffin, the Petitioner. The Respondent presented the testimony of James Fross and Richard Gavin Hunter, and Mr. Biddy and Mr. Giffin were recalled by the Petitioner upon rebuttal. Petitioner's exhibits 1, 2 and 3 were admitted into evidence, and Respondent's exhibits 1 and 2 were admitted into evidence. The hearing concluded with a stipulation between the parties that the Hearing Officer reserve ruling in the case until such time as notified by the parties that they needed a ruling. This was because the parties had elected to pursue a negotiated settlement focused on the likelihood, in an engineering and environmental sense, raised by Mr. Biddy and Mr. Hunter's testimony, that a mounded system could be devised which would raise the septic tank system proposed above the ten-year flood elevation a sufficient distance to avoid any public health concerns cognizable under Rule 10D-6.047, Florida Administrative Code. Accordingly, at the parties' request, the cause was abated for a long period of time throughout 1991 and early 1992. It developed that the parties did not reach an ultimate settlement, and the cause was reactivated upon advice by Petitioner's counsel that Petitioner wished to obtain a Recommended Order resolving the matter at this stage of the proceedings. Accordingly, the parties were given a period of time to submit Proposed Recommended Orders. The Petitioner submitted a Proposed Recommended Order, which is considered in the rendition of this Recommended Order and which proposed findings of fact are specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River.

   
   

2. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level.

3. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question.

   
   

4. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence.

   
   

5. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those

   circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Initially, it should be pointed out that there is no dispute that the lot, as to its size, as to the setback requirements of the proposed system from public water supply wells, private wells, and surface waters of the State, and other requirements contained in Chapter 381.272, Florida Statutes, and the related Rules contained in Chapter 10D-6, Florida Administrative Code, have been complied with. The dispute to be adjudicated only involves the question of the proposed installation site for the system lying beneath the ten-year flood elevation, which resulted in the denial of the permit application because of the Department's policy of interpreting the Executive Order 90-14, issued by the Governor, as precluding any installation of such septic tank and drain-field- type disposal systems beneath the ten-year flood elevation of the Suwannee River. Additionally at issue is the provision of Rule 10D-6.047(6), Florida Administrative Code, concerning installations of such systems on sites subject to frequent flooding and within the regulatory floodway.

   
   

8. In this regard, Rule 10D-6.043(1), Florida Administrative Code, provides that no OSDS shall be installed without a permit obtained from the Department. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use with an OSDS shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil and water table conditions, and soil drainage and site topography. All of these criteria are met by the subject property and proposed site and are, indeed, undisputed. Rule 10D-6.047(6), Florida Administrative Code, then states that:

   
   

   (6) The final lot elevation of the site of the proposed system installation and the additional unobstructed land referred to in Rule 10D-6.046(4) is not subject to frequent flooding. In addition, the bottom surface of the drain field 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.

   
   

   It should be noted that these Rules were those prevailing prior to April 20, 1992 when some amendments to the subject matter of these Rules were enacted. However, this application arose under the Rules as quoted above, as they relate to the specific disputes in this proceeding.

   
   

9. It should be noted that this property is within the regulatory floodway of the Suwannee River. Therefore, the engineering certification calculation and data is required preparatory to authorization and permitting of a mounded system as proposed, consisting of fill material or construction above the grade of the property at the installation site. Sufficient such engineering proof, under oath, by an engineer certified in the State of Florida has been adduced in this proceeding and is unrebutted. It has been shown that the installation of the mounded system proposed and described by the engineer, Mr. Biddy, supported by his calculations and data in evidence for the Petitioner, will result in no elevation of the base flood. Consequently, there is no impediment to installation of a mounded system for purposes of that relevant portion of the above-quoted Rule.

   
   

10. The Department, in light of the Governor's Executive Order 90-14, which effectively attempted to ban any installation of OSDS's below the ten-year flood elevation of the Suwannee River, has utilized that Executive Order in interpreting its authority under the above-quoted Rule to preclude any installation of such a system beneath the ten-year flood elevation level. The interpretation of the applicability of that Executive Order adopted by the Department in this and similar proceedings has been found in earlier proceedings to effectively abrogate the Department's statutorily authorized discretion to consider applications for such permits or variances from the above-quoted Rule for properties and installation sites lying beneath the ten-year flood elevation. That interpretation by the Department has been determined to be erroneous and to constitute, in effect, a violation of the Separation of Powers Doctrine embodied in the Constitution of the State of Florida. See, John W. and Betty Hollian v. Department of Health and Rehabilitative Services, 13 FALR 725 (1990).

    
    

11. Be that as it may, the issue concerning the applicability of the Governor's Executive Order 90-14 need not be reached in this proceeding. This is because the Petitioner proposes to obviate any problem related to the project site lying beneath the ten-year flood elevation by voluntarily proposing a system supported by competent engineering testimony and evidence, which was unrebutted, which establishes that the proposed OSDS will be elevated a sufficient distance above the ten-year flood elevation and the wet and dry season water table levels to completely obviate any possibility that the sewage effluent involved will pose any threat to the public health, environmental resources and surface or ground water resources of the State. Consequently, the system as proposed by the Petitioner, supported by unrefuted evidence which culminated in the above Findings of Fact, will comply with the subject Rule at issue, quoted above, as that Rule was in force at the time of the application and at the time this hearing was conducted, and has been shown to satisfy the two disputed issues concerning the presence of the site in the regulatory floodway of the Suwannee River and the issue concerning the presence of the site

in the ten-year flood plain of the Suwannee River. Since the evidence and the above Findings of Fact demonstrate that the proposed system will satisfy those permitting criteria, it is concluded that the permit should be granted.

RECOMMENDATION

Having considered 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 therefore,

RECOMMENDED that a Final Order be issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 29 day of May, 1992, in Tallahassee, Leon County, 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 day of May, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424

Petitioner's Proposed Findings of Fact 1-7. Accepted.

Respondent's Proposed Findings of Fact

The Respondent submitted no proposed findings of facts.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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

Conrad C. Bishop, Jr., Esq.

P.O. Box 167

411 N. Washington Street Perry, FL 32347

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 90-004424

Orders for Case No: 90-004424