STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

NANCY K. TAYLOR, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4687

) CEDAR KEY SPECIAL WATER AND SEWER ) DISTRICT and THE STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL REGULATION,)

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on October 23, 1990, in Cedar Key, Florida.

APPEARANCES

FOR PETITIONER: Nancy K. Taylor, pro se

P.O. Box 690

Cedar Key, FL 32625

FOR RESPONDENT: Theodore M. Burt, Esq. (Cedar Key) P.O. Box 308

Trenton, FL 32693

FOR RESPONDENT: William H. Congdon, Esq. (DER) Assistant General Counsel

and Vikki R. Shirley, Certified Legal Intern

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

STATEMENT OF THE ISSUES

This cause came before the Hearing Officer upon the Petition of Nancy K. Taylor submitted in accordance with Section 120.57, Florida Statutes. The Petition was for review of the intent to issue a construction permit to the Cedar Key special Water and Sewer District for the Cedar Key Water Reclaiming Facility in Cedar Key, Florida. Subsequent to the filing of the Petition by the Petitioner; and prior to the hearing, the parties entered into a Stipulation narrowing the issues to the phasing out of septic tanks and the monitoring of the progress of local comprehensive plans to phase out septic systems in coastal areas, flood plains, rivers and the stream banks and above-shallow aquifers and the issue regarding capitalization and fees for future users. Subsequent to

the entering into the Stipulation, the Respondent, Department of Environmental Regulation ("Department"), filed a Motion in Limine and later amended the Motion in order to limit the introduction of certain evidence. The Respondent, Cedar Key Special Water and Sewer District ("District"), concurred in the Motion in Limine. A hearing was held on the Motion in Limine by teleconference on October 22, 1990. At that hearing, the Motion in Limine was denied in part and granted in part. As a result of the hearing on the Motion in Limine, the issues were narrowed to (l) whether the Department has the authority to ensure that the modified facility would have sufficient capacity to serve the District's service area, and (2) whether the Department could require the District to install collection lines to unsewered properties within the service area that are currently utilizing septic tanks.

PRELIMINARY STATEMENT

At the final hearing, the District presented Jack Tyson, a Commissioner on the Cedar Key Special Water and Sewer District Board of Commissioners; and John

1. Hotaling, a Professional Engineer and President of Stearns & Wheler, the consulting engineering firm for the proposed project. The District offered Exhibits CK 1-5, which were received into evidence. The Department did not present any witnesses or exhibits. The Petitioner testified on her own behalf and presented George Sandora, a resident of Cedar Key and a former Task Force Chief of the Cedar Key Citizens Planning Committee for the Comprehensive Plan; Rick Cooke, a resident of Cedar Key and President of the Oyster Association; and Jerry Owen, Water Facilities Administrator with the Northeast District Branch Office of the Department. The Petitioner offered excerpts of a book entitled Wastes in the Marine Environment, as Exhibit NKT 1. All parties submitted proposed findings of fact and conclusions of law, which were read and considered.

   
   

   The Appendix, attached hereto and by reference incorporated herein, states which findings were adopted and which were rejected and why.

   
   

   FINDINGS OF FACT

   
   

   1. The District was created by the Florida Legislature through the enactment of Chapter 63-1569, Laws of Florida, as a political subdivision for the purposes of supplying water and disposing of sewage within the District boundaries as set forth in Section 1 of the enabling act and as indicated on the map offered as the District's Exhibit CK 5.

      
      

   2. Pursuant to Section 4 of Chapter 63-1569, the District has the power to fix and collect rates, to fix and collect charges for connections to the sewer system, and to levy ad valorem taxes on all of the taxable property in the District.

      
      

   3. The District's service area encompasses all of those properties situated within the incorporated city limits of Cedar Key and the unincorporated areas of the four-island group, collectively known as "Cedar Key", as well as approximately 25 square miles (an estimated 20,000 acres) of the mainland in unincorporated Levy County. See District's Exhibit CK 5. The District provides all treatment services to the City of Cedar Key.

      
      

   4. The District's existing facility has a capacity of 100,000 gallons per day ("gpd"), and the average daily flow is 80,000 gpd. However, on weekends, the flow peaks at 189,000 gpd.

   5. In May of 1987, the District imposed a limit on new connections due to capacity-related violations of its operating permit. This limitation is commonly referred to as the moratorium. The moratorium was instituted because of the inability of the existing treatment system to adequately treat waste during periods of peak flow.

      
      

   6. The legislature appropriated through the Department a grant in aid of

      $2.5 million to improve the existing plant. The Department has cost and financing responsibility for use of the funds.

      
      

   7. On January 2, 1990, the District filed an application for a permit with the Department seeking authorization to modify and expand its current 0.100 mgd activated sludge waste water treatment plant to a 0.166 mgd cyclical nitrogen removal extended aeration waste water treatment plant with tertiary filters and high level chlorination, and for the construction of an approximate 200-foot by 250-foot non- public access drip irrigation system for reclaimed water reuse.

      The facility and the site for the proposed reuse system are located in Cedar Key, Florida.

      
      

   8. The Petitioner is a resident of Cedar Key and owns property within the service area of the District, but is not presently connected to the system due to the lack of collection lines in her area.

      
      

   9. There are currently 95 homes utilizing septic tanks in Cedar Key, including the Petitioner's. Of these, 37 are inside the area served by the collection system and have been kept from hooking up by the moratorium. Another

      58 are outside the sewered area, but within the District.

      
      

   10. Septic tanks are a source of non-point pollution which degrades coastal waters and has resulted in the closing of shellfish harvesting areas.

       
       

   11. The expansion and modification, which is the subject of the challenged permit, will increase the capacity of the treatment facility to 166,000 gpd with a peak capacity of 304,000 gpd. The waste can be adequately treated by means of cyclical aeration, filtration and chemical addition and will take care of current weekend peaks.

   12. The design for the expansion and modification is compatible with the City of Cedar Key's Comprehensive Plan adopted on January 23, 1990 and was based upon the population growth projections formulated by the Cedar Key Citizens Planning Committee through the year 2010. These projections reflect an estimated population consisting of 1,028 permanent residents, 303 seasonal residents, and 333 transient residents, for a total of 1,664 residents. Of the increased capacity of the proposed facility, 93% is allocated for the City of Cedar Key. Only 7% is

       available for non-City use.

       
       

   13. The capacity of 166,000 gpd for the proposed facility was computed by multiplying the projected population of 1,664 by the industry standard of 100 gpd per person. Although peak usage was not projected, the proposed facility can handle 1.83 times the average daily flow (304,000 gpd). The current peak weekend flow is 1.89 times the current average daily flow.

       
       

   14. Of the 25 square miles of District service area located on the mainland, approximately 10,000 acres are suitable for development.

   15. The existing facility does not have the capacity to serve the islands adequately, much less the mainland. Although the proposed facility's increased capacity will be sufficient to service the projected growth on the island and the mainland, it would be more economical to build a satellite package plant on the mainland, rather than to transport the waste from the mainland to the island.

       
       

   16. The capacity of the proposed system will benefit in the future by the installation of 6-liter toilets in all commercial enterprises located within the District in accordance with a resolution recently adopted by the District.

       
       

   17. Significant infiltration into existing sewer lines has been identified. Such infiltration increases the gallonage of water treated as it diminishes the amount of sewage which can be treated within the plant's operating limits. Repairs to the existing sewers are planned.

       
       

   18. The modifications and improvements contemplated by the permit will increase daily treatment capacity, decrease

       average daily use, and result in increased capacity to adequately process and treat the wastes generated by the current and future population within the entire District's service area through the year 2010.

       
       

   19. The capacity of the proposed facility is significantly larger than is necessary to treat the waste for the island service area. Where there are existing sewer lines, the lots are virtually built out. Although only a portion of the island service area has collection and transmission lines, there are no plans for construction of additional collection lines.

       
       

   20. Approximately 77% of the homes in the District's service area are connected to the system. As stated above, 95 homes on the islands have septic tanks. Following modification and expansion of the treatment plant, the moratorium will be lifted; and 37 residents in the District's island service area can apply for new connections. There are no plans for expanding service to the other 58 island residents within the District.

       
       

   21. The Cedar Key Comprehensive Plan provides for the priorities for new hookups to the treatment system. Under existing agreements, the District provides all treatment services for the City of Cedar Key. The District has "adopted" the Comprehensive Plan, and it would have to provide services to the City in a manner consistent with the Plan. The Comprehensive Plan provides priorities for new connections to the waste treatment system. These priorities are set out in the Conclusions of Law at page 10 below and are incorporated by references into these Findings.

       
       

   22. The District must obtain approval of the Department prior to authorizing additional connections to the system. Any expansion of the existing collection system of the District will require an additional permit before any new collection systems can be constructed.

       
       

   23. Collection systems, by definition, consist of "sewers, pipelines, conduits, pumping stations, force mains, and all other facilities used for collection and transmission of waste water from individual service connections to facilities intended for the purpose of providing treatment". See Rule 17- 604.200(1), Florida Administrative Code. Collection systems are permitted in accordance with Chapter 17-604, Florida Administrative Code.

   24. Rule 600.630, Florida Administrative Code, indicates that the Department regulates septic tanks in conjunction with the Department of Health and Rehabilitative Services.

       
       

   25. New connections will also be limited by funding constraints since funding of new collection lines falls upon the District and the District's customers. See Comprehensive Plan, page 3A-2I, section 3A-3.2, referenced above.

       
       

   26. There are only a few demands for expansion of the service area from environmentalists. Taxpayers in the District do not want to pay for the expanded collection system. Residents within the District and outside the existing collection system generally do not want to bear the cost of hookup fees.

       
       

   27. Given its taxing powers and ability to charge for its services by the District, various methods of financing expansion of the collection system exist. These include creating a special assessment district in an area without existing collection lines.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   29. The Department has permitting jurisdiction over the

       proposed project pursuant to Sections 403.021(2), 403.061(14), and 403.087(1),

       Florida Statutes, and Chapters 17-3, 17-4, 17- 600, and 17-610, Florida Administrative Code. It also has special responsibilities as supervisor of the grant in aid. See Section 403.1821, et seq., Florida Statutes.

       
       

   30. By Stipulation dated October 17, 1990, the Petitioner withdrew her objections to the issuance of the permit subject to the outcome of the hearing regarding the septic tank and capitalization issues, and dependent upon the addition of two specific conditions to the permit: (1) that the Department require annual testing for enterococcus, and (2) that dechlorination of the effluent be achieved prior to its discharge through the emergency outflow.

       
       

   31. The parties further stipulated at hearing that the District had made a prima facie case for purposes of issuing the permit and had provided the Department with reasonable assurances that the proposed improvements and land application reclaimed water reuse system will comply with the standards and requirements of Chapters 17-600 and 17-610, Florida Administrative Code, and not discharge, emit, or cause pollution in contravention of Department standards or rules.

       
       

   32. The issues remaining after the Motion in Limine are:

       
       

       1. Is the capacity of the plant adequate; and

       2. Does the Department have the authority to condition approval of the permit on expansion of the collection system?

   33. The Department of Health and Rehabilitative Services and the Department of Environmental Regulation have regulatory authority over septic tanks pursuant to Sections 381.261, 403.061, 403.062, 403.081' and 403.804, Florida Statutes.

       
       

   34. The Department of Health and Rehabilitative Services and the Department of Environmental Regulation have concurrent jurisdiction over broken or damaged septic tanks and sewer lines.

       
       

   35. The Cedar Key Comprehensive Plan provides that 93% of future capacity is allocated to the City of Cedar Key. The Comprehensive Plan provides the priorities for new hookups for the treatment system:

       
       

       Priority 1. Existing Structures in Service Areas

       
       

       1A. Existing large volume commercial users presently using marginal septic tanks.

       
       

       1B. Existing low and moderate income residences in a service collection line area and any public use applications.

       
       

       1C. Existing residences on a service connection/collection line. Priority 2. New Construction in Existing Service Areas

       2A. New low and moderate income residences under governmental subsidy programs.

       
       

       2B. New commercial applicants in existing service areas which provide pretreatment.

       
       

       2C. New residential applicants in existing service collection line areas.

       
       

       Priority 3. Non-Service Line Areas

       
       

       3A. New city commercial or residential applicants for connection in an area where no collection lines exist, to the extent that the applicant is willing and able to fund a reasonable portion of the cost of extending collection/connector lines and it is economically feasible for the district to do so.

       
       

       3B. New applicants in the unincorporated portions of

       the islands under the conditions cited in Priority 3A, and only to the extent of proportionate capacity allocated to the unincorporated area at the time of plan adoption.

       
       

       3C. Off-island district service area applicants under

       the conditions cited in Priority 3A, and only to the extent that large volume applications shall not decrease the level of service required for future use in the city.

       Priority 4. DRI or High Volume Users in Any Area

       
       

       4A. Any development of regional impact or application for connection which will exceed a volume equivalent to or greater than three percent (3%) of projected remaining capacity existing at the time of the application, subject to the conditions cited in Priorities 3A and 3C.

       
       

   36. The Department does not have the statutory authority to require the District to remove all existing septic tanks. However, the Department has authority to regulate treatment facilities, collection systems, and disposal systems, as well as septic tanks. Section 604.100(2)(a)&(b), Florida Statutes, states that it is the policy of the Department that applicants consider economic and energy efficient solutions in planning waste water collection and treatment systems. Building an over- sized treatment system is neither economical nor energy efficient. The basis for approving the oversized plant is to provide for future growth; however, this growth cannot come from the area currently served because it is virtually built out. It cannot come from the mainland because transportation of waste to the island is uneconomical. The only growth possible is from expansion of collection service on the islands. The expansion of service into areas without sewers is the third priority and is dependent upon the applicant being willing and able to pay for hookup and it is economically feasible for the District. Evidence indicates that expansion will not occur because it is economically unpopular.

       
       

   37. Given the broad powers of the Department to protect the environment, particularly waters of the State, and the acknowledged detriment to water quality occurring from septic tanks on islands, plus its power to insure that projects are efficient, it is well within the Department's power to condition approval of an oversized plant to regular and planned expansion of the collection system to utilize the approved capacity and eliminate, over time, the hazards of septic tanks.

       
       

   38. The rules cited above authorize the Department to append requirements onto the permit as conditions for approving an oversized plant. These conditions are based upon the Department's stated powers to regulate the size of plants. This project is admittedly oversized. A condition requiring the District to use the over capacity is a reasonable condition within the Department's authority. The Petitioner's concerns are pertinent to consideration of the permit application and that the special conditions for expansion of service are authorized and proper.

       
       

   39. The conditions having been established, the determination of future user fees and financing for the installation of new collection lines is beyond the scope of this proceeding, Council of the Lower Keys v. Charley Toppino and Sons, Inc., 429 So.2d 67, 68 (Fla. 3d DCA 1983), and solely within the purview of the District pursuant to Section 4, Chapter 63-1569, Laws of Florida.

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 the Department enter a Final Order granting the application of the District and issue the permit to expand and modify the waste water treatment facility and to construct the land application reclaimed water

reuse system at the proposed site in Cedar Key, Florida, subject to the following special permit conditions agreed upon by stipulation of the parties:

1. A dechlorination facility shall be installed at the emergency outfall location to dechlorinate the effluent prior to its discharge through the emergency outflow;

   
   

2. Testing for enterococcus will be performed annually at the point of plant outflow, with a baseline test to be conducted prior to plant operation; and

   
   

3. The District be required to expand the collection and transmission lines within the District as follows:

0-5 years: Extend service to those existing

structures not hooked up within the District and city on the islands.

5-10 years: Extend service to new structures

within the District on the islands.

10-15 years: Extend service to structures within

the District off-island.

15-20 years: As required.

DONE AND ENTERED this 14 day of November, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 14 day of November, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4687

Department's Proposed Findings of Fact

1. Adopted as paragraph 7.

2. Adopted as paragraph 1.

3. Adopted as paragraph 2.

4. Adopted as paragraph 3.

5. Adopted as paragraph 8.

6. Adopted as paragraph 21.

7. Adopted as paragraph 4.

8. Adopted as paragraph 11.

9. Adopted as paragraph 12.

10. Adopted as paragraph 13.

11. Adopted as paragraphs 14 and 15.

12. Adopted as paragraph 12.

13. Adopted as paragraph 16.

14. Adopted as paragraph 6.

15. Adopted as paragraph 18.

16-17. Adopted as paragraph 20.

1. Adopted as paragraph 10.

2. Adopted as paragraph 5.

3. Adopted as paragraph 20.

21-23. Adopted as paragraph 21.

1. Adopted as paragraph 22.

2. Adopted as paragraph 25.

3. Adopted as paragraph 22.

District's Proposed Findings of Fact

The proposed findings of fact were unnumbered and

contain multiple findings; however, the only additional finding presented is that there are 564 commercial and residential sewer hookups in Cedar Key. This is true but not necessary to determine the issues.

Petitioner's Proposed Findings of Fact

1. Adopted as paragraph 5.

2. Rejected, as irrelevant.

3. Rejected, as argument.

4. Rejected, as contrary to record.

5. Rejected, as irrelevant.

6. Rejected, as irrelevant.

7. Adopted as paragraph 6.

8. Adopted as paragraph 4.

9. Rejected, as true but not required for a determination of the issues.

10. Adopted as paragraph 9.

11. Rejected, as irrelevant.

12. Best evidence is that the allocation is 93% to City, 7% to unincorporated County.

13. Best evidence is restated in paragraph 3 and 13. 14A. Rejected. District adopted the Comprehensive Plan. 14B. The Comprehensive Plan uses 250,000 gpd; however,

there is no evidence presented in support of this figure. The application estimate of 166,000 was supported at hearing.

14C. It is not required for a determination of the issues.

14D. It is not required for a determination of the issues.

14E. True. Discussed in Conclusions of Law. 14F. Rejected, as contrary to record.

14G. Rejected, as contrary to record. 14H. Rejected, as contrary to record. 14I. Rejected, as contrary to record.

14J. True. Discussed in Conclusions of Law.

14K. Rejected, as contrary to record.

15. Rejected, as contrary to record.

COPIES FURNISHED:

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq. General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Nancy K. Taylor, pro se

P.O. Box 690

Cedar Key, FL 32625

Theodore M. Burt, Esq.

P.O. Box 308 Trenton, FL 32693

William H. Congdon, Esq.

Assistant General Counsel

and Vikki R. Shirley, Certified Legal Intern

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

NANCY K. TAYLOR,

Petitioner,

OGC FILE No. 90-0768

vs. DOAH CASE No. 90-4687

CEDAR KEY SPECIAL WATER AND SEWER DISTRICT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

On November 14, 1990, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit I. Exceptions to the Recommended Order were timely filed on November 29 by both Respondents, Cedar Key Special Water and Sewer District (District") and the Department of Environmental Regulation ("Department"). On December 13 Petitioner, Nancy K. Taylor ("Taylor"), timely filed responses to these exceptions. The matter thereafter came before me as Secretary of the Department for final agency action.

BACKGROUND

In May, 1990, the Department sent to the District a Notice of Intent to Issue a construction permit for the District to expand and modify its existing

0.100 million gallons per day (mgd) activated wastewater treatment plant to a

0.166 mgd cyclical nitrogen removal extended aeration wastewater treatment plant with tertiary filters and high level chlorination, and to construct a nonpublic access drip irrigation system for reclaimed water, both of which would be located in Cedar Key, Levy County. Taylor timely filed a petition for administrative proceedings challenging the project. Prior to the hearing the parties entered into a stipulation narrowing the issues, and the hearing officer further narrowed the issues in response to the Department's motion in limine.

As a result, the issues at the hearing were, as stated by the hearing officer:

1. whether the Department has the authority to ensure that the modified facility would have sufficient capacity to serve the District's service area, and

2. whether the Department could require the District to install collection lines

to unsewered properties within the service area that are currently utilizing septic tanks.

A hearing was held on October 23, after which the hearing officer recommended that the permit be granted, "Subject to the following special permit conditions agreed upon by stipulation of the parties . . . ." Three conditions were listed, the third of which was as follows:

The District be required to expand the collection and transmission lines within the District as follows:

0-5 years: Extend service to those

existinc structures not hooked up within the District and city on the

islands.

5-10 years: Extend service to new

structures within the District on the islands.

10-15 years: Extend service to structures

within the District off-island.

15-20 years: As required

RULING ON EXCEPTIONS

District's Exceition No. 1.

The District first takes exception to the Hearing Officer's finding of fact number 10 "to the extent that it implies that septic tanks are a source of non- point pollution which degrades the coastal waters of Cedar Key and has resulted in the closing of shellfish harvesting area in Cedar Key . ." In my review of a hearing officer's findings of fact, I cannot reject findings that are based upon competent substantial evidence. Section 120.57(l)(b)10., Florida Statutes. Here there was competent substantial evidence to show that septic tanks can be a source of pollution. (E.g., T-143) Therefore, the finding must stand. The hearing officer made no findings, however, that all septic tanks pollute, or that septic tanks are currently causing the Cedar Key contamination that the District argues is "implied" in this exception. I accept the finding only to say that septic tanks can cause pollution in coastal waters, and not to uphold the implication suggested by the District in this exception as to any specific problems in the Cedar Key area.

District Exception No. 2

The District next takes exception to finding of fact number 19 in the Recommended Order, to the extent that it states that "the capacity of the proposed facility is significantly larger than is necessary to treat the waste for the island service area." (Recommended Order p. 7) Once again, the District seems to be concerned about an implication rather than a finding - an implication that would arguably support the disputed recommendation which is the subject of the next series of exceptions. While the term "significantly larger"

is somewhat ambiguous, as is the statement that septic tanks are a source of pollution, the finding is sufficient to be acceptable on its own, without implication or amplification, under the competent substantial evidence test. (E.g., T.34) The exception, therefore, is rejected, with the understanding that the sentence speaks for itself.

District Exception Nos. 3 & 4; Department's Exception

These exceptions will be considered together because they all embrace the same complaint - to the third recommendation of the hearing officer, quoted in the Background Section of this Final Order. The recommendation contained a schedule for how new service should be provided under the expanded wastewater treatment system. The Department asserts- that the parties did not stipulate to this provision, and that it exceeds the Department's lawful authority. The District reiterates this argument in its fourth exception. Its third exception is to the conclusion of law contained on page 12 of the Recommended Order that "it is well within the Department's power to condition approval of an oversized plant to regular and planned expansion of the collection system to utilize the approved capacity and eliminate, over time, the hazards of septic tanks."

While Chapter 381, Florida Statutes, gives permitting authority over individual septic tanks to the Department of Health and Rehabilitative Services, this Department does retain the authority to "consider [septic tank] impacts on water quality when such impacts are being reviewed in conjunction with a Department permit." Cape Cave Corporation v. Department of Environmental Reculation, 498 So.2d 1309, 1312 (Fla. 1st DCA 1987). Cape Cave affirmed a Final Order of the Department, Environmental Confederation of Southwest Florida, Inc., v. Cape Cave Corporation and Department of Environmental Regulation, 8 FALR 317 (DER 1985), in which the Department required installation of a sewage treatment plant as a condition of a dredge and fill permit to enable construction of a residential development in a coastal area. The project developer originally planned to use septic tanks. The hearing officer made specific and detailed findings regarding the harmful impacts on waters adjacent to the project of leachate that would have come from the septic tanks. The findings led him to the legal conclusion that the applicant had "failed to give reasonable assurance that the use of septic tanks would not result in violation of applicable [Department] standards and criteria for water quality." Id. at 383.

Cape Cave is distinguishable from the case now before me. In Cape Cave pollution caused by septic tank leachate was found to be a forseeable secondary impact of permitting the dredge and fill project. Here, by stipulation of the parties the District

had provided the Department with reasonable assurances that the proposed improvements and land application reclaimed water use system will comply with the standards and requirements of Chapters 17-600 and 17-610, Florida Administrative Code, and not discharge, emit, or cause pollution in contravention of Department standards or rules.

(Recommended Order p. 10) There was no finding that any secondary impacts of the project would cause pollution. Indeed, as noted in my response to the District's first exception, there were no specific findings that any existing

septic tanks in the service area were causing pollution. Nor were there findings that removal of existing tanks would eliminate pollution. Therefore, there appears to be an insufficient factual predicate, under a reasonable assurance standard, for me to concur with the third recommendation of the hearing officer. I might note here that I concur in the exception that the record does not reflect any stipulation between the parties on this condition. If there was a stipulation, it was with regard to consideration of the issue at the hearing, not to whether the parties agreed to the condition.

I also have a more general legal concern in concurring with the proposed recommendation. Under Section 403.0881, Florida Statutes, the Department is authorized to issue construction permits for sewage treatment systems "based upon review of a preliminary design report, application forms, and other required information, all of which shall be formulated by rule." To similar effect, see Section 403.051(3), Florida Statutes. There are no Department rules that specifically authorize the Department to condition, in a manner similar to the recommendation before me, the issuance of a sewage treatment plant permit on elimination of septic tanks and limiting extension of service into new areas.

As I have previously noted, there is also no adequate factual basis for a finding that such conditions are necessary for a reasonable assurance determination. Therefore, I cannot conclude that the conditions are supportable as a necessary extension of the more general permitting requirements of Florida Administrative Code Rule 17-4.070, which says that the applicant must provide reasonable assurance that the activity will not "cause pollution in contravention of Department standards or rules." While, contrary to the District's third exception, the Department may have the "power" to address the elimination of septic tanks, I do not find it appropriate to exercise such power in this case. Without both specific applicable rule criteria and specific fact findings addressing such rule criteria, I am very reluctant to impose hookup conditions upon a facility that otherwise complies with Department water quality standards and rules. My reluctance is particularly great where, as here, none of the legal entities that may have caused pollution (unspecified septic tank owners) is the entity applying for the construction permit. Therefore, while not absolutely rejecting the Department's authority to address septic tank hookups, I accept the District's third exception because the hearing officer's conclusion of law is too broadly stated, and I reject the conclusion as it applies to this case. I also accept without qualification the District's fourth exception and the Department's exception.

Therefore, it is ORDERED:

1. The hearing officer's Findings of Fact and Conclusions of Law are approved and adopted into this Final Order except as modified by my rulings on the exceptions.

   
   

2. The Department shall issue to the District construction permit number DC38-174437 to expand and modify the wastewater treatment facility and to construct the land application reclaimed water reuse system at the proposed site in Cedar Key, Florida, subject to the following special permit conditions.

   
   

   1. A dechlorination facility shall be installed at the emergency outfall location to dechlorinate the effluent prior to its discharge through the emergency outflow;

   2. Testing for enterococcus will be performed annually at the point of plant outflow, with a baseline test to be conducted prior to plant operation.

      
      

      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 32399-2400; 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 28 day of December, 1990, in Tallahassee, Florida.

      
      

      STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

      
      

      
      

      DALE TWACHTMANN

      Secretary

      Twin Towers Office Building 2600 Blair Stone Road

      Tallahassee, Florida 32399-2400

      Telephone: (904)488-4805

      
      

      - CERTIFICATE OF SERVICE

      
      

      I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-delivery to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, and to William H. Congdon, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by U.S. Mail to Nancy K. Taylor, P.O. Box 690, Cedar Key, FL 32625, and Theodore M. Burt, P.O. Box 308, Trenton, FL 32693 on this & day of December, 1990.

      
      

      STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

      
      

      
      

      DANIEL H. THOMPSON

      General Counsel

      Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

      Telephone: (904)488-9730

      ================================================================= DISTRICT COURT OPINION

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

      
      

      
      

      NANCY K. TAYLOR,

      
      

      IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

      
      

      NOT FINAL UNTIL TIME EXPIRES

      Appellant, TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 91-277

      DOAH CASE NO. 90-4687

      CEDAR KEY SPECIAL WATER AND SEWERAGE DISTRICT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

      
      

      Appellees.

      / Opinion filed November 26, 1991.

      An appeal from an order of the Department of Environmental Regulation, Dale Twatchmann, Secretary, Department of Environmental Regulation.

      
      

      Nancy K. Taylor, pro se, for Appellant.

      
      

      Theodore M. Burt, Trenton, for Appellee Cedar Key Special Water and Sewerage District

      
      

      William H. Congdon, Assistant General Counsel, for Appellee State of Florida Department of Environmental Regulation.

      
      

      PER CURIAM.

      
      

      After careful review of the record and applicable law, we find no reversible error and affirm the final order of the Department of Environmental Regulation granting a permit to the Cedar Key Special Water and Sewerage District authorizing enlargement of the sewage treatment facilities at Cedar Key.

      Condition number three, 1/ recommended by the hearing officer but rejected by the Department's final order, is neither required by law nor appropriate to the issuance of the requested permit. This condition appears to be consistent with provisions in the Cedar Key Comprehensive Plan, but the Department is neither required nor authorized to deny or modify water pollution permits based on alleged noncompliance with local land use restrictions and long-range development plans, because the issuance of the permit must be based only on the applicable pollution control standards and rules. 403.087, Fla. Stat. (1989). See Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67, 68

      (Fla. 3d DCA 1983). Remedies apart from the permitting scheme are available should the District violate any mandatory requirements in that plan or other plans governing land use and development.

      
      

      AFFIRMED.

      
      

      SHIVERS, ZEHMER, and MINER, JJ., CONCUR.

      
      

      
      

      ENDNOTE

      
      

      1/ The condition reads:

      
      

3. The District be required to expand the collection and transmission lines within the District as follows:

0-5 years: Extend service to those existinQ

structures not hooked up within the District and city on the islands.

5-10 years: Extend service to new structures

within the District on the islands. 10-15 years: Extend service to structures within

the District off-island.

15-20 years: As required.

Docket for Case No: 90-004687

Orders for Case No: 90-004687