Findings Of Fact Petitioner owns approximately five and three quarters acres of land adjacent to the St. Johns River in Putnam County, Georgetown, Florida. He has 198 ft. frontage on the river. He purchased the land in 1973 and since that time, periodic storms have caused his shoreline to erode in a half-circle configuration for a distance of about 15 to 20 feet landward to a depth of about 2 feet. To the south of his property is a boat marina. Boats utilizing that facility created debris which washed upon his land creating an unsightly condition. Additionally, wave action from the presence of numerous small craft contributed somewhat to the erosion problem. (Testimony of Petitioner, Petitioner's Exhibit 1) Noting that both landowners to the north and south of his property had in existence previously-constructed bulkheads, petitioner determined that he would construct a similar bulkhead or seawall along his former shoreline and then reclaim the land that had been eroded by sand fill. He therefore contacted a contractor to obtain an estimate of the cost of construction. Petitioner denies requesting a pre-inspection of the proposed work by the Army Corp of Engineers and respondent, but the latter's records reveal that such an inspection was made late in 1974. At that time, Petitioner was informed that a permit would be needed to construct the bulkhead, but that his proposed position for it was excessively far waterward of the mean high water line and therefore would be objectionable. Although petitioner specifically denies ever having been told that he needed a permit, it is found that he was so informed by respondent's representative, (Testimony of Petitioner, Scott, Respondent's Exhibit 3) Petitioner proceeded to construct a wooden bulkhead approximately 180 feet long and extending approximately 15 feet waterward of the mean high water line. The fact of construction was noted by respondent's inspector on April 24, 1975, and thereafter on May 12, respondent informed petitioner that he should either apply for a permit or remove all portions of the bulkhead from below the high water line. On November 25,1975, petitioner obtained the conditional approval of the Board of County Commissioners, Putnam County, Florida, for a fill and bulkhead permit, subject to approval of an issuance of permits by the Army Corp of Engineers and the Board of Trustees, Internal Improvement Trust Fund. He thereafter on March 29, 1976, filed his application with respondent for a permit to construct a seawall and fill below the mean high water line with approximately 550 cubic yards of material. (Testimony of Scott, Petitioner's Exhibit 1, Respondent's Exhibit 2,3) Respondent's inspector evaluated the application and submitted his report on March 31, 1976, recommending denial on the basis of significant adverse impacts associated with the project. However, the report stated that the construction of a rip-rap wall conforming to contour of the mean high water line would stabilize the water line and eliminate objections to the project. Specifically, the adverse impacts mentioned in the report were that backfill of the submerged area landward of the existing bulkhead would eliminate a portion of the littoral zone which is a site for nutrient transformation and stabilization. The elimination of the natural shore zone accelerates entrophication rates in the water body and resulting degradation of fish and wildlife resources. (Respondent's Exhibit 1) Respondent's field inspector supervisor informed petitioner of the adverse report and suggested that the bulkhead be removed and rebuilt following the suggestion in the inspector's report. Petitioner did not agree to this proposition and therefore, on October 27, 1976, he was advised of respondent's intent to deny his application. The grounds for denial were that the seawall and proposed backfill would eliminate a tract of submerged land that stabilized sediments, functions in nutrient cycles and helps maintain water quality. Further, it was stated that destruction of this community would impair the ability of the affected submerged habitat to support fish and wildlife. It was further noted that the seawall would create an abrupt discontinuity in the existing shoreline and cause scouring of the littoral community. (Testimony of Scott, Petitioner's Exhibit 3)
Recommendation That the application of petitioner Joseph J. DeMuch be denied. DONE and ENTERED this 2nd day of June, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1977. COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Joseph J. DeMuch Post Office Box 447 Georgetown, Florida 32039
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact Petitioners own two contiguous residential lots, Lots 7 and 8, in Block 436 of the subdivision of Block 111 in the City of Clewiston, Florida, which were transferred to them by warranty deed dated September 27, 1978. There is no issue regarding ownership of both lots. Petitioners obtained a building permit from the City of Clewiston to construct a duplex residence on Lot 7 at a cost of approximately $40,000 to match the one already existing on Lot 8. Lot 8 now contains a 1050 gallon septic tank for the use of that building and in February, 1985, Petitioners applied for a permit to install another 1050 gallon septic tank for the use of the new construction. The tank was to straddle the property line between Lots 7 and 8. No written denial of the permit was ever furnished to Petitioners. The evidence indicates, however, that at some point around that time, Petitioner Gonzalez was advised verbally, by someone in the County Office, that her application was denied because the projected septic tank was to be located at least partly on both lots which is not permissible unless the lots were to be in some way irrevocably tied together. According to the pertinent DHRS rule, a septic tank may not be located within 5 feet of a property line. Petitioners took no action to install the septic tank (although the second structure was constructed). In late July, 1986, Petitioner again applied for a permit to install the 1050 gallon tank in the same location and again the application was denied, this time in writing. The reason for denial given this time included the fact that the additional tank would far exceed the allowable maximum daily sewage flow for the parcel of land in question. Under applicable rules of DHRS, maximum daily residential sewage flow allowable is 2500 gallons per day per acre. The two lots taken together cover approximately 1/4 acre which would permit approximately 625 gallons of sewage flow per day. The existing tank on Lot 8 utilizes or exceeds the daily allowable sewage flow even without the installation of the subject tank which would double the flow. When the second application was denied, Petitioner requested a variance from DHRS which, on October 22, 1986, was denied for the reasons stated in the paragraph next above. The city of Clewiston's current sewage system is presently at full capacity and a moratorium on new hook-ups is and has, at all times pertinent hereto, been in effect. Consequently, Petitioners have not been able to hook up to the city system which is not expected to have available capacity until 1990 or 1991. In the interim, the new construction cannot be occupied since it cannot be connected to the existing septic tank, a new septic tank, or the city sewer system. When the new city system is available, hook-ups of both the new and the existing construction will be mandatory. The current Environmental Health Director, Mr. McDougle, contends that under the current state of the law regarding the location of septic tanks. The county would consider the property owned by the Petitioners as two separate lots even though they were conveyed on the same warranty deed. Therefore, the lots would be 50 x 115 feet each and the proposed installation, which straddles the joint line between the lots, would violate the setback requirements. This defect could be remedied , however , by the construction of a building on the joint line, by a deed restriction preventing the separation of the lots, or by some other approved action which would insure the two lots would always be treated as one. Petitioners have invested their life savings in the construction of the second building ( the one on Lot 7), which, while completed, perforce stands empty. Economically, the current situation is hurting them. There was no evidence to show, even if material, that installation of the septic tank in question would permit occupancy of the building, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioners' application for a permit to construct a 1050 gallon septic tank on Lots 7 & 8, Block 436, Clewiston, Florida be denied. RECOMMENDED this 12th day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987. COPIES FURNISHED: Elvira Gonzalez 601 Saginaw Avenue Clewiston, Florida 33440 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's personal view of the subject premises, the following relevant facts are found: In April or May of 1974, William M. Lyons, as president of Central Development Company, submitted an application for a permit to construct a 20 foot wide, 172 foot long concrete bridge across sovereign land connecting Parker Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot 20, Parker Haven, and Parker Island are owned by Central Development Company. The application contains specific plans for run-off control. In 1975, various studies were performed by representatives of different environmental agencies concerning the proposed project. Representatives from the respondent Department of Environmental Regulation concluded that the bridge should cause no significant direct degradation of or adverse effect upon the water quality of King's Bay. The Director of the Division of Environmental Permitting therefore recommended the issuance of a permit and water quality certification following public notice of the project. In February of 1975, the Chief of Survey and Management of the Department of Natural Resources conducted a biological and hydrographic assessment and found that "the proposed bridge construction would eliminate a limited area of vegetated bottoms but would not, in itself, significantly affect aquatic biological resources," and that "it is improbable that the proposed bridge construction . . . would have significantly adverse hydrographic effects." The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The petitioners herein are citizens and property owners in the area and have requested a hearing on the permit application. The Department of Environmental Regulation forwarded the petition to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearing. Upon the agreement of all parties, the hearing was consolidated with other cases involving permits for projects in the King's Bay area of Crystal River. The prime issue upon which testimony was adduced at the hearing was the effect of the proposed bridge upon navigation. The waters of King's Bay are affected by the ebb and flow of the tide. The bridge is to be approximately four and one-half feet above the mean high water level. The pass between Parker Island and the mainland Lot 20 is approximately 250 feet wide and is relatively shallow, ranging from a low of one foot to a high of approximately four and one- half feet deep, depending upon the tide. Net fishing and gigging in that area are prohibited. Power boats, air boats and small sailboats presently utilize the pass, but large sailboats would not prudently use this pass for safety reasons. Small power boats with windshields and/or covered tops would probably not be able to use the pass during high tide if the proposed bridge at a height of four and one-half feet is constructed. A mean high water survey, per se, was not conducted by or on behalf of the applicant. Rather, the applicant relied upon a bulkhead map which establishes a bulkhead line around Parker Island (Exhibit 9). This document describes mean high water as +1.2 elevation and the metes and bounds description of the bulkhead line is followed by the words "all being along the mean high water line." The King's Bay area and the springs located therein provide a winter home for manatee, an endangered species. During high tides, manatees have occasionally been observed in the pass between Parker Island and Lot 20 on the mainland. While further development and degradation of the area could affect the manatee population, the placement of the bridge itself would not affect the navigation of the manatee travelling in that area, though some would balk or be hesitant around the bridge. One of the greatest hazards to the manatee is injury or even fatality from boat propellers and collisions with fast moving power boats. A boat travelling at five miles per hour should present no problem to the manatee. Several residents owning waterfront lots on King's Bay testified that their view of the open water would be obstructed by the existence of the proposed bridge. The purpose of constructing the bridge is obviously to provide a means of access from the mainland to Parker Island. Parker Island is about five and one-half acres in size and is owned by Central Development Company. Preliminary land use plans have been developed for an environmentally oriented low density subdivision on Parker Island. The conceptual plans include the sale of eleven lots, one-third acre each, for residential purposes. Each lot owner would only be permitted to develop 5,000 square feet of the lot, with the remainder of the lot to be retained in an undisturbed state. The preliminary plans call for underground utilities, no seawalls and a centralized dock. It must be emphasized that these are preliminary or conceptual plans for development of the Island, and Central is in no way bound by said plans. On or about April 5, 1977, the Board of County Commissioners of Citrus County passed a resolution declaring that the area known as King's Bay and the islands located therein was an area of critical habitat, and that any man-made changes in the area be subject to public hearings and comply with all Citrus County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned R-1AA which permits single family dwellings, municipally owned or operated parks and playgrounds, golf courses, certain temporary signs and certain conditioned accessory uses. Central Development Company has not appeared before the zoning board to seek a zoning change or exception for Lot 20. Central Development Company has submitted to the Department of Natural Resources an application for an easement for its bridge construction. This is the subject matter of Case No. 77-960, for which a separate recommended order is being entered.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Department of Environmental Regulation issue to Central Development Corporation a permit to construct a concrete bridge between Lot 20, Parkers Haven, and Parker Island subject to the following conditions: The height of the structure above mean high water level be increased from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and Receipt by the applicant and exhibition to the Department of Environmental Regulation of the required easement or other form of consent from the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use of sovereignty lands, as required by Florida Statutes 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya M. Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida
The Issue The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.
Findings Of Fact Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.) Section 381.272(9) provides in relevant part: No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property. ENTERED this 21 day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 21 day of June, 1991. COPIES FURNISHED: Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040 6200 Courtney Campbell Cswy. Tampa, FL 33607 Sonia Nieves District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Findings Of Fact On December 28, 1984, Respondents Newton and Taylor applied to the Franklin County Public Health Unit for permits authorizing construction of septic tanks and drain field systems on properties they own adjoining the Apalachicola River. Respondent Newton filed two applications for two contiguous lots he owned on the river, while Taylor's application was for a parcel of property approximately 200 feet north of Newton's property, also adjoining the river. Sometime during the following two weeks, Donald Shirah, then environmental health specialist with the Franklin County Public Health Unit, a subdivision of HRS, performed a site evaluation of the sites referred to in the permit applications. The site evaluation performed by Mr. Shirah indicated that on each lot soil composition consisted of gray sand down to 45 inches, with "mottling" at 45 inches and wet soil from 46 inches to 60 inches. The soil composition reflected a wet season high water table lying at 45 inches below the ground surface. The soil report further indicated that the percolation rate of 2 units per minute was "an excellent percolation rate." Based on these tests, Shirah approved the sites for construction of the septic tanks and drain fields and established the points on the property where the septic tanks should be located. Thereafter, in May, 1985, the District II office of HRS, which directs the Franklin County Public Health Unit in matters concerning septic tanks and their installation, directed the Public Health Unit to reevaluate certain septic tank construction permits. Consequently, a letter from the Department went to all permit holders in Franklin County on August 5, 1985, including the Respondents. This letter informed them that their permits were subject to reevaluation. A considerable public furor ensued and, in an attempt to abate the discord and explain its intended action, HRS arranged a meeting with some of its public health officials and the Franklin County Commission on August 14, 1985. Respondent Newton attended this public hearing and exhibited his existing permit to HRS personnel in attendance. E. Charlton Prather, M.D., the state health officer for HRS, in attendance at this meeting, assured Respondent Newton that because his application had been made in 1984, prior to the designation of Franklin County as an "area of critical state concern," (effective July 1, 1985) and prior to the amendments to Chapter 10D-6, Florida Administrative Code, effective February 5, 1985, that his septic tank permits were still valid. Thereafter, Newton arranged with a contractor, to have the septic tanks installed, which was accomplished in approximately late October, 1985. Newton had received a letter on October 11, 1985, from the Franklin County Public Health Unit, instructing him to contact the County Public Health Unit before proceeding with construction of his septic tank systems. Notwithstanding this letter, and in reliance on Dr. Prather's assurance that his permits were valid, Newton proceeded to install his septic tank systems. The installations were completed, and Newton paid the installer for the work on or before November 5, 1985, some two weeks after installation. The installation of the systems came to the attention of the Franklin County Public Health Unit on approximately December 10, 1985, when the septic tank installer informed Gerald Briggs, the environmental health specialist with the Franklin County Public Health Unit, that Newton's septic tank systems had been installed and were ready for inspection. Mr. Briggs gave the final inspection and informed the installer that the tanks were installed in accordance with the specifications contained in the permits. He also informed the installer that he could not issue final approval of the systems because they were located within 20 feet of "marsh land" and that, because he observed standing water on or about the site, the soil conditions were such that the system would not operate properly. Mr. Briggs discussed the situation with environmental health director, John Kinlaw, who decided that the permits should be revoked because they were located within a "wetland" area as defined by the rules of the Department of Environmental Regulation; so called "jurisdictional wetlands." Mr. Briggs made measurements and examination of the soil and water conditions at the site and his measurements revealed standing water at a depth of 12 to 15 inches below the surface, contrary to the findings of Mr. Shirah, who performed the inspection which resulted in the issuance of the permits. Mr. Briggs also observed a "marsh are all visible within 20 feet of the systems characterized by a growth of "marsh grass." Mr. Briggs' inspection was made at a time shortly after the hurricane which struck this area in late November of 1985, characterized by a severe and extensive period of rainfall. Mr. Briggs also observed mottling near the surface of the soil, at all three sites, which indicates water being present intermittently, such that the soil, being alternately wet and exposed to air, oxidizes, leaving a rust colored stain. The septic tanks were installed at about a 5 1/2 or 6 foot depth. There is about 2 to 3 feet of fill sand at the site, below which the installer had to dig to place the tanks. The fill sand is underlain by muck at a depth of 4 to 6 feet below the ground surface. As a necessary part of the installation of the tanks, some of that muck had to be excavated and placed on top of the ground in the vicinity of the tanks and remained on or near the surface of the ground at the time of Mr. Briggs' inspection. The water table exists at a level of approximately 4 feet below the ground surface and when that wet muck was excavated, some of it necessarily remained visible on the surface of the sites in question. The systems constructed on Newton's lots are between 110 and 115 feet from the mean high water line of the Apalachicola River. The site description contained in the applications for the systems stated that the sites were to be 152 feet from the river. Nevertheless, there is no question that the sites are more than 75 feet from the Apalachicola River and that inspector Shirah assured the respondents that their sites were appropriately located. Indeed, he assisted in the location of them and informed the Respondents that the systems met pertinent regulatory requirements. That decision resulted in the issuance of the construction permits. Mr. Shirah established that the septic tank systems met all pertinent criteria concerning setback distances from lakes, streams, canals or other surface water bodies, including the Apalachicola River. Roger Newton, a Respondent and Bob Engle, former director of research for the Department of Natural Resources, both testified concerning their familiarity with the property in question and the general physical description and topography of the land. The general physical nature of the property in 1987 was the same as it was prior to and at the time of the issuance of the permits on January 14, 1985. They established that there was no lake, canal, stream or surface water within 75 feet of the septic tank systems or sites in question. A consent order was introduced into evidence which reveals, as a result of prior litigation in Franklin County Civil Case No. 75-55, that the Department of Environmental Regulation and the Army Corp of Engineers issued permits to the former owners of the property, which authorized them to fill the land at issue to a depth of 150 feet from the bank of the Apalachicola River westward. That fill was placed over the westward portion of this property, including the septic tank and drain field sites in question, to a depth of 2 to 3 feet. This had the result of raising the property to an elevation of approximately 10 feet above the surface waters of the Apalachicola River, which elevation dropped slightly to a road going through the middle of the lots, and remaining level thence westward to a point where the lots terminate in a marsh area. The consent order in evidence does not establish on its face that the fill was actually placed in a jurisdictional wetland area, for purposes of the Department of Environmental Regulation's jurisdiction over the landward extent of state water as defined by the vegetative index contained in Chapter 17-4, Florida Administrative Code. The testimony of a representative of the DER does not establish what dominant vegetational species might prevail on the sites in question which would render those sites within jurisdictional wetlands of the DER. The representative of the DER established that a jurisdictional wetland may be commonly referred to as a "swamp" or "marsh" and that, under prevailing policy of the DER, the fact that fill dirt has been placed on land does not render such land non-jurisdictional. Although this witness described DER's policy that issuance of a dredge and fill permit implies that the land in question is jurisdictional wetland, the fact remains that the face of the circuit court consent order in evidence does not establish that this indeed was jurisdictional wetland at the time the consent order was entered, nor at the present time. The consent order was the result of a settlement of that litigation, in effect a negotiated contract between the parties by which the dredge and fill permit was issued, in 1978. Further, although HRS purportedly has a policy that the term "surface waters," for purposes of the rules cited herein, includes within its ambit "swamps and marshes," the fact remains that in Rule 10D-6.42(38), the admitted 1985 clarification of that policy, surface water is defined as "...a recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank..."(emphasis supplied). The septic tanks in question are not within 50 feet (for purposes of the pre-February 1985 rules) nor even within 75 feet of a swamp or marsh area which is contained within a recognizable boundary or bank. Even if marsh grass, (the species of grass has not been established) was observed growing within 20 feet of the septic tanks in question, it has not been established that was the boundary of a swamp or marsh area or other form of surface water body for purposes of the HRS rules in question. The testimony of the Petitioner's witnesses that marsh grass was observed growing close to the septic tanks does not overcome the showing by witnesses Newton and Engle that the actual water body, consisting of the marsh lying westward of the lots and disposal systems in question, was not within 75 feet of those systems. In addition to the question of the setback distance of the septic tank systems from the surface waters in question, it has not been established that this property is wetland within the DER's jurisdiction. The Petitioner purports to regulate the location of the systems by reference to Chapter 17-4, Florida Administrative Code, whereby the DER, by the use of the vegetative index, defines wetlands or the landward extent of state waters. Thus HRS seeks also to justify revocation of the permits on the basis that these tanks are located not 50 feet or less from a marsh, but rather in it. As found above however, such has not been proven to be the case. Although HRS purports to have a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit application, renders the permit invalid, that situation has not occurred. In fact, it was shown that the fill in question has been on the property much longer than the period of time since the permit application and that the configuration and topography of the property remains the same as prior to December, 1984. Finally, it has not been proven that the surface waters observed standing on the lands of Newton and Taylor, shortly after the extensive rainfall associated with the hurricane in November, 1985, are such waters as contemplated by Rule 10D-6.046(3) or 10D-6.042(38). There has been no proof that this was other than rainfall nor that the water remained on the surface of the land in question for more than 24 hours. See Rule 10D-6.046(3), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the administrative complaints filed by the Department of Health and Rehabilitative Services seeking revocation of the septic tank construction permits issued to Jack Taylor and Roger Newton be dismissed in their entirety. DONE and ORDERED this 5th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0922, 86-1528 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. 4-6. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in its entirety supported by competent substantial evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of material issues presented. 12-15. Rejected as irrelevant and immaterial. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the competent substantial evidence of record. Respondent's Proposed Findings of Fact: 1-6. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of any material issues presented. Accepted, but not in itself dispositive of any material issue presented. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to competent substantial evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. 13-14. Accepted. Rejected as irrelevant and immaterial. Accepted. Accepted. Rejected as constituting a conclusion of law and not a finding of fact. Accepted. Accepted. COPIES FURNISHED: John L. Pearce, Esquire HRS District II Legal Counsel Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 John R. Perry, Esquire Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32320 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mr. Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-0922 ROGER R. NEWTON, Respondent. / DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-1528 JACK TAYLOR, Respondent. / ORDER REMANDING TO THE DIVISION OF THE ADMINISTRATIVE HEARINGS I conclude that this case should be remanded to the Division of Administrative Hearing for a reweighing of the evidence. In Friends of Children vs. HRS, 504 So2d 1345 at 1348 (Fla. 1st DCA 1987), the Court held that where a Hearing Officer erroneously excluded evidence, the case should be remanded for the Hearing Officer to reweigh the evidence and make findings of fact on the basis of all admissible evidence. Returning to the present case, the Hearing Officer did not consider HRS exhibit Y, which he excluded as irrelevant, and the testimony of Larry Olney, an environmental specialist with the Department of Environmental Regulations, on the issue of whether the subject lots were jurisdictional land (for explanation see the rulings on exceptions number nine 9 and 11 to the findings of fact and exception number 1 to the conclusion of law). This evidence is relevant; thus, the evidence as a whole must be reweighed and findings made on whether the 75 foot setback requirement of Section 381.272(6)(c), Florida Statutes (1983) is satisfied. RULINGS ON EXCEPTIONS FILED BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HRS excepts to the findings on page 5 of the Recommended Order concerning the statements of Dr. Prather at a meeting in August, 1985, on the grounds the statements are irrelevant. Exception number one (1) is denied as this finding simply Provides background for the case. HRS excepts to the finding in the paragraph spanning pages 6 and 7, regarding standing water. On this point as well as many others throughout the case the evidence is conflicting The Hearing Officers findings of fact are entitled to the same weight as the verdict of a jury. Gruman vs. State, 379 So2d 1313 (Fla. 2nd DCA 1980). It is the Hearing Officers function to resolve conflicts in the evidence, judge the credibility of witnesses, draw permissible inferences from the evidence, and make findings of fact; and the agency may not reject a finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 (Fla. 1st DCA 1985). The finding to which HRS objects is supported by competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. In exception number three (3) HRS asks that the Hearing Officer's findings regarding "mottling" be clarified. Exception number three (3) is granted. The presence of mottling indicates that water stays at a certain level for a considerable length of time on a regular basis. HRS excepts to the finding on page 7 of the Recommended Order, that "the water table exists at a level of approximately 4 feet below the ground surface." The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 8 of the Recommended Order, that no surface water existed within 75 feet of the septic tank systems in question. The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding that the subject lots were not DER jurisdictional wetlands. This finding cannot be rejected as it was the subject of contradictory evidence. There was evidence that the lots had been filled and were no longer swamp or marsh. This Order requires that the evidence be reweighed. In exception number seven (7), HRS maintains that the subject lands were wetlands and that there was no conflicting evidence on this point. This issue was the subject of sharply conflicting evidence. As Pointed out in exception number two (2), it is the function of the Hearing Officer to resolve conflicting evidence. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 10 of the Recommended Order, that the species of marsh grass which HRS personnel identified as such were not established. Again, this Order requires that the evidence be reweighed. It is noted that several species were identified in HRS exhibit Y which the Hearing Officer ruled was irrelevant. HRS excepts to the Hearing Officer's finding with respect to HRS' reliance on the jurisdictional evaluation by DER authorized by Chapter 17-4, Florida Administrative Code. HRS does not regulate the location of on-site sewage disposal systems by reference to this chapter. Rather, HRS regulates the location of such systems by reference to Chapter 10D-6, Florida Administrative Code, and in this instance reads the terms "swamp" and "marsh", which were undefined in Chapter 10D-6, Florida Administrative Code, in pari materia with the definitions of wetlands in Chapter 17-4, Florida Administrative Code. Exception number nine (9) is granted. A determination by DER that property is wetlands under its rule is highly relevant to whether the property is swamp or marsh under the HRS rule. HRS excepts to the statement in the Recommended Order that HRS has a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit applicant, renders the permit invalid. This is not HRS' policy. This portion of exception number ten (10) is granted. Regarding the Hearing Officer's finding on the extent of surface water, again the evidence was conflicting. HRS objects to the finding in the conclusions of law section, that HRS has "changed" its interpretation of the rules regarding permitting of on-site sewage disposal systems in DER jurisdictional areas. It has been and remains HRS' policy to deny the permitting of such systems in DER jurisdictional areas. This is a sound policy as it is likely to be very unusual that land which is "wetlands" under the DER rule would nevertheless meet the criteria for installation of a septic tank under HRS rules. HRS is obligated to enforce its own rules, Section 120.68(12)(b), Florida Statutes; and if the facts are such that a septic tank is lawful under HRS statutory and rule authority it must be approved. While not applicable to this case, I direct that serious consideration be given to amending the HRS rule to adopt by reference the DER rule. The Apalachicola River is a fragile and irreplacable jewel in Florida's ecological crown. If that river and the bay nourished by it are destroyed it is likely to be caused by the cumulative effect of many small decisions, each of which, individually have an almost imperceptible effect. The enforcement of HRS' septic tank rules will hopefully help prevent loss of the river. Exception number eleven (11) is granted. EXCEPTIONS TO CONCLUSIONS OF LAW HRS excepts to the Hearing Officer's ruling excluding from evidence HRS exhibit Y, the DER jurisdictional report. This exception is granted as the exhibit is highly relevant on the issue of whether the septic tanks were installed in or within 75 feet of marsh or swamp surface water areas. HRS excepts to the conclusion that under the rules prevailing at the time the applications for permits were filed, a 50 foot setback was required. The statutory requirement was 75 feet; thus, the rule was repealed by implication. Section 381.272(6)(c), Florida Statutes (1983). This exception is granted. HRS excepts to the conclusion that HRS was attempting to expand its jurisdiction of wetlands. See the ruling on exception number eleven (11) to the findings of fact. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. HRS maintains that the Hearing Officer concluded that the high water line of the swamp or marsh could not be determined. From a review of the transcript and exhibits it is clear that conflicting evidence was received on the setback issue and that findings were made. This Order requires that the evidence be reweighed. HRS excepts to the conclusion that the permits must be honored because they were not shown to contain knowingly false or misleading information. The decision on these permits must be based on application of the setback law; thus, this exception is granted. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. Based on the foregoing, it is adjudged that this case be remanded to the Division of Administrative Hearing for further proceedings consistent with this Order. DONE and ORDERED this 15th day of February, 1988, in Tallahassee, Florida. Gregory L. Coler Secretary Department of Health and Rehabilitative Services Assistant Secretary for Programs COPIES FURNISHED: John R. Perry, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Michael Ruff Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 16th day of February, 1988. R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32299-0700 (904)488-2281 ================================================================= ORDER DECLINING REMAND =================================================================
The Issue Whether Petitioners are entitled to validation of an alleged determination by Respondent of the landward extent of its dredge and fill jurisdiction over a portion of Petitioners' Property?
Findings Of Fact Under former DER rules, those using the vegetative index adopted June 10, 1975, as amended March 11, 1981, DER's dredge and fill jurisdiction upland of the mean high water line depended exclusively on the landward extent of waters of the state, as evidenced by the dominance of certain species of plants that thrive under wet conditions. Only if these indicator species, in the aggregate, were not dominant along the edge of a water body would DER's jurisdiction end at the shoreline. In 1977, Petitioners Fabre and Jacobs acquired more than 43 acres of unimproved land on Garcon Point, fronting Blackwater Bay in Santa Rosa County. By the time of the hearing, their original development plans had changed, but Petitioners still held the property in the hope of subdividing part of it for resale. At Petitioners' request, somebody from the Pensacola office of the Department of Environmental Regulation (DER) inspected the site in the fall of 1979, probably Michael C. Applegate on October 3, 1979. Petitioners wanted to know what DER permits, if any, would be required in order for a road to be built on the property. In connection with their inquiry, they furnished DER a legal description of the parcel and an aerial photograph of the area. Whether DER also received a site plan at that time depicting the proposed road is not shown by the record. DER's pre-application file on the parcel has probably been destroyed. At least in the minds of some DER employees, there is a clear difference between advising whether a particular project falls within DER's permitting jurisdiction, based on a site visit; and making a jurisdictional determination, which may involved planting flags that are then surveyed or photographed from the air. Petitioner Fabre received a letter from Michael C. Applegate, at the time DER's dredge and fill supervisor in Pensacola, which stated: RE: Approximate 43.48 acre parcel located between State Road 191 and Blackwater Bay, Garcon, Section 14, Township I s, Range 28 w, Santa Rosa County, Florida Dear Mr. Fabre: The above referenced land parcel (legal description enclosed) was inspected by a member of this Department to determine the necessity of obtaining dredge and fill permits for future construction activities on the site. It is the opinion of the staff that since the site is dominated by upland vegetation (oaks, pines, etc.) and has no water bodies connecting to the adjacent B1ackwater Bay that dredge and fill permits will not be required for construction activities within the interior of the property; however, any construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay will require prior permit authorization from this Department in accordance with the provisions of Section 403.087, Florida Statutes, 253.123 and 253.124, F.S. and Section 17-4.28, Florida Administrative Code. Further, should your development of the property result in and [sic] increased stormwater discharge, a stormwater permit may also be required. Joint Exhibit No. 4 In the opinion of DER's expert witness, "along the shoreline" usually means to the edge of open water. In surveying, "shoreline" is a term of art meaning mean high water line. As a practical matter, mean high water line surveys are seldom undertaken because they are complex, expensive and time- consuming. Because Mr. Applegatets letter was undated, Mr. Fabre later asked for a dated reiteration, which DER furnished by copy of a memorandum to the file from DER's William H. Daughdri11, stating: SUBJECT: Review of Undated Correspondence to Frank Fabre [sic] (Baskerville Donovan Engineers) Regarding Proposed Construction on a 43.48 Acre Parcel of Property on Blackwater Bay. On June 23, 1980, I received a call from Mr. Prank Fabre, [sic] during which he requested clarification of a letter written by Mike Applegate in October, 1979. I advised Mr. Fabre that my recollection of the proposed project and subsequent letter was that the excavation was on the interior of the property and not subject to Department of Environmental Regulation's permitting jurisdiction. I cautioned Mr. Fabre [sic] to read the letter carefully and proceed accordingly. On June 24, 1980, I reviewed Mile's letter to Mr. Fabre [ sic] (copy) attached). Mike's letter indicated that no permit would be required for construction activities in the interior of the property; however, construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay would require a valid Department permit. I called Mr. Fabre and advised him of same. Finally, in reviewing Mr. Applegate's letter to Mr. Fabre, I discovered it to be undated. The photograph attached to the letter referenced a date of October 3, 1979. I assume that the letter to Mr. Fabre went out within a week of the inspection and would therefore be properly dated between October 5 and October 10, 1979. Joint Exhibit No. 3. Having received this memorandum, Petitioners filled out a form Army Corp of Engineers/DER joint application for activities in the waters of the State of Florida. They attached an aerial photograph on which a proposed road is shown, lying more than 200 feet inland; and a drawing representing a proposed community building elevated on piling, approximately 50 feet inland of the mean high water line. Joint Exhibit No. 5. On September 24, 1984, copies of the joint form application with attachments were mailed to DER, along with a cover letter stating, "As we discussed, an application fee is not included since D.E.R. does not have jurisdiction based on enclosed letters from Michael Applegate and William Draughdrill [sic]." Joint Exhibit No. 5. In response, W. Richard Fancher, DER's dredge and fill supervisor, wrote Petitioners, on October 9, 1984: I have reviewed your permit application for a fill road leading to Blackwater Bay, along with the accompanying jurisdictional determinations. However, the Department's dredge and fill jurisdiction has changed significantly since Mr. Applegate's and Mr. Daughdrill's determinations, specifically, since October 1, 1984. Unless you have had the old pre- October 1 jurisdiction verified by our Bureau of Permitting in Tallahassee ("grandfathered"), the Department must consider the project under the post-October 1 jurisdiction and permitting standards. Joint Exhibit No. 7 (emphasis supplied.) A DER "completeness summary" also dated October 9, 1984, was included indicating that Petitioners' application was incomplete for failure to pay the application fee, because, "approximate MHW's" had not been labeled, a claim at least partially belied by attachments to the application, and because certain water quality information allegedly had been omitted. Joint Exhibit No. 7. On October 15, 1984, DER received Petitioners' request for validation with supporting papers. Joint Exhibit No. 9.
Findings Of Fact The Petitioner, Millender and Son Fish Company is a wholesale seafood business, with its principle place of business located on the banks of the Carrabelle River in Carrabelle, Franklin County, Florida. The business is owned and operated by Farris G. Millender. Mr. Millender owns the real property on which the business is located and that property is bordered on the north by Avenue "A", also known as State Road 10 which is the main street of the City of Carrabelle. The property is bordered on the southerly margin by the mean high water line of the Carrabelle River. Prior to September 2, 1985, there existed several wooden docks which ran lengthwise along the margin of the Carrabelle River on the waterward boundaries of the Petitioner's property. In the fall of 1985, the Carrabelle area was struck by two hurricanes: the first occurred on September 2, 1985, and the second in November, 1985. These two hurricanes together severely damaged the wooden docks, as well as Petitioner's buildings. In March, 1985, the Petitioner had hired Edwin G. Brown, a registered surveyor, to survey his property. The survey was completed on March 18, 1985, and showed a line along the Carrabelle River identified as "approximate MHW line" (mean high water). The surveyor stated that this line represented the shoreline of Petitioner's property at the time the survey was done. Employees of the Department of Natural Resources verified each end of the Brown survey as being an accurate location of the line of mean high water. That survey also depicted the location of the Petitioner's docks and pilings which were later damaged by the storms. The approximate mean high water line lay landward of the location of Petitioner's existing docks and pilings. The survey also depicted a small concrete bulkhead along part of the boundary line designated as "approximate MHW line" on that survey. On September 10, 1985, after the first of the two hurricanes struck, the Petitioner applied for a city building permit from the City of Carrabelle seeking to construct a seawall at the line of mean high water along that part of his property fronting the Carrabelle River. That permit was granted on September 17, 1985. On September 25, 1985, after Hurricane Elena struck, an emergency permitting team comprised of representatives of the U.S. Army Corps of Engineers, the Florida Department of Environmental Regulation, and the Department of Natural Resources met with Farris G. Millender at his place of business and inspected the hurricane damage. Following that inspection, an emergency authorization permit (APL0029) was issued. That permit described the pre-existing condition of the property as a "functional off-loading seafood dock" and it authorized the Petitioner to rebuild the docks and piers to existing pre- disaster condition. That is, he was authorized to build the docks and piers to the same dimensions, consisting of a "6' x 300' pier, 20' x 45' pier, and 6'-10' x 800' pier and docks behind building." The members of the inspection team saw no evidence of any concrete bulkhead or seawall existing at or near the site of the Petitioner's damaged wooden docks. The Petitioner asked the team members if the permit authorization would allow the construction of a concrete seawall. He was told that the emergency authorization only permitted the building of wooden docks and structures as they had existed previously. He was told that the construction of a concrete seawall would have to be permitted through normal permit application procedures. The emergency permitting process was designed to allow property owners to rebuild structures damaged by the hurricane in the same configuration, as to size, type of material and intended purpose, as those structures which existed prior to the emergency situation caused by the hurricane. On October 11, 1985, Mr. Powell Rivers called Mr. Larry Taylor of the Department of Environmental Regulation and inquired, on Petitioner's behalf, concerning whether bulkheading and backfilling was authorized under the emergency permit. Mr. Taylor informed Mr. Rivers that the emergency permit only authorized repair of the structures as they existed prior to the storm disaster. Mr. Taylor informed him that any additional work or change in the pre-existing installations, such as bulkheading and backfilling, would require a permit which must be obtained through normal permit application procedures. The Petitioner, however, proceeded to construct a concrete bulkhead along the Carrabelle River adjacent to his property and backfilled dirt or soil behind the bulkhead for its entire length. The bulkhead was constructed between September, 1985 and February, 1986. It is approximately 505 feet long and lies 20 to 55 feet waterward of the March 18, 1985, "approximate MHW line" surveyed by Edwin Brown. The area below the mean high water line encompassed by the seawall or bulkhead and attendant fill material is 0.446 acres. In response to a report by the Florida Marine Patrol, representatives of the U.S. Army Corps of Engineers, the Department of environmental Regulation (DER) and the Respondent inspected Petitioner's property on January 24, 1986. The concrete seawall itself was then nearly complete, but the backfilling had not yet been done. The Petitioner was informed at this time that the structure was not authorized under the above-mentioned emergency permit and that state and federal formal permitting was necessary. The Respondent formally notified the Petitioner of the encroachment of the construction in question on state-owned lands, without consent, by letter dated January 28, 1986. The Respondent requested the Petitioner to take immediate action to comply with the Respondent's rules and applicable state law. The Petitioner responded to this notice by stating that his position was that the work was authorized by the emergency authorization issued on September 25, 1985. In this connection, the Petitioner originally testified that Susan Radford, an employee of the Respondent, signed a handwritten note on November 21, 1985, giving Petitioner permission to construct the concrete seawall and related backfilling, below mean high water. The Petitioner recanted that testimony, however, following testimony of Susan Radford, on rebuttal, to the effect that she had not met the Petitioner, had never visited the site and had never signed any form of consent for Petitioner to perform the work in question under the aegis of the emergency permit. Based upon the Petitioner's response to the notice of January 28, 1986, the Respondent conducted an investigation and confirmed that indeed, in its view, the construction was located on-state-owned lands and was not authorized by the emergency permit issued on September 25, 1985. Accordingly, on April 1, 1986, the Respondent notified the Petitioner, with a formal Notice of Violation, that his construction was in violation of Chapter 253 and Rule 16Q- 14.03(1) and (4), Florida Administrative Code. He was ordered to cease and desist any further construction and given 20 days to apply for an "after-the-fact lease" or else to remove all unauthorized materials placed waterward of the referenced mean high water line. The Petitioner thereafter filed a petition for administrative hearing. The materials Petitioner placed waterward of mean high water have not as yet been removed. The Petitioner at a later time, however, applied for an "after-the- fact lease." The Carrabelle River is formed by the confluence of the New River and the Crooked River in Franklin County, Florida. It flows south into St. George Island Sound on the Gulf of Mexico. The river has been variously referred to in times past as the Crooked River, the New River and the Carrabelle River. It is a tidally-influenced water body at the point in question. Its shoreline boundaries are determined at the elevation of mean high water. Historically, Carrabelle and the surrounding environs, including the Carrabelle River area, has been the site of Indian villages, timber harvesting operations and seafood harvesting and processing industries. The river was traveled by boat by a surveyor as early as the year 1806, as far as the source of the New River and Crooked River. In 1840, the river was used as the means of transport for a military expedition. In 1882, the settlement of Rio Carrabelle, now called Carrabelle, had been established and timber was being transported on the river by logbooms or rafts moved by steamboats. Although the mouth of the river was partially obstructed by an oyster bar and sand, the channel contained approximately 4 1/2 feet of water at low tide in 1827 and by 1895 was being travelled by lighters, mail packets, tugs, and other vessels drawing 3' to 5' of water, plying between Carrabelle and Dog Island Harbor. (See Respondent's Exhibits 1, 2 and 3 in evidence.) The existence, location and general size of the New River and Crooked River, and their connection with St. George Sound via the Carrabelle River, has been shown on an 1846 topographic map of the state, as well as on an 1855 survey for the Apalachicola Land Company. The Crooked River was declared navigable by the Florida legislature in 1852, and in 1889, in a Memorial to Congress, the legislature described the importance of the river and the commerce then being shipped from Carrabelle via the river and its mouth. The water immediately adjacent to the Petitioner's property was part of a tidal slough or lagoon running parallel to and slightly north of the main channel of the Carrabelle River, at least as early as 1913. The lagoon was closed from the river on the west end by an intervening strip of land, but opened on its east end into the main channel of the river near Petitioner's property. On the south side of the lagoon there existed a series of marshy islands which were inundated at high tide. The water depth in the slough ebbed and flowed with the tide, but the connection between the east end of the slough and the main river channel near Petitioner's property was always inundated, even at low tide. Since the early part of this century, through 1965, the slough was capable of floating logs and small boats, typically oyster and mullet skiffs, even at low tide. In 1943, when the Petitioner's father purchased the property in question, which the Petitioner now owns, a fish processing house and dock existed along the shore of the property. The Petitioner's father purchased the property for the purpose of operating a wholesale fish business and the Petitioner was able to transport mullet to and from the main channel of the river to the docks along the front of his property in a "mullet skiff," which is a small boat of shallow draft typically used by commercial fishermen in the area. By 1954, the width of the slough along the Petitioner's property had increased and the marsh islands separating it from the main body of Carrabelle River had become smaller. More docks had been constructed along the Petitioner's shoreline and the adjacent property farther up the slough. Boats were able to navigate and moor to these docks. Additionally, since at least as early as 1913 through the present time, the shoreline along the Petitioner's property has been covered and uncovered by the daily ebb and flow of the tides in the Carrabelle River and in the slough. Thus, from the early part of this century to the present time, the waters adjacent to the Petitioner's property have been susceptible to navigation by small boats and skiffs used commercially by oyster and mullet fishermen. In 1965, the U.S. Army Corps of Engineers deepened the main channel of the river and the waters near the Petitioner's property, enabling larger vessels to dock alongside Petitioner's property. The Petitioner and his witnesses testified to substantial erosion which has occurred along Petitioner's shoreline over the years, allegedly as a result of dredging activities of the Corps of Engineers. However, aerial photographs taken by the Department of Transportation in 1953, 1965 and 1977, during periods at or near mean high tide, show a shoreline location and configuration essentially the same as that existing when it was surveyed by Edwin Brown in March of 1985. The Petitioner's wooden pilings, which now form the waterward boundary of the new seawall, were part of a wooden dock which was located at the same place prior to the 1965 dredging activities by the Corps. It was used to dock and unload fishing boats prior to 1965.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a final order be entered by the Respondent, Department of Natural Resources, finding the Petitioner in violation of the authority cited next above and ordering such corrective action as is authorized by Chapter 253, Florida Statutes, and Chapter 18-14, Florida Administrative Code. DONE and ORDERED this 7th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1498 Petitioner's Proposed Findings of Fact: 1-7. Accepted. 8-9. Rejected as contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on Historical Mean High Water: 1-3. Accepted. Accepted generally but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation of testimony, contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation and dis- cussion of testimony. Rejected as constituting a discussion or recitation of testimony and not a finding of fact and is contrary to the Hearing Officer's findings on this subject matter and subordinate thereto. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on the Issue of Estoppel: Accepted, but not dispositive of any material issue presented in itself. Accepted, but not dispositive in itself of any material issue presented. Accepted, but not dispositive of any material issue presented in itself. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-14. Accepted. 15. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 16-27. Accepted. COPIES FURNISHED: Eugene E. McClellan, Jr, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
