The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the grant of a variance for the installation of an onsite sewage disposal system ("OSDS") for his property on the Santa Fe River in Gilchrist County, Florida, in accordance with Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Gilchrist County, Florida, more particularly described as Lot 4, Unit 4, Ira Bea's Oasis, a subdivision. The evidence is not clear concerning whether the plat of the subdivision was actually recorded, although the evidence and the Petitioner's testimony indicates that the lots in the subject subdivision were subdivided in 1965. The evidence does not clearly reflect whether the subdivision was ever platted, however. On April 2, 1990, the Petitioner filed an application for an OSDS permit regarding the subject property. The application was for a new OSDS on the above-described property; and the system was intended to serve a single- family residence, which the Petitioner desires to construct on the subject property for a vacation and retirement home. The proposed residence would contain three bedrooms and a heated or cooled area of approximately 1,100 square feet. In the permit application process, at the Respondent's behest, the Petitioner had a survey performed by Herbert G. Parrish, registered land surveyor. That survey, in evidence as the Respondent's Exhibit 1, reveals a benchmark elevation of 21.65 feet above mean sea level ("MSL"). The proposed installation site is at an elevation of 22.5 feet above MSL. A report by the Suwannee River Water Management District, which is admitted into evidence and was submitted to the Respondent by the Petitioner with the application for the OSDS permit, shows a ten-year flood elevation for the subject property, and River Mile 10 of the Santa Fe River, at 31 feet above MSL. Thus, the subject property is located beneath the ten-year flood elevation. The property is also located within the regulatory floodway of the Santa Fe River, as that relates to required engineering certification and calculations being furnished which will assure that if OSDS's are constructed employing mounding or sand filters, and like constructions, that such related fill deposited on the property within the regulatory floodway will not raise the level of the "base flood" for purposes of the rules cited hereinbelow. No evidence of such certification by an appropriately-registered engineer was offered in this proceeding concerning the installation of a mounded system and its effect on the base flood level. The surface grade level of the subject property at the installation site is 9.5 feet below the ten-year flood elevation. The grade elevation of the subject property is also .5 feet below the "two-year flood elevation", and the property has been flooded once in the past three years and has been flooded approximately four times in the past 15 years. It has thus not been established in this proceeding that the property is not subject to frequent flooding. On April 18, 1990, the Respondent denied the Petitioner's application for an OSDS permit by letter of that date. The Petitioner did not make a timely request for a formal administrative hearing to dispute that denial. The Petitioner maintained at hearing that this was, in essence, because the Respondent's personnel informed him that he should seek a variance instead, which is what he did. The testimony of Mr. Fross reveals, however, that, indeed, he was advised of his opportunity to seek a variance but was also advised of his right to seek a formal administrative hearing to contest the denial of the permit itself. Nevertheless, either through the Petitioner's misunderstanding of his rights or because he simply elected to choose the variance remedy instead, the fact remains that he did not timely file a petition for formal proceeding to contest the denial of the OSDS permit itself. Even had a timely petition for formal proceeding concerning the denial of the OSDS permit application been filed, the evidence of record does not establish the Petitioner's entitlement to such a permit. As found above, the property lies beneath the ten-year flood elevation and, indeed, lies below the two-year flood elevation, which subjects the property to a statistical 50% chance of being flooded each year. This and the other findings referenced above indicate that the property has not been established to be free from frequent flooding; and although appropriate "slight-limited" soils are present at the proposed installation site, those soils only extend 50 inches below the surface grade. That leaves an insufficient space beneath the bottom of the drainfield trenches where they would be located so as to have a sufficient volume and distance of appropriate treatment soil available beneath the drain field, if one should be installed. Below 50 inches at the subject site is a limerock strata which is impervious and constitutes a barrier to appropriate percolation and treatment of effluent waste water. Thus, for these reasons, especially the fact that the property clearly lies beneath the ten-year flood elevation and because adequate proof in support of a mounded system which might raise a septic tank and drainfield system above the ten-year flood elevation has not been adduced, entitlement to the OSDS permit itself has not been established. Concerning the variance application actually at issue in this proceeding, the Petitioner has proposed, in essence, two alternative systems. The Petitioner has designed, and submitted as an exhibit, a plan for a holding- tank-type- system. By this, the Petitioner proposes a 250-gallon holding tank, with a venting pipe extending approximately three feet above the level of the ten-year flood elevation, with an attendant concrete retaining wall and concrete base to which the tank would be securely attached. The Petitioner thus postulates that flood waters would not move or otherwise disturb the holding tank and that he would insure that the holding tank was pumped out at appropriate intervals and the waste there from properly deposited at a treatment facility located above the ten-year flood elevation. The precise method of such disposal and its location was not disclosed in the Petitioner's evidence, however. Moreover, the testimony of Dr. Hunter establishes that the deposition of waste water and human waste into the tank, either through pumping, or by gravity line, if the residence were located at an elevation above the inlet to the tank, might well result in a hydraulic condition which would cause the untreated sewage to overflow from the vent pipe of the tank. Moreover, such systems do not insure that public health, the health of the occupants of the site, and ground or surface waters will not be degraded since it is very costly to pump such a tank out which would have to be done on a frequent basis. This leaves the possibility that the user of such a holding-tank-facility could surreptitiously drain the tank into nearby receiving waters or otherwise improperly empty the tank. Even though the Petitioner may be entirely honorable in his intentions and efforts in this regard and not violate the law and the rules of the above-cited chapter in his manner of disposal of the holding-tank effluent, there is no practical, enforceable safeguard against such illegal activity, especially if one considers that the property may later be conveyed to a different landowner and user of the system. The Petitioner also proposes in his testimony and evidence the possibility of using a nondischarging, composting-toilet-type system to handle sewage involving human excreta. Such a system has been shown by the Petitioner's evidence to adequately treat human sewage so that public health and the ground and surface waters involved in and near the site could be adequately safeguarded. The problem with such a system, however, is that the "gray water", that is, waste water from bathtubs, showers, lavatories and kitchens, cannot be disposed of in the composting-toilet system. Such gray water, which also contains viruses, coliform bacteria and nutrients, must be disposed of, according to the rules at issue, in an appropriate sewage disposal system, be it in a septic tank and drain field or through pumping to an appropriate disposal and treatment facility located above the ten-year flood elevation. The Petitioner's proof does not establish how such gray water could be appropriately and safely disposed of in the environmental and public health context at issue herein. Thus, the proposed alternatives suggested by the Petitioner's proof do not constitute minor deviations from the minimum requirements for OSDS's specified in Chapter 10D-6, Florida Administrative Code. Ironically, the composting-toilet system, coupled with a proper disposal system for household gray water, could constitute a reasonable alternative to a conventional system. Thus, the Petitioner's proof, itself, shows that a reasonable alternative may exist, which militates against the granting of the variance, although he did not prove how it could feasibly be accomplished. In summary, therefore, the Petitioner's proof failed to establish that no reasonable alternative exists and that the proposed system would only be a minor deviation from the minimum requirements of the Respondent's rules concerning OSDS's and their installation and operation. The Petitioner established that a reasonable alternative to a conventional OSDS might exist for purposes of granting an OSDS permit itself, had that issue been formally placed before the Hearing Officer, but did not prove how it could feasibly be accomplished and operated. This proof shows, however, that such a reasonable alternative might be found operable which, thus, fails to justify the granting of a variance based upon hardship. If the Petitioner could come forward with proof to establish the feasibility of disposal and treatment of the household gray water involved in an appropriate treatment and disposal site and facility above the ten-year flood elevation, in conjunction with use of a composting- toilet system, a later permit application might be entertained in which could be justified the granting of an OSDS permit.
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 Respondent denying the Petitioner's application for a variance from the statutory and regulatory requirements, cited above, for the issuance of permits. At such time as the Petitioner is able to show changed factual circumstances, as for instance, that a reasonable, feasible alternative system, which will adequately treat and dispose of all household waste water effluent in a manner comporting with the rules of Chapter 10D-6, Florida Administrative Code, a permit application should be entertained. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4569 The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-16. Accepted. 17. Rejected, as not supported by the preponderant evidence of record. COPIES FURNISHED: 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 Mark Moneyhan, pro se Route 3, Box 407 Perry, FL 32347 Frances S. Childers, Esq. Department of HRS District III Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?
Findings Of Fact More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.) Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters. Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each 24 inches in diameter, in their stead, install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface, Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD. T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.
Recommendation It is, accordingly, RECOMMENDED: That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue. DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 28th day of August, 1992. APPENDIX Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material. With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law. Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to subordinate matters. Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue. With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed. With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding. With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12. With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts. Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard. With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill. The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material. With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD. With respect to the applicants' proposed finding of fact No. 9, the OHW is 45.7 feet NGVD. With respect to the applicants' proposed finding of fact No. 11, testimony so implied. With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy. The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters. With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm. With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill. With respect to DER's proposed finding of fact No. 3, backflows begin at 45.3 feet NGVD. With respect to DER's proposed finding of fact No. 4, not all fill would be removed. With respect to DER's proposed finding of fact No. 5, testimony so implied. With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm. DER's proposed finding of fact No. 7 is really a conclusion of law. With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions. DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material. DER's proposed finding of fact No. 13 is immaterial to the merits. COPIES FURNISHED: John A. Barley P.O. Box 10166 Tallahassee, FL 32302 Donna H. Stinson Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, FL 32301 Candi E. Culbreath Patricia Comer 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carlos Alvarez c/o Hopping, Boyd, Green & Sams 123 South Calhoun Street Tallahassee, FL 32301 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Respondent should be required to obtain a current operating permit for his aerobic treatment unit and have a $500.00 fine imposed for violating an agency rule for the reason cited in the Citation for Violation issued by Petitioner on December 1, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Petitioner, Department of Health (Department), has alleged that Respondent, Dr. Anthony Massaro, a retired public health physician, failed to obtain an annual operating permit for an aerobic treatment unit (ATU) located at his residence at 3402 North Oceanside Boulevard, Flagler Beach, Florida. The Flagler County Health Department (Health Department) is charged with the responsibility of issuing such permits. That department is under the direction and control of Petitioner. While Respondent readily admits that he failed to obtain a permit, he contends that he was misled by the Health Department when he first installed an ATU at his residence; the Health Department is not enforcing the law regarding ATUs and thus another system would be more appropriate; and the law, as he interprets it, allows him to install another type of on-site sewage disposal unit on his property. Respondent purchased his property in Flagler County in 1997. The property is located in Ocean View Estates Subdivision (subdivision), which has an Urban Single-Family Residential District (R-1b) zoning classification under the Flagler County Land Development Code (Code). Section 3.03.05A of the Code requires that owners within the R-1b classification use "public or community water and sewer facilities," but makes an exception for "[s]mall R-1b subdivisions, fifty (50) lots or less, utilizing a public community water system," in which case residents "may utilize Class I aerobic onsite sewage disposal systems." Further, "[t]he use of individual onsite sewage disposal systems must be consistent with adopted county policies and standards." Because the subdivision has 50 lots or less, and public or private sewer facilities were not available in the area, the subdivision's Plat Agreement recorded in 1995 provided that "[i]ndividual aerobic onsite sewage disposal systems are to be permitted and constructed as each lot is developed." Another type of onsite sewage disposal system is the anerobic system, which has a septic tank and larger drainfield, is far less expensive, but does not conform with "county policies and standards" in this locale. Thus, this type of system requires a variance from the zoning regulations before one can be installed in the subdivision. Even so, Respondent says "all" of his neighbors have installed such a system. Because of the Plat Agreement, the zoning restriction, the difficulty in obtaining a variance, and the lack of a sewer line, Respondent had no choice except to use an ATU system for his residence. This meant that he had to apply for a permit from the Health Department. Once a permit is obtained and an ATU installed, the owner must renew his operating permit annually at a cost of $150.00, and he must enter into a maintenance agreement with a licensed contractor. The $150.00 fee is used to defray the costs incurred by the Health Department in making quarterly inspections and performing annual sampling and laboratory analysis of effluent. The record does not reflect precisely when a sewer line became operational across the street from Respondent's property, but the sewer project was accepted "for service" in April 1998, or before Respondent's ATU was installed in August 1998. Had Respondent known this, he would have obviously chosen that option rather than an ATU. The evidence reflects that in November 1997 Respondent made application for an ATU with the Health Department, a permit was issued in December 1997, and the system was installed and approved in August and September 1998, respectively. In early April 1998, the Health Department was advised by the private utility company that it would accept new sewer connections in a service area that included Respondent's home. However, Health Department representatives made no mention of this to Respondent since they were under the impression that he desired to use the ATU option, they do not normally "counsel" applicants on onsite sewage disposal system options, and Respondent had made no inquiry. Disclosure of this fact would have saved Respondent considerable money (and grief) in the long run; unfortunately, however, while good public relations would dictate otherwise, the Health Department had no legal obligation to do anything other than process the pending application. Likewise, it has no obligation in law to now pay the costs for Respondent to hook up to the line because of its non-disclosure. Respondent has now invested more than $5,000.00 in his ATU. This type of system is operated by a compressor in Respondent's garage, which must be run 24 hours per day, and is very noisy. Because of this, Respondent understandably wishes to change to an anerobic system, which has a traditional septic tank, larger drainfield, no unsightly "mound" in the yard, no annual permits, and is far cheaper than an ATU. Also, it does not require a noisy motor to sustain operations. However, this type of system is prohibited by the Code except where a variance from Flagler County (County) has been obtained. It appears to be unlikely that Respondent can obtain a variance from the County. Because Respondent's property is so low in relation to the sewer line, to achieve the proper gravity, he must install a lift station and pay a connection fee, both totaling $3,540.00, before hooking up to the sewer system. Given these costs, and the considerable investment he already has in an ATU, Respondent does not consider this to be a viable alternative. Respondent pointed out that, despite the requirement that they do so, many ATU owners in the County are not running their systems 24-hours per day because of the noise from the compressor. He also pointed out that the Health Department has consistently found numerous violations of such systems during its inspections. He further asserted that while the $150.00 annual fee is to defray certain sampling and laboratory analysis costs associated with inspecting ATUs, the Health Department has done neither on his ATU. Finally, Respondent pointed out that prior to 1999 the regulations were enforced by sampling the compliance of a very small percentage of total ATU systems (ten percent), rather than all systems, in the County. Given these considerations, Respondent concludes that ATUs are the least effective way to treat sewage, and that existing laws and regulations have not been enforced. Assuming these allegations to be true, and they were not seriously disputed, they are legitimate concerns. However, until the law is changed, they do not constitute a lawful basis for allowing Respondent to switch to an anerobic system. Respondent further contended that under his interpretation of the general law, which was not fully understood by the undersigned, he is not required to use an ATU. But local zoning regulations clearly require that he do so, and until the state or local regulations are changed or waived, he cannot use an anerobic system. Finally, Respondent has cooperated with the Department throughout this process. With his lengthy public health background, Respondent initiated this action with good intentions, seeking to point out the flaws in the ATU systems, and to remedy a problem which none of his neighbors apparently have. Given these considerations, a civil penalty should not be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order sustaining the charge in the Citation for Violation and requiring that Respondent obtain an annual permit for his ATU. A civil penalty is not warranted. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Dr. Anthony Massaro 3402 North Oceanside Boulevard Flagler Beach, Florida 32136 Amy M. Jones, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Bradys 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 29 day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424 Petitioner's Proposed Findings of Fact 1-7. Accepted. Respondent's Proposed Findings of Fact The Respondent submitted no proposed findings of facts. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Conrad C. Bishop, Jr., Esq. P.O. Box 167 411 N. Washington Street Perry, FL 32347
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of March, 1993.
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which he owns near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as part of Section 30, Township 10 South, Range 14 East. The property is approximately 8.5 acres in size. The Petitioner purchased the property some ten-years ago, and the lot in question has never been platted. The petitioner purchased the property for purposes of constructing a residence for himself and his family. At the time that the Petitioner purchased the property, and since, there have been occupied homes on either side of the property served by septic tank and drain-field sewage disposal systems. There came a time when the Petitioner elected to construct a home on his property and applied to the Respondent for an OSDS permit on January 19, 1990. On April 20, 1990, after having its personnel make on-site inspections of the property, the Respondent determined that the propert, according to Suwannee River Water Management District calculations, lay beneath the ten-year flood elevation. The Respondent, therefore, denied the permit application. Pursuant to information obtained from a registered land surveyor, the benchmark elevation of the surface of the Petitioner's property is 14.56 feet above mean sea level ("MSL") The actual surface elevation is 6 inches lower than that or approximately 14 feet. The ten-year flood elevation level for the Petitioner's property, at the Suwannee River mile involved, is 17 feet above MSL. Thus, the surface of the Petitioner's property is some three feet beneath the ten-year flood elevation and were a drain-field system installed on the property, the bottom of the drain-field trench or absorption bed would be a greater distance beneath the ten-year flood elevation. A "mounded" septic tank and drain-field system might be feasible for the subject property because of the property's adequate size, although such a mounding might have to be approximately five feet or greater in height over the present grade level of the property. The Petitioner, however, did not adduce any testimony or evidence concerning the feasibility of such a mounded disposal system, including details of how it would be constructed and operated and whether there is adequate room on his property to build such a mounded system, including the required undisturbed land area around such a system. The Petitioner did not adduce testimony or evidence in support of the feasibility of any other alternative sewage treatment and disposal system for the subject property. In fact, the property is located within the regulatory floodway of the Suwannee River. Because of this, the rule cited hereinbelow would require that a registered engineer certify and adequately explain the manner and method by which such a mounded system could be built on this property within the regulatory floodway, without altering the level of the "base flood", as, for instance, by excavating an equal volume of fill from another location within the regulatory floodway. However, such engineering testimony and evidence was not offered by the Petitioner; therefore, it has not been established that such a mounded system is a feasible alternative nor has it been established that any other type of treatment and disposal system is a feasible alternative because of the dearth of such evidence. The Petitioner did not apply for a variance. In any event, however, although the Petitioner clearly has been placed at a hardship because of not being able to construct the retirement residence he has desired for years on the subject property, because of the inability, thus fail at least, to obtain an OSDS permit, the Petitioner has not established- with regard to the below- referenced variance criteria that no reasonable alternative exists to the installation of the subject proposed system beneath the present surface of the lot which would be beneath the ten-year flood elevation. The Petitioner has not offered evidence to establish that the installation of the proposed system will not adversely affect public health and will not degrade the surface and ground waters involved in the immediate area. Thus, the standards for the grant of a variance have not been established by the Petitioner's proof, although it is understood that the Petitioner did not leek a variance, at least as yet. In that connection, the Respondent asserts that the Petitioner was not accorded the opportunity to avail himself of the Department's variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90- 14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten-year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioner's proof and, indeed, Respondent's Exhibit NO. 2 establishes that this property is relatively high in elevation, is well-drained, and not subject to frequent flooding, although it does lie beneath the ten-year flood elevation. The soil profile indicates that fine sand exists from the surface down to 72 inches. This type of soil promotes very good percolation of water and, thus, would result in adequate operation of a septic tank and drain field if all other appropriate standards and conditions necessary for such adequate operation were met. In fact, the wet season water table is some 36 inches beneath the surface; and, in general, this property has been shown to be well-suited to the installation of a septic tank and drain-field system, but for the ten-year flood elevation circumstance delineated above.
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 denying the Petitioner's application for an OSDS permit, without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying and pursuing an OSDS permit application at a later time, should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on-site sewage disposal permitting. DONE AND ENTERED this 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. 90-3339 The Petitioner filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-4. Accepted. Rejected, as incomplete and, therefore, not shown to be material. Accepted. Rejected, as not necessary to resolution of material issues and as immaterial. Accepted. COPIES FURNISHED: 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 Donald D. Kersey Route 2, Box 187 Chiefland, FL 32626 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 3rd day of May, 1993.
