The Issue Whether or not Petitioners' application for an on-site sewage disposal system (OSDS) permit should be granted.
Findings Of Fact Petitioners, Paula and David Caywood, are the owners of Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. The subject lot is situated within the ten year flood plain of the Suwannee River Basin. On August 13, 1990, Petitioners filed an application with Respondent to install an OSDS to service a two-bedroom home which they desired to place on the subject lot. As an attachment to their OSDS application, Petitioners introduced a copy of a survey of their lot which was prepared by Walton F. Poppell, a Florida registered land surveyor who holds registration number 2940. The ground elevation for the ten year flood plain for the subject area where Petitioners propose to install their OSDS is 68.0 ft. A review of the land survey presented by Petitioners indicate that the proposed OSDS would be at a ground elevation of 63.8 ft. and when completed would be placed at a ground level of 65.64 ft. or 2.36 ft. below the elevation of the ten year flood plain. Although the Petitioners lot is not subject to frequent flooding, since the surface grade is beneath the ten year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten year flood elevation. Petitioners have not applied for a variance to install their OSDS within the ten year flood plain of the Suwannee River Basin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioners application to install an OSDS to service a two-bedroom home on Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February, 1991. COPIES FURNISHED: David and Paula Caywood 9320 Horizon Drive Springhill, Florida 34608 John L. Pearce, Esquire HRS District II Legal Office 2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to a variance from the permitting rule requirements so as to authorize installation of an on-site sewage disposal system ("OSDS") on his property in Columbia County, Florida.
Findings Of Fact The Petitioner owns certain real property in Columbia County, Florida, in a subdivision known as "Three Rivers Estates, Unit 5, Lot 33". The property is at "River Mile 7" of the Santa Fe River, as measured by the Suwannee River Water Management District; and the subdivision was platted and recorded in 1962. The lot in question is 400 feet by 90 feet in dimensions and is located approximately 300 feet from the surface waters of the Santa Fe River. The applicant/Petitioner desires to install an OSDS merely for the purpose of serving his motor home when he vacations on the lot in question, because the Columbia County Ordinance involved requires that a residential-type septic system be installed and operating before a resident can obtain electric power to his lot, even for use with a motor home. The original permit application and the variance were denied because the property lies beneath the ten-year flood elevation for the pertinent river mile of the Santa Fe River, where the property in question is located, and because the site has only 27 inches of soil between the surface grade and a solid limerock stratum which lies under the area. Only 10 inches of that 27 inches of soil is suitable for use as part of an OSDS, being of a sandy quality. The remainder of the soil is of a dense, impervious, gray clay, which is not suitable as a treatment medium for OSDS's. It is undisputed that the property surface grade elevation at the proposed installation site is 22.66 feet above mean sea level ("MSL"). The ten-year flood elevation at the site is 31.0 feet above MSL. Therefore, the installation site is approximately 8.33 feet below the ten-year flood elevation. Thus, the proposed installation site cannot meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, with regard to the definitional standards in that provision, to the effect that the site in question cannot be subject to frequent flooding, as measured by ten-year flood elevations for the site. There was no showing by the Petitioner that installation of an OSDS at the site, given the above- mentioned soil depth and characteristics, the fact that the property in question is below the ten-year flood elevation, would not pose an adverse effect on the public health, the health of the applicant/Petitioner or his guests or invitees, nor that adverse impacts on the ground or surface waters in the vicinity of the site, in terms of pollution contamination, will not be occasioned by installation of an OSDS on the lot in question, in terms of a conventional, beneath-surface-grade-type system. The Petitioner proposes, however, the use of a "mounded system", which involves the installation of fill soil above the present grade level, so that a sufficient depth of appropriate treatment soil (42 inches) will exist between the bottom of the drain-field trenches and the water table, which in the instant case, means the limerock layer which lies just above the water table. The problem with such a mounded system, however, is that pertinent Department rules contained in Section 10D-6.043-.049, Florida Administrative Code, regarding the slope and basal area configuration of such mounded systems, reveal that the subject lot is too narrow to install a mound of sufficient height to raise the OSDS and the bottom surface of its drain-field trenches above the ten-year flood elevation. This is because, even though a lower mound of approximately 3 feet in height could be installed to raise the drain-field trenches the required 42 inches above the water table, the 3-foot mounded system would still be beneath the ten-year flood elevation. A mound approximately 10'2" high above surface grade would be required to raise the OSDS a sufficient amount to get it above the ten-year flood elevation. It might be said that the proposed 3-foot mound, which would give sufficient treatment soil beneath the drain-field trenches, would constitute only a "minor deviation" from the permitting requirements of Rule 10D-6.047, Florida Administrative Code, regarding the ten-year flood elevation parameter. Thus, in the instant situation, it might be an appropriate alternative system justifying the granting of a hardship variance based upon a minor deviation from the permitting rules. However, the Petitioner did not prove that such would amount to a minor deviation. Specifically, the Petitioner did not establish that the use of such a system would pose no threat or adverse impact on the ground or surface waters at the site involved nor to the public health. While the septic tank and drain fields in such a 3-foot-mounded system might work, the likelihood of frequent flooding would render the system unsafe from an environmental standpoint, as delineated in the rules, because it would be subject to frequent flooding. Because of the threat of frequent flooding by such a low-mounded system, it cannot be said to be a minor deviation justifying the granting of a hardship variance. Further, Rule 10D-6.047, Florida Administrative Code, requires that when a mounded system is to be constructed in a "regulatory flood-way", a certified engineer performing appropriate calculations and other-engineering techniques must establish that the installation of the mound in the regulatory flood-way will not raise the level of the "base flood". Evidence of such engineering calculations, which would show that the base flood level will not be altered by installation of any sort of mounded system, has not been offered in this record, however. This further militates against any finding that installation of even a 3-foot mounded system would constitute a minor deviation from the permitting rules contained in Rule 10D-6.047, Florida Administrative Code. There is no dispute that the property and the site in question lies within the regulatory flood-way of the Santa Fe River. Thus, in terms of the proposed variance, there has been proof that use of a 3-foot mound beneath the ten-year flood elevation, or a mound which would raise the OSDS proposed above the ten-year flood elevation, would only be a "minor deviation" from the permitting rules, which are designed to protect public health and the ground or surface waters involved from pollution. In fact, it was not shown how such an alternative system would insure the protection of the ground or surface waters involved from any adverse impact caused by pollution from OSDS effluent nor how such an alternative system would operate and still safeguard the public health and the ground or surface waters involved.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department denying the Petitioner's application for a variance from the permitting statutes and rules at issue. DONE AND ENTERED this 7th day of June, 1991, in Tallahassee, Leon County, Florida. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991. COPIES FURNISHED: Mr. Sam Power Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Michael S. Kochan 9360 Craven Road Unit 1401 Jacksonville, FL 32257 Frances S. Childers, Esq. Department of HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
Findings Of Fact Oliver DeWitt and Donald F. Richters, employees of the Southwest Florida Water Management District, were called, testified, and identified Composite Exhibit 1, the staff record of this application. Frank applied for a permit after the fact to construct a bulkhead within the mean annual floodplain of Lake Eustis. The investigation clearly revealed that fill had been placed behind a bulkhead built in Lake Eustis. Referring to the drawing marked "A" attached to the application found in Exhibit 1, the area marked in blue by the witnesses is the area filled and bulkheaded by the applicant. The applicant did not appear or present evidence to support its application.
Recommendation The Hearing Officer having considered the law and the facts would recommend denial of the application. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFMD Irene T. Frank Route 2, Box 55 Tavares, Florida 32778
Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 27th day of February, 1981.
The Issue The issue for consideration in this case concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which they own near the Suwannee River in Dixie County, Florida, in accordance with the permitting requirements of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in the proximity of the Suwannee River. The property is described as Lot 38, Highpoint Suwannee Riverfront Estates. The lot in question is 82 feet by 141 feet in size and was purchased in April, 1988 for approximately $5000.00. The lot, and the subdivision it is in, was platted in 1983. On February 21, 1990, the Petitioners made application for an on-site sewage disposal system ("OSDS") permit, seeking to install such a system on this lot in order to be able to construct a vacation cottage on the lot The proposed cottage would contain one bedroom and would have a heated and cooled area of approximately 500 square feet. Upon reviewing the application, the, Respondent informed the Petitioners that they would need to have a surveyor establish the elevation of their lot, and particularly the site of the proposed OSDS installation, as well as to establish, through contact with the Suwannee River Water Management District, the ten-year flood elevation for the property. Accordingly, the Petitioners obtained a survey by `Mr. Herbert Raker, a registered land surveyor of Cross City, Florida. That survey shows a benchmark elevation of 13.09 feet above mean sea level ("MSL") That benchmark elevation is six inches above the actual grade surface of the lot so that the elevation at the proposed OSDS installation site is 12.59 feet above MSL. The ten-year flood elevation for the property is 15 feet above MSL, as established by data from the Suwannee River Water Management District contained in a report which is in evidence as Respondent's Exhibit 1. That flood elevation data was submitted to the Respondent by the Petitioners with the application for the OSDS permit. The property in question is located within the ten- year flood plain of the Suwannee River, and it is also located within the regulatory floodway of the River. On April 24, 1990, after advising the Petitioners of the denial of the OSDS permit application, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding rather than file an informal variance application before the Respondent's own Variance Board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D- 6.47(6), Florida Administrative Code, because the subject property was located within the ten-year flood plain of the Suwannee River and because of the Respondent's interpretation of the affect of the Governor's Executive Order 90- 14, which adopted by reference the Suwannee River Task Force recommendation that all such systems be prohibited within the ten-year flood plain. The Respondent thus declined to exercise its discretion, accorded it in the statute and rule cited hereinbelow, to entertain and consider a variance application. Finally, it is established that the lot in question is not subject to frequent flooding; but because the surface grade is beneath the ten-year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten-year flood elevation. In other respects, the property is a amenable to the installation of an effective OSDS because the wet season water table is 48 inches beneath the surface grade and would be more than 24 inches beneath the proposed drain field. The normal water table is approximately 60 inches beneath the surface grade. Appropriate limited soils are present beneath the first six inches of soil below the surface and consist of fine sand, light brown and brown fine sand, down to 60 inches, which is appropriate for effective subterranean treatment and disposal of sewage effluent. The Petitioners established a definite hardship on their part by the fact that they have paid a substantial sum for the lot and are now unable to develop it unless they receive entitlement to an OSDS or some reasonable alternative. In that regard, no sufficient proof of truly effective, reasonable alternatives was established by the Petitioners. However, they did establish that an anaerobic septic tank and drain field disposal system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria which break down and treat sewage at a faster, more effective rate than does the normal anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal subterranean and anaerobic septic tank and drain field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially, an external electric motor and pump to force air into the system. This is disadvantageous in that, if the equipment suffers a breakdown, then treatment and appropriate disposal of the effluent stops. The untreated sewage can then rise to the surface of the property or otherwise pollute ground or surface waters and potentially cause a public health hazard. Thus, such systems would require inspection periodically to insure that they are in adequate working order because if the mechanical system malfunctions, the system will continue to put effluent through its drain field without adequate treatment. In this circumstance, the occupants of the dwelling served by the system might not notice for long periods of time that it is inoperative because the system will continue to dispose of effluent, but just of an untreated nature. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that such an aerobic system works properly at all times was not established in this record, however. Consequently, the Petitioners failed to establish that reasonable alternatives to the proposed conventional system exist and what they might consist of.
Recommendation Having considered the foregoing findings of Fact, Conclusions of Law, the evidence of record, the carndor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioners' application for an OSDS permit. DONE AND ENTERED this 21st day of December, 1990, in Tallahassee, Leon County, Florida P. MICHAEL RUFF 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 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3112 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Betsy K. Lanier, pro se P.O. Box 238 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure. Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of 13.22 feet above MSL. The ten-year flood elevation for the subject property is 15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer. The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL. The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules. Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below. The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules. In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot. In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time. Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170 Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted but not directly material to resolution of the issues presented for adjudication. Petitioner's Proposed Findings of Fact: (None submitted) COPIES FURNISHED: Desmond Harbroe 4550 N.W. 43rd Street Ft. Lauderdale, FL 33319 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue The issues in this case concern the entitlement of Petitioners to the grant of a variance for the purpose of installation of an onsite sewage disposal system on property located in Dixie County, Florida. See Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact On April 27, 1989, the property which is at issue was deeded over to Diane H. and Charles A. Miller. The property is located in Dixie County, Florida, and contains 0.377 acres. On Nay 23, 1989, Petitioners were granted an easement for purposes of ingress and egress to and from the property. On May 4, 1989, under the signature of Diane H. Miller, a Petitioner in this case, an application was made for onsite sewage disposal at the aforementioned property. A copy of that application form may be found as Petitioners' exhibit No. 3 admitted into evidence. It states that this application is for a new system at lot No. 2, southwest corner, New Pine Landing Subdivision. Reference is also made to the directions to the property and suggestion that the property is located behind Nevin Kean Public Park [sic]. The warranty deed, a copy of which may be found as Petitioners' exhibit No. 1 admitted into evidence, describes the fact that the property is adjacent to Nevin Keen Public Park. The application form points out that this is a new system which is by type of residence "MH." It would contain two bedrooms and a heated or cooled area which is 12 feet by 60 feet. Also attached in Petitioners' exhibit No. 1 is a paper which purports to establish the benchmark elevation of the property as part of what that paper describes as the unrecorded subdivision at New Pine Landing. It speaks in terms of an elevation of 11.36 feet as allegedly surveyed by Herbert H. Raker. That information is hearsay and may not be used for purposes of fact finding in establishing the true elevation in an instance where Herbert H. Raker has not provided this explanation. See Section 120.58, Florida Statutes. As a consequence, there being no other explanation of the elevation, it is unknown. To the extent that it is accepted that there exists a New Pine Landing Subdivision, of which the Miller property is a part, evidence was not presented at the hearing which would establish the date upon which it was platted. Copies of the warranty deed and easement which were admitted into evidence do not indicate that the property is in New Pine Landing Subdivision, nor do they describe the date upon which the subdivision was platted, if ever. From the proof submitted, especially the warranty deed and easement, it does not appear that the parcel in question is part of a recorded subdivision. This coincides with representations by Ms. Virginia Sessions, whose daughter is Diane Miller. Ms. Sessions speaks in terms of this being an unrecorded subdivision and Petitioners' exhibit No. 4 admitted into evidence directed to Jermone Blake of the Dixie Public Health Unit on stationery of Suwannee River Water Management District refers to this location as New Pine Landing. Under the circumstances it is accepted that this parcel lies within an unrecorded subdivision known as New Pine Landing. There was a period of time during which the applicants did not receive a response from Respondent concerning the request for a permit to install the onsite sewage disposal system. Ms. Sessions testified that her daughter made a phone call to the Respondent to determine the status of the application and that the daughter reported that someone affiliated with Respondent said that Respondent would be getting back in touch with the applicants. This report by Mrs. Sessions of her daughter's remarks concerning a purported conversation between the daughter and the Respondent's employee is hearsay and may not be used to decide whether in fact there was a communication between the daughter and the Respondent. See Section 120.58, Florida Statutes. In any event, Mr. Blake communicated with Mrs. Sessions and informed Mrs. Sessions that the Petitioners would not be given a permit for installation of an onsite sewage disposal system and would need to file a request for variance from the requirements to obtain permission to install the onsite sewage disposal system. In furtherance of that instruction, the appropriate fee was paid and a form executed by Mrs. Sessions requesting a variance. A copy of that variance request may be found as Petitioners' exhibit No. 8 admitted into evidence. The date of that application was July 13, 1989. The form makes reference to the authority of the agency to examine the request for variance as being set forth in Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. The form points out to the applicants that the variance may not be granted unless: The Department is satisfied the stated hardship was not caused intentionally by the applicant. A reasonable alternative sewage treatment method is not available The sewage discharge will not adversely affect public health and/or significantly degrade ground or surface water quality. The application for variance makes reference to the New Pine Landing Subdivision. It states that the parcel in question is lot No. 2, and makes reference to a book and page number and a plat number and purported page number associated with the plat number allegedly pertaining to the subdivision. Competent evidence was not presented to establish that these references found on the application were correct portrayals of the recordation of the subdivision and plat number. See Section 120.58, Florida Statutes. Again, this leaves the record incomplete as to any recordation of the existence of the subdivision and a plat number associated with that subdivision. The application describes the reason for requesting a variance as related to the fact that the lot is in a flood area where more than 36 inches of fill dirt may not be added. Proof was not submitted at hearing concerning the exact nature of the property in question; however, Mrs. Sessions as the person who had applied for the variance and has a layperson's knowledge of the property in question, is entitled to depict the general nature of the property and her explanation that it is flood prone is accepted. How much fill dirt may be added to the property was not established by competent evidence. Under the instructions for the owner associated with the application for the variance, the applicants are told that they should provide any supportive material and documents to the County Health Unit in Dixie County, Florida. This entails submission of a site plan, site location and reference map. These details were not submitted with the application as far as the record reveals. More importantly they were not provided at hearing. The instructions call upon the applicants to satisfy the terms of Section 381.272(2) and (3), Florida Statutes, and to state the reasons for requesting the variance under the requirements of Chapter 10D-6, Florida Administrative Code. The applicants were told to explain why variance from the requirements would relieve or prevent excessive hardship and to provide technical documentation to support the supposition that a variance would not likely result in pollution or impairment to public health. Written on the form submitted is the suggestion that this project is a variance from the requirements of Rule 10D-6.047(6), Florida Administrative Code, related to the 10 year flood event. The application points out the size of the parcel as being approximately .38 acres and the sewage flow anticipated is 250GPD. It points out that the drinking water supply is a private source. It points out that the type of residence is a single-family retreat that has two bedrooms. It describes the proximity to sanitary sewer as 13 miles and to public water supply as 7,500 feet. The distance to private wells is said to be 775 feet and to a stream 7,400 feet. The proposed system that the applicant has in mind is a septic tank and drain field that is mounded. The system is referred to as a subsurface septic tank and drain field with six inches of fill sand. Although the application describes that the water table during the wettest season of the year is below the ground surface by 36 inches and at the time testing was done that the water table was below the ground surface and "not found 72 inches," competent proof of these assertions was not presented in the course of the hearing. The description of the type of soil as being sand is accepted. Nothing more was revealed about the soil characteristics. The application points out that the 10 year MSL flood elevation is 14 feet and that the property elevation MSL is 11 feet. Competent evidence of those facts was not presented at hearing. Nor was there competent evidence of the adequacy of the surface water drainage at the property site. The application form points out that the Dixie County Health Unit recommended approval of the variance on July 13, 1989. That says that the property is in the Suwannee River floodway where maximum fill allowed is 36 inches and that mounds are subject to erosion and moving water. It is accepted that the property is in the area of the Suwannee River. The other facts that are suggested in these summary remarks were not established by competent evidence. The form reminds the county health unit that procedures associated with the variance requests must comply with Section 120.60, Florida Statutes. The county staff is instructed to list additional details in terms of the site evaluation and tell why standards cannot be met if that is the opinion held. It reminds them to reference the specific sections within Chapter 10D-6, Florida Administrative Code, and Section 381.272, Florida Statutes, that are involved with the variance request and state reasons why a recommendation of approval or disapproval is being made. The completed form is then submitted to the Environmental Health Program ten days prior to any scheduled Variance Review Board meeting date. Substantiating documents must be submitted in place of or in addition to the data just described to include the application for septic tank permit, denial letter and engineering report and USDA Soil Conservation Service reports. Based upon this record an engineer's report has never been submitted. More particularly, an engineer or acceptable substitute did not present evidence supporting the variance. Mrs. Sessions received an August 18, 1989 letter from Richard G. Hunter, PHD, Assistant Health Officer for Environmental Health. A copy of this may be found as Petitioners' exhibit number 5 admitted into evidence. It requests that additional information be provided to the Dixie County Public Health Unit associated with the date that the lot was subdivided from lot 2, if it was subdivided at one time. Mrs. Sessions testified that she responded to this request. The exact information that she provided was not presented at the hearing. Consequently, it is not clear whether the information that was presented satisfied that review group. Within the correspondence of August 18, 1989, is mention of the fact that the review group will consider the variance request at a September 7, 1989 meeting in Tampa, Florida, assuming that the information that had been requested was provided by August 28, 1989. On November 29, 1989, Kevin M. Sherman, PHD, M.P.H., Environmental Administrator, Environmental Health Programs wrote to Mrs. Sessions to advise her that the application for variance had been placed on a meeting agenda for December 7, 1989 in Sarasota, Florida. A copy of this may be found as Petitioners' exhibit No. 6 admitted into evidence. This is seen as an acceptance of the application for purposes of making a decision on the merits. Neither Petitioners nor someone representing their interests attended the December 7, 1989 meeting in Sarasota, Florida. On December 13, 1989, Dr. Hunter wrote to Mrs. Sessions to advise her that the request for variance had been rejected. A copy of this letter of rejection may be found as Petitioners' exhibit No. 7 admitted into evidence. It reminds the applicants that the purpose of the grant of a variance is for relieving or preventing excessive hardships where it can clearly be shown that the public health will not be impaired and where pollution of groundwater or surface water will not result. The basis of rejection was that the request was not considered to be a minor deviation from minimum requirements specified in Rule 10D-6.047(6), Florida Administrative Code. The letter of rejection advised Petitioners of their right to a hearing. That request for hearing was made on January 11, 1990, within the 30 days allowed for making such requests. Testimony presented by Alma Walker did not establish the nature of the New Pine Landing Subdivision and whether it had been recorded or not and the date that the property may have been platted. Mrs. Walker talked with a person within the Dixie County Health Unit whose name is Frost. This gentleman told Mrs. Walker that the case had been referred for a hearing and that the applicants should continue to pursue that matter. His secretary made some remark to Mrs. Walker concerning the impression that six inches of fill is less than allowed for septic tanks. This representation is not considered to be competent evidence as to the amount of acceptable fill. Mrs. Walker's comments concerning the applicants seeking a new benchmark from a surveyor and the suggestion that the surveyor gave this information to Mr. Frost is hearsay and does not establish the fact that a surveyor presented a new benchmark for the property to Mr. Frost. Nonetheless, following this circumstance Mrs. Walker spoke to Mr. Frost about the survey to establish benchmark and was told by Mr. Frost that the applicant still could not get a permit because of not meeting the requirements of the 10 year floodplain. Petitioners' exhibit No. 4 admitted into evidence attempts to describe the impression of the application for a variance as held by the Suwannee River Water Management District. It is hearsay and may not be used to find facts in that competent evidence about the opinion of the Suwannee River Water Management District as to the acceptability of the variance request was not presented at hearing.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which denies Petitioners request for a variance from the requirements to obtain a permit for onsite sewage disposal. DONE and ENTERED this 8th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 8th day of June, 1990. APPENDIX CASE NO. 90-1204 The following discussion is made of the fact finding suggested by the parties. Petitioners' Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is subordinate to facts found with the exception of suggestion that a benchmark elevation was determined. No competent evidence was presented to establish the benchmark elevation. Paragraph 3 is subordinate to facts found in the sense that it is acknowledged that an application for onsite sewage disposal system permit was made. Proof was not established that all necessary information required by law was presented with the application. Paragraph 4 with its discussion of the significance of information provided by the Suwannee River Water Management District is not accepted to the extent that it attempts to describe the entitlement to a permit based upon remarks made by the Suwannee River Water Management District. The issue of whether adequate reasons were given for denying the permit application was not noticed for consideration at the final hearing and to the extent that that issue has any relevance in considering the variance request Petitioner's have failed to demonstrate any prejudice to their cause in pursuing the variance request. Paragraphs 5 and 6 are subordinate to facts found. The indication in paragraph 7 that Petitioners were having to reapply for a variance does not coincide with the understanding of this process in which the facts tend to establish that the initial variance request was processed to conclusion. In Paragraph 8 the idea of reapplication is rejected as is the contention that there was a failure in the explanation as to the reasons why the variance was denied. The explanation was adequate to notice the Petitioners of the reasons which the agency had in mind in denying the variance application. Respondent's Facts Paragraphs 1-7 are subordinate to facts found. Paragraph 8 constitutes a conclusion of law. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esquire Department of Health and Rehabilitative Services District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32601 Michael Smith, Esquire Post Office Drawer 579 Perry, FL 32347 =================================================================
Findings Of Fact Petitioner owns property adjacent to Sims Creek located in Palm Beach County, Florida. Petitioner is undertaking a development on the property. The development was initiated by the Great American Anvil Corporation, the previous owner of the property. The development as originally conceived included construction of a dock in Sims Creek. The Great American Anvil Corporation applied for a permit to the State Board of Trustees of the Internal Improvement Trust Fund. On February 5, 1975, a permit was issued to allow Great American Anvil Corporation "to construct eight (8) finger piers each twenty feet long by two feet wide, and three triangular piers twenty feet long by five feet wide at the base and two feet wide at the top" in Sims Creek. The permit was issued for construction of the docking facility and by its terms expired on a specified date. The permit was never assigned or transferred to Petitioner. The permit has expired, and is no longer effective. A bulkhead has already been constructed along Petitioner's property. Petitioner is seeking a permit which would authorize it to construct a perimeter dock which would run along the approximately three hundred foot border of Petitioner's property and Sims Creek, and extend four feet over Sims Creek. Petitioner is also seeking to construct ten piers out from the perimeter dock, each of which would be twenty-five feet long and two feet wide. Mooring spaces would be provided for sixteen or more boats The perimeter dock and the ten piers would be supported by pilings which would be placed in the creek bottom. The permit application provides that the pilings would be installed by a process called "jetting". Sims Creek is a natural, navigable tributary of the Loxahatchee River. The mouth of Sims Creek on the Loxahatchee River is located in fairly close proximity to where a canal known as the "C-18 Canal" empties into the river. Sims Creek is a winding stream which has been relatively undisturbed by development. Petitioner's project is located approximately one thousand to fourteen hundred linear feet upland from the mouth of the creek. Approximately five hundred feet upland from the proposed docks, the creek veers sharply to the south and becomes significantly more shallow. The creek is influenced by both estuarine and tidal flows. During high tides, water flows from the Loxahatchee River upland into the creek. During low tides the water flows out of the creek into the Loxahatchee River. In addition, water generally drains through the creek into the river. The creek has good flushing characteristics. The "residence time" for water in the creek is typically one day, except in isolated pockets along the shoreline, and in deeper basins which occur in the creek. The area of the creek where the proposed docks would be constructed is a basin area. Waters reach a depth of eight feet. This area of the creek is stressed in water quality terms. Dissolved oxygen values measured at the site are in excess of Department standards. This is the result of the depth at the location; the oozy, organic bottom soils; and the fact that a storm water outfall and a sewage outfall enter the creek on the opposite side from Petitioner's property. The creek is generally more shallow than in this basin area. Near to the mouth of the creek, water depths are as shallow as 2.25 feet during high tide. The deepest continuous channel from the proposed docks to the mouth of the river is approximately three feet at high tide, and from one to one and one-half feet at low tide. The shallower areas of the creek are characterized by sandy bottoms, good water quality, and a rather high level of plant and animal activity which is diverse. Shorelines along most of the creek are dominated by mangrove vegetation. There is presently a limited amount of boating activity that occurs in the creek. Persons who testified at the hearing witnessed at various times from one to seven small motor craft in the creek. Construction of the perimeter dock and piers in the manner proposed by Petitioner in its application would have significant adverse short term water quality impacts. The "jetting process" for installing pilings would result in considerable turbidity which would be likely to violate state standards within the area of construction, and downstream to the mouth of the creek. These short term adverse impacts could be alleviated by installing the pilings through a "driving technique" and by use of turbidity screens. Petitioner has expressed a willingness to utilize these construction techniques. The proposed docking facility is likely to have an adverse impact upon water quality in Sims Creek. The project, if completed, is likely to cause violations of the Department's water quality standards. Dissolved oxygen levels in the area of the proposed project already exceed the Department's standards. The Petitioner's proposed docks would cover a significant portion of the water surface with docks, and this would exacerbate dissolved oxygen levels. Furthermore, increased boating activity in the area would, due to the interjection of greases and oils, further adversely impact dissolved oxygen levels, and can reasonably be expected to lead to violations of the Department's standards for biologic oxygen demand and oils and greases. Petitioner's proposed docking facility includes mooring spaces for approximately sixteen boats. The dock would serve therefore to increase boating activity in Sims Creek by three times or more Sims Creek is difficult to navigate without disturbing the productive shallow bottom areas. Increased boating activity is likely to disturb these areas and to lead to the destruction of a natural marine habitat. Sims Creek is too shallow a water body to sustain the sort of boating traffic that would be generated through construction of a docking facility such as Petitioner has proposed. Sims Creek is sovereignty land of the State of Florida. Petitioner has not received approval from the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources to use Sims Creek in the manner proposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Environmental Regulation denying the application submitted by Landin Ltd, for a dredge and fill permit to construct a docking facility in Sims Creek, West Palm Beach, Florida. RECOMMENDED this 5th day of April, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982. COPIES FURNISHED: Dennis R. Johnson, Esquire 308 Tequesta Drive Tequesta, Florida 33458 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
