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 installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the 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 within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; 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.
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 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 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue As stipulated by the parties, the issues to be resolved in this proceeding concern whether the septic system sites in question are within 75 feet of "surface water", as defined by the law cited below and whether the actions and representations of Department personnel have created an estoppel against the Department from refusing to issue the subject permits.
Findings Of Fact The Petitioner, Lagoon Oaks, Inc., is a Florida corporation. It is the developer of Lagoon Oaks, Eighth Edition, as shown on the plat in evidence, and is engaged in the business of developing the subdivision. It does not construct homes on individual lots. Instead, it sells the lots to home builders, who then construct the homes. Mr. Fred Webb, as President and sole stockholder of the Petitioner corporation and the owner of the lots for which the permit applications at issue in this proceeding were submitted. The applications for the permits concern Lots 31 and 32, Eighth Edition to North Lagoon Oaks, a subdivision located in Section 9, Township 4 South, Range 15 West, Bay County, Florida. The lots are located on Oakbrook Lane, in Panama City Beach, Florida. The Estoppel Issue Mr. Webb, the Petitioner's President, became concerned about difficulties in obtaining septic system permits for homes he proposed to construct on the subject lots. Consequently, he contacted Steve Lewis, Esquire to assist in resolving the permitting problem for the subdivision. Mr. Lewis began by visiting the lots himself. He then reviewed the applicable statutes and rules and contacted Mr. Eanix Poole, the Bureau Chief of the On-Site Sewage Treatment and Disposal Program for the Department in Tallahassee, Florida. Mr. Lewis requested a meeting with Mr. Poole at the site to view the property and attempt to resolve disputes regarding the permits. The meeting was held on or about March 29, 1994. Mr. Webb, Mr. Lewis, Mr. Poole, Mr. Mike Sarra, the program head for Bay County, Florida, and Mr. Shuster, who is a United States Department of Agriculture Soil Scientist, assigned to work with the Department on septic system issues, were present at the meeting. Mr. Sarra and Mr. Poole were present in their official capacities as representatives of the Department. During that meeting, Lots 29-33 were discussed. Mr. Webb was proposing to put mounded septic systems on the rear of the lots because of their relatively-low elevation in relation to the water table. The discussion involved the question of whether certain adjoining property behind Lots 29-33 was a "surface water", as defined in Section 381.0065(2)(1), Florida Statutes, and Rule 10D-6.042(47), Florida Administrative Code. The definitions contained in the statute and rule, respectively, are as follows: 'Surface water' means a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds and sloughs, and natural or constructed ponds contained within a recognizable boundary. This does not include retention or detention areas designed to contain standing or flowing water for less than 72 hours after a rainfall. Surface water - a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds, sloughs, and natural or con- structed ponds contained within a recognizable boundary. This does not include storm water retention or detention areas designed to contain dstanding or flowing water for less than 72 hours after a rainfall. Mr. Lewis and Mr. Webb contended that the area was not a surface water, and Mr. Poole and Mr. Sarra contended that it was. They opined that the proposed septic system sites were within 75 feet of what they deemed to be a surface water, precluding permit issuance. Photographs in evidence, as the Petitioner's Composite Exhibit 2, were taken shortly after that on-site meeting. They show that the area behind Lots 31 and 32 was, at that time, cleared of underbrush and was populated by a large number of pine trees. The photographs give no indication of a recognizable body of water, including a swamp or marsh area, bayhead or cypress pond or slough or a natural or constructed pond contained within a recognizable boundary. The testimony of Mr. McWilliams corroborates this. He found no recognizable boundary, no ordinary high-water mark, and found that the supposed "wet weather pond", as Mr. Poole described it, was, in reality, a parcel of "pine flat woods", comprised predominantly of a slash/pine canopy of mature pine trees from 60 to 80 years old. At the time of the site visit, which was after a significant rainfall the preceding night, there was little or no standing water behind the lots in question. Mr. Lewis saw very little standing water, and Mr. Poole does not recall any standing water. Nevertheless, Mr. Poole determined that the area behind the lots constituted a "wet weather pond", which he believed to be within the definition of "surface water". He described such a term as meaning an area where water is present at certain times of the year. Mr. Poole conceded that the term "wet weather pond" is not found within the definitions referenced above as a recognized "surface water". It is not a term describing a criteria for granting or denying a permit. No ordinary high-water line had been determined as of the time of this site visit, or later, concerning this alleged surface water. During the course of the meeting, it was suggested by Mr. Poole that if additional fill were placed immediately adjacent to Lots 29-33 in the areas behind those lots, then the problem of the "wet weather pond" would cease to exist, and the septic system permits could be issued. Mr. Webb protested this suggestion because the cost would be prohibitive. It would require him to place fill on property he did not own, and he was not sure that he could secure permission from the landowner to do so. He was reluctant to pursue such a settlement option on a problematic basis of obtaining permission from the adjoining landowner, when he really wanted to settle the matter with Mr. Sarra and Mr. Poole that day. He understood that they had the authority to settle the disputes, based upon their representations. During the discussion concerning placement of additional fill on the adjoining property, Mr. Webb brought up the fact that regardless of whether he put fill on those areas, the water would, because of the overall slope of the area, continue to drain across the areas which the Department had claimed constituted surface water. Upon discussion of this issue, Mr. Sarra and Mr. Poole concluded that such drainage would not pose an impediment to the issuance of permits, because with the addition of fill, the purported wet weather pond and, hence, "surface water" would no longer exist. The representations made by Mr. Poole and Mr. Sarra concerned the fact of whether the area in question adjoining the lots was a surface water and whether, if additional fill were placed on that adjoining property, the area would retain the alleged "wet weather pond" character. A representation was made by the Department, through Mr. Poole and Mr. Sarra, that if the additional fill were placed on the adjoining property, the question of whether it was a surface water within 75 feet of the proposed septic system site would become moot, and the Department would have no further reservation about issuing the permits. Mr. Poole was the Bureau Chief of the On-Site Sewage Program, and Mr. Sarra was the head of the Bay County Public Health Unit. By virtue of their positions with the agency, they were empowered to resolve such disputed issues. Mr. Poole testified that one of the functions of his position was to try to mediate disputes regarding permits and resolve the issues. Further, he and Mr. Sarra were perceived by Mr. Webb and Mr. Lewis, as his attorney, as having such authority. In any event, after voicing his objections concerning permission of the adjoining landowner, Mr. Webb ultimately agreed to try to secure permission to put the fill on the adjoining property. Following the meeting, Mr. Lewis wrote a confirming letter to Mr. Sarra. That letter is in evidence as Petitioner's Exhibit 3. A copy of that letter was also received by Mr. Poole. The letter confirmed the discussion that had taken place on the site with regard to Lots 29-33, concerning filling, as well as concerning other lots in the subdivision. Mr. Webb and Mr. Poole both testified that the letter accurately reflected the discussions which had taken place during the meeting. The letter clearly states that with regard to certain of the other lots in the subdivision, Lots 21-24, it was agreed that permitting was not possible at that time without further investigation of the situation regarding those lots. The letter was not an attempt to bind the agency to permit issuance concerning all of the lots under discussion. As to Lots 29-33, however, the letter confirms that Mr. Webb would attempt to follow the Department's suggested course of action and would attempt to secure permission to place fill on the adjoining property. He did not concede, however, that the area behind the lots was actually a surface water. No reply by Mr. Sarra or Mr. Poole or anyone else was made to Mr. Lewis' letter. No indications were given to Mr. Webb or Mr. Lewis, either orally or in writing, that despite the representations made on site during the meeting and despite the recitations in Mr. Lewis' letter, additional or more specific conditions were assumed by the Department. No hint was given that additional review would be required in order to issue the permits. Mr. Webb was able to secure permission from the adjoining landowner to place additional fill on the adjoining property. Because this operation entailed the mobilization of substantial equipment and personnel, the filling did not actually take place until sometime in October of 1994. During that period of time, Mr. Webb placed additional fill on Lots 29-33 themselves and approximately six inches to a foot of fill on the adjoining property behind the lots, in accordance with the Department's proposal. In addition, as part of the process, septic system sites for mounded septic systems were prepared in the rear of Lots 31 and 32. In the process of placing the fill, a "drainage way" was graded into the fill (a shallow, relatively-wide structure, similar to a swale in configuration) in order to accommodate the drainage of the water which was understood by the Department and the Petitioner to still require moving across the area. The six to twelve inches of fill was placed on the area in the rear of Lots 31-33, based upon the representations made by Mr. Poole and Mr. Sarra during the meeting which occurred. Mr. Webb spent approximately $25,300.00, of which $24,000.00 was for equipment and personnel time and approximately $1,300.00 was for the dump truck rental for placing the fill on Lots 29-33 in the area behind them and adjacent to them. He used equipment and personnel to obtain the fill off site, haul it to the edge of the borrow site, placed it on leased dump trucks, to transport it over public roads to the site, and used his own equipment and personnel to spread and grade the fill. He spent approximately $4,000.00 placing the fill on the adjacent property and approximately $5,000.00 was spent on each of Lots 31 and 32. The evidence clearly establishes that, but for the proposal of the Department during the site visit that Mr. Webb place fill on the adjoining property, in order to secure permit issuance, Mr. Webb would not have undertaken to expend the time, effort and money to place the fill on the adjoining property. In expending these resources, Mr. Webb relied upon the representations made by Department officials, Mr. Poole and Mr. Sarra, acting in their official capacities, regarding what he could do to make the sites permittable. Following his placement of the additional fill on the lots and on the adjoining property, a permit for an on-site septic system was applied for on Lot 33, which is immediately adjacent to Lots 31 and 32 and contiguous to the alleged "wet weather pond". The septic system on Lot 33, like that proposed for Lots 31 and 32, is located on the rear of the property near the property line, closest to the adjoining property which was filled. Lot 33 was one of the lots discussed in the on-site meeting as unpermittable prior to the fill being placed on the adjoining property. In accordance with the discussions on site and in partial fulfillment of the commitment made by the Department to issue permits if the filling was performed, a permit was granted for the system on Lot 33. Interestingly enough, the Lot 33 septic system site was shown by Mr. McWilliams to be only about 45 feet from the so-called "drainage way" described in his testimony, which the Department now maintains constitutes a "ditch", "stream", or other "surface water". This is its current basis to continue to deny the permits for Lots 31 and 32 as being less than 75 feet from such a supposed "surface water". The Department's Current Surface Water Issue In approximately December of 1994 or January of 1995, Mr. Sarra retired from his position with the Department. On August 1, 1995, Mr. Poole changed positions within the agency to become an administrator for the Department in Jefferson and Madison Counties. After their departures from their former positions, the Department changed its position regarding the issuance of these permits. On or about March 23, 1995, applications were made with the Department for the permits at issue in this case; and on May 19, 1995, a letter was written by Mr. Carl Darcy of the Department denying the permits. The denial letter makes reference to "numerous recent site visits". Mr. Darcy testified that he visited the site four times. The only indication of any site visits, other than his testimony, is a notation in the permit file, which states "surface water within 75 feet of site-March 20th through April 17th." Mr. Darcy testified that this notation indicated his site visits were between those dates, but he could not state the exact dates or times of day he visited the site and admitted that there was no notation in the permit file regarding any visits other than the two visits on March 20th and April 17th. In the course of his duties, in his position, Mr. Darcy makes approximately 35 to 60 such site visits in his district per month. He generally does not draw any diagrams which would serve to indicate the size, location, or distance of any surface waters from a proposed septic system site, as identified during the site visit. In this case, the permit file contains no diagrams, photographs, or other writing, except the notation described above, indicating the present size, location, or other physical or temporal attributes of the alleged surface water. There is no notation therein concerning the distance of the alleged surface water from the proposed sites, on the days he visited. The Department's records do not reflect whether it had rained the night before, or the week before his visit, the time of day, or the weather conditions at the site during his visit. The records do not indicate the location of any ordinary high-water line or recognizable boundary of the purported surface water. Mr. Darcy stated that he had, prior to hearing, obtained some rainfall data via telephone from a rainfall-collection station some two or three miles away. Mr. Darcy's testimony regarding site conditions he purportedly observed during his inspection visits are not corroborated by any notations or indications in the Department's permit file to document the visits and the antecedent conditions at the site or the conditions prevailing after the site visits. Thus, they can be of little weight, particularly in light of the number of site visits which Mr. Darcy typically makes in the course of his duties each month and the fact that he admitted that some of his site visits had not been documented in the permit file at all. He does not, as a matter of practice, make determinations of ordinary high-water line of surface waters in relation to proposed septic systems and did not do so in this case. Rather, he testified that he simply "walked out to the water and there it was." He testified that the Department has no method of determining an ordinary high-water line. Like Mr. Darcy, Mr. Hammons, an employee of the Department, also makes such site visits. He admitted that he has no training in how to perform ordinary high-water line surveys and did not make a determination of the "recognizable boundary" of the purported surface water in this instance. He did not make measurements of any distances of water he may have observed from the proposed septic system sites. Mr. Darcy testified that the Department interprets the provisions of Chapter 381 and related rules to mean that the presence of visible liquid water on the surface of the ground for greater than 72 hours may constitute a surface water. However, assuming arguendo that the "72-hour rule" is a valid interpretation and a basis for denying a permit, Mr. Darcy could not establish whether he had made any visits to the site which were at least 72 hours apart. Mr. Hammons testified that he had not made visits 72 hours or more apart for purposes of determining whether surface water he might have observed remained present. Neither Mr. Darcy nor Mr. Hammons had definite knowledge of actual conditions prevailing on the sites 72 hours prior to or after their site visits and, therefore, neither could state whether or how much it may have rained at the sites prior to their visits, how long any water was present prior to their site visits, or whether any water observed during their site visits still remained visible 72 hours after their visits. Mr. McWilliams was qualified to testify as an expert regarding the wetland or biological characteristics of the area alleged to be surface water by the Department; concerning whether surface water exists in the area in question; whether it has or may have an ordinary high-water line, as well as the process for determining ordinary high-water lines. The area immediately adjacent to and behind Lots 31 and 32 is characterized by a mature pine canopy. The pine trees are between 50 and 80 years old. The presence of these slash pines is inconsistent with the area being surface water, being regularly inundated or "normally wet". Slash pine grows in dry upland soils. Scattered amongst the pines is a mid-story of a number of sweetbay trees. Their number is relatively sparse, when compared to the slash pine and they do not constitute a portion of the canopy. Under the canopy, the areas of new fill have been densely colonized by a fairly large number of opportunistic herbaceous species, including rushes, sedges, and a few isolated, small pockets of cattail. There is a small excavated drainage way running through the area through which water has flowed in the past. The photographs, in evidence as Petitioner's Exhibit 5, show that this drainage way does not have a mucky bottom or other defining characteristics which clearly set its area apart from the other recently-filled areas, except, perhaps, a slight difference in elevation. Mr. McWilliams established that the area immediately behind and adjacent to Lots 31 and 32 is not a swamp, a bayhead, a cypress pond, a slough, a lake, a canal, a normally-wet drainage ditch, a retention area, or a stream. Indeed, even Mr. Darcy admitted that the alleged surface water he purported to find is not a swamp, a marsh, a bayhead, a cypress pond, a slough, a natural or constructed pond, a lake, a canal, or a retention area. Mr. Darcy was not sure if it constitutes a ditch and claimed that it constituted a stream. However, he also admitted, on cross-examination, that the stream does not flow at all times. This supports Mr. McWilliams' showing that during his visits, while there may have been some areas of standing water, there were no contiguous or continuous areas of flowing water which could constitute a stream. The actions of Mr. Webb, in placing fill on the adjacent property, have caused water, which drained across the property anyway, to drain in a more identifiable drainage way, which was left when his crews finished grading and spreading the fill and left a shallow, swale-like drainage way. The photographs in evidence (Petitioner's Composite Exhibit 5) of that adjacent property show merely a depression in sandy soil, through which water appears at some time to have flowed. No water was presently extant, as shown in the photographs. Both Mr. Darcy and Mr. Hammons conceded that each time they visited the site, the amount of water observed was different. Mr. Darcy testified that in order for an area to constitute a surface water at a particular point in time, water must be present, and he conceded that the alleged stream probably is not continuous at all times. In fact, there is no water body, stream, or otherwise on the adjoining property. Rather, the adjoining property serves as a drainage way for water from higher elevations. There is no evidence that the water, which has been observed by Department personnel, constitutes a surface water body, such that it has the characteristics of a recognizable body of water, including, but not limited to, a recognizable boundary or an ordinary high-water line. The Department has failed to follow its own rules, which dictate that an ordinary high-water line be established in order to properly evaluate a permit request. Mr. McWilliams demonstrated that based upon his extensive experience with ordinary high-water line surveys and his knowledge of conditions at this site, the alleged surface water on the adjoining property cannot have an ordinary high-water line. This is because the water, which may be found there intermittently from time to time, does not have the character of a recognizable body of water and is not a stream or other surface water. It is simply water draining from high ground across that parcel of property to a culvert, downgradient, on a temporary or intermittent basis. The concept of ordinary high-water line, therefore, does not apply to the subject property and site. In summary, the evidence demonstrates that there is no surface water, as defined in the statute and rules at issue, within 75 feet of the proposed septic system sites for which permits are sought.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services directing that the permits at issue in this proceeding be issued without further delay or the imposition of any additional conditions. DONE AND ENTERED this 8th day of March, 1996, in Tallahassee, 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 8th day of March, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4394 Petitioner's Proposed Findings of Fact 1-27. Accepted. 28-30. Accepted, in concept, but rejected as subordinate to the findings of fact made by the Hearing Officer, and to some extent, unnecessary. 31-32. Accepted. 33. Accepted, as modified by the Hearing Officer. 34-49. Accepted. Rejected, as unnecessary, irrelevant and immaterial. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. Rejected, as immaterial. Accepted. 6-7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 8. Accepted. 9-11. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. Rejected, as contrary to the preponderant weight of the evidence. Accepted, but not itself materially dispositive. 14-15. Rejected, as not entirely in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 16-17. Rejected, as contrary to the preponderant weight of the evidence, in part, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, irrelevant. COPIES FURNISHED: Lee M. Killinger, Esquire Taylor, Brion, Buker and Greene 225 South Adams St., Ste. 250 Tallahassee, FL 32301 Thomas D. Koch, Esquire Department of Health and Rehabilitative Services 2639 North Monroe St., Ste. 126-A Tallahassee, FL 32399-2946 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the 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.
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 application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue The issue presented here concerns the entitlement of the Petitioner, Turtle Lake Land Trust, to be permitted by the Respondent, State of Florida, Department of Environmental Regulation, to dredge approximately 600,000 cubic yards of material in the area known as Turtle Lake, which is located near Jackson street and Fairfield Drive, Pensacola, Florida. The purpose of this project is to create a manmade lake. The dredged material world be placed on the lake shore.
Findings Of Fact On May 9, 1979, the Respondent, State of Florida, Department of Environmental Regulation, received an environmental permit application from the Petitioner, Turtle Lake Land Trust. The details of that permit application were contained in a form provided by the Department together with attachments to that form. A copy of this permit application may be found as the Respondent's Exhibit No. 2 admitted into evidence. By this application, Turtle Lake requested that it be allowed to dredge approximately 600,000 cubic yards of material in an area known as Turtle Lake, which is located near Jackson Street and Fairfield Drive, Pensacola, Florida. The purpose of the excavation was to establish a manmade lake approximately twelve (12) feet in depth in an area which is a cypress swamp and subject to periodic inundation by water. The materials removed from the dredging would be deposited on the shores of the lake, effectively raising the ground elevation at lakeside. The dredging would intersect the groundwater on the project site. The project is part of an overall development which would involve construction of residential housing and commercial facilities in the vicinity of the lake, with the lake to be used for fishing, sailing and other water recreation. The proposal of the Petitioner was reviewed by the Department and certain timely additional requests were made from the Department to the applicant to provide information necessary to evaluate the request for permit. The exhibits dealing with the request for additional information and responses to those requests may be found as Respondent's Exhibits 3, 5, 8, 9, 10 and 11 admitted into evidence. The Department solicited comments from the Florida Game and Freshwater Fish Commission on this subject and the comments were provided by correspondence from the Executive Director of the Commission. These comments may be found in Respondent's Exhibit No. 6 admitted into evidence, which is a copy of those remarks. The Department of Environmental Regulation, in keeping with the provision Subsection 253.124(3), Florida Statutes, performed a biological survey of the project site and submitted it to the Board of County Commissioners of Escambia County, Florida, for the Board's action. A copy of the survey may be found as Respondent's Exhibit No. 7 admitted into evidence. The Escambia County Board of County Commissioners, by Resolution dated October 11, 1979, approved the project subject to action by the Respondent and the United States Corps of Engineers. A copy of this Resolution may be found as the Respondent's Exhibit No. 12 admitted into evidence. Upon consideration of the permit request, the Department of Environmental Regulation notified the applicant of its intent to deny the permit request. This Letter of Intent to Deny was issued on January 31, 1980, and a copy of it may be found as Respondent's Exhibit No. 13 admitted into evidence. This matter has been presented for consideration before the State of Florida, Division of Administrative Hearings, upon referral by the Respondent of the original Petition and has been heard after opportunity for and amendment to that Petition. The hearing was conducted on September 23, 1980, as scheduled, in keeping with the provisions of Subsection 120.57(1), Florida Statutes. The project site is located in a cypress swamp which has also been referred to as a cypress head. The southern boundary of the project site east of Fairfield Drive has an impoundment area which is fringed by pine trees and other upland species, to include gallberry, southern brackin, blackberry and oak. There is within this area aquatic vegetation dominated by Eleocharis sp. and fragrant waterlily (nymphaea odorata). The cypress head itself, which is bounded on the west by Fairfield Drive, consists of cypress, blackgum, sweetbay and cinnamon fern, fragrant waterlily and pickerel weed (pontederia lanceolata). Within the zone of the cypress head standing water may be found, the dimensions and depths of which were not established at the hearing in sufficient detail to allow further comment in these findings. Fairfield Drive serves to contain the water found in the Turtle Lake swamp on the eastern side of that roadway; however, there is an exit from the cypress head under Fairfield Drive by a series of three 24-inch culverts which connect the manmade ditches. These ditches flow into Bayou Marcus and Bayou Marcus Creek and eventually into Perdido Bay. This water connection is a direct connection and Bayou Marcus, Bayou Marcus Creek and Perdido Bay are waters of the State. Immediately adjacent to Fairfield Drive east of that roadway in the vicinity the culverts water may be found standing and could be navigated and this may be seen by Respondent's Composite Exhibit No. 14. This water which although subject to navigation wad not identified sufficiently at the hearing to establish its length and breadth. The depth was two to three feet. This water adjacent to Fairfield Drive is not within that area of the proposed excavation. At present, the storm water runoff from the Forte subdivision located to the north and east of the project site, enters the cypress head swamp and at times of periodic inundation, this storm water runoff arrives at the area of the culverts into the ditch system and into Bayou Marcus, Bayou Marcus Creek and Perdido Bay. The oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which make up the storm water constituents are somewhat filtered by the cypress head swamp as it now exists, prior to the entry of those materials into the culvert area adjacent to Fairfield Drive and from there into the transport mechanism constituted of the ditches, bayou, creek and bay. If the project is built out, the dredging will remove those flora mentioned herein and the fauna which inhabit this swamp and will remove the cypress head from future use by the fauna which normally inhabit this form of environment. It would also take away the natural filtration to be provided by the swamp in the way of removing undesirable storm water constituents from the residential runoff in Forte subdivision and the proposed development associated with the lake construction. The removal of the swamp would destroy the capacity to convert raw nutrients into usable sources of food for indigenous dawn stream organisms. As can be seen in the Petitioner's Exhibit No. 1, the existing water table at the site is approximately 23 feet and ordinary highwater elevation has been measured at 24 feet with an existing grade of 21 feet. If the lake were excavated, the lake would show a water table with an elevation of 20 feet. The berm or dykes around the lake would have an elevation of 24 feet. Storm water from the current subdivision and the residential and commercial build-out associated with the project in question would be carried through underground storm water piping into four holding areas which have been referred to by the applicant as drainage corridors and retention area. These areas are separated from the lake by siltation screens and will serve the function of filtering out some storm water constituents which are solid particulates. The constituents which have been dissolved will flow through the siltation screen devices and into the lake proper. When the lake rises to a depth of 23 feet, the excess water will he transported through a proposed ditch into the area of the three culverts under Fairfield Drive and via those manmade conveyances into Bayou Marcus, Bayou Marcus Creek and Perdido Bay. Those storm water constituents such as oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which have not settled or been filtered will be transported through this system and deposited into waters of the State. In this connection, the drainage corridor and retention areas are not designed for long-term retention; they are primarily for short-term detention, depending on the amount of loading from the storm water runoff. The only pre-treatment associated with the storm water runoff is that filtration that occurs in the drainage corridor and retention area. (There was some discussion of possible gravel filters in conjunction with the drainage corridor and retention area but they were not part of the plan submitted to the Department in the process of project review.) In addition to the introduction of the storm water contaminants into the waters adjacent to Fairfield Drive at the area of the culverts and the bayou, creek and bay, these contaminants will be introduced into the ground water in the lake proper Although some increase in retention of storm water runoff may be expected, if the project were built, there would be a significant increase in the introduction of dissolved contaminants into waters over which the Respondent has jurisdiction, i.e., Bayou Marcus, Bayou Marcus Creek and Perdido Bay. Increases in these areas will occur in biochemical oxygen demand and undesirable nutrient and dissolved oxygen levels will decrease if this project is constructed. In association with this change, an increase in nuisance species would occur. The Petitioner has failed to do any background sampling to establish the natural background levels of the aforementioned conditions in waters of the State in order to identify whether water quality in the receiving waters would be degraded from existing conditions to the extent of violating the Department's water quality criteria.
Recommendation Based upon a full consideration of the facts as presented and the Conclusions of Law reached in this matter, it is RECOMMENDED that the Secretary of the State of Florida, Department of Environmental Regulation, deny the Petitioner a dredge and fill permit pursuant to Rule 17-4.28, Florida Administrative Code; a construction, operating and maintenance permit pursuant to Section 403.087, Florida Statutes; a ground water permit in accordance with Rules 17-3.071, Florida Administrative Code, and 17- 4.245, Florida Administrative Code; and be it further RECOMMENDED that the Secretary take no further action to require a permit(s) as might be indicated in keeping with Chapter 253, Florida statutes. 1/ DONE AND ENTERED this 22nd day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a final order finding that the proposed storm water discharge from the Fairfield Village site be determined to have no significant impact on the water quality of the state of Florida. It is further RECOMMENDED that the petition of the Concerned Citizens of West Escambia County, Florida, be dismissed for failure to establish by a preponderance of the evidence that its substantial interests will be adversely affected by the proposed discharge. DONE AND ENTERED this 23rd day of December 1980 in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 23rd day of December 1980.
The Issue The issue to be determined in this case is whether All Aboard Florida – Operations, LLC (“the Applicant”); Ram Land Holdings, LLC (“RLH”); and J. Acquisitions Brevard, LLC (“JAB”), are entitled to the Environmental Resource Permit (“ERP”) issued by the St. Johns River Water Management District (“SJRWMD”) for construction and operation of certain railway facilities within the portion of the Florida East Coast Railway corridor known as Segment D08 (the “Project”).
Findings Of Fact The Parties The Petitioner is a water control district organized under chapters 189 and 298, Florida Statutes. It owns and maintains the North, Main, and South Canals in Indian River County. The Petitioner manages drainage works for approximately 55,000 acres within Indian River County situated west of the Indian River Lagoon between U.S. 1 and I-95, including portions of the City of Vero Beach. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company headquartered in Miami, Florida, formed for the principal purpose of developing and operating express passenger rail service connecting the four largest urban population centers in Southern and Central Florida--Miami, Fort Lauderdale, West Palm Beach, and Orlando. This project is known as the All Aboard Florida Project. Respondents, RAM Land Holdings, LLC, and J. Acquisitions Brevard, LLC, are third-party mitigation providers. The parties stipulated that RLH and JAB are not necessary parties to this proceeding. SJRWMD is an independent special district created by chapter 373, charged with the duty to prevent harm to the water resources of the District and to administer and enforce chapter 373 and the rules promulgated thereunder. The proposed project is within the boundaries of the District. The Proposed Project Most of the Applicant’s passenger service route, including the portion which will pass through Indian River County, will use an existing railroad right-of-way established in the late 1800s by Henry Flagler, the founder of the Florida East Coast Railway (“FECR”). The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It was designed to support passenger and freight operations on shared double mainline tracks and was in use from 1895 to 1968. The passenger service was then terminated and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The Project would restore the passenger service that once existed on the FECR rail corridor. The passenger service route will utilize the FECR right-of-way from Miami to Cocoa Beach and then continue along a new segment to be constructed along a limited-access highway system which runs inland from Cocoa Beach to Orlando. The Applicant is proposing to upgrade the portion of the FECR right-of-way between Miami and Cocoa Beach by, among other things, replacing existing railroad ties and tracks and reinstalling double tracks. This proceeding involves only Segment D08 of the proposed Project. Segment D08 runs from the southern edge of Indian River County to Cocoa Beach in Brevard County. In Segment DO8, the existing FECR railway includes bridges which cross the North Canal, Main Canal, and South Canal owned and maintained by the Petitioner. The bridges are referred to as the North Canal Bridge, the Main Canal Bridge, and the South Canal Bridge. Each bridge supports a single track. The Project calls for adding new bridges alongside the three existing bridges over the canals so that the crossings will again accommodate two tracks. The Petitioner’s objections to the proposed permit are confined to the proposed bridges at the North Canal and South Canal. The new bridge at the North Canal would be constructed along the west side of the existing bridge. The new bridge at the South Canal would be constructed along the east side of the existing bridge. Obstruction of Water Flow The Petitioner’s main objection to the proposed project is that the proposed new bridges over the North Canal and South Canal are too low to allow clearance during a 100-year storm event, which would cause water flow to be obstructed. The Petitioner believes floating debris is likely to be blocked and accumulate at the bridges, causing water to back up and flood lands upstream of the bridges. The Petitioner’s Superintendent, David Gunter, testified that there were “a couple of events where debris backed up either at a bridge or a culvert.” However, he said none of the Petitioner’s ratepayers ever had a flooding event that was attributable to the FECR bridges. The new bridges would be constructed with the same low chord/beam elevations (lowest part of the bridge) as the existing bridges that would remain. For the existing bridge and the proposed new bridge over the North Canal, the low beam elevation is 13.1 feet NAVD88 (North American Vertical Datum 1988). For the existing bridge and the proposed new bridge at the South Canal, the low beam elevation is 8.5 feet NAVD88. Because the proposed new bridges would be at the same height above the canals as the existing bridges, the potential problem the Petitioner is concerned about--floating debris being trapped by the bridges--is already a potential problem. The Petitioner did not claim or present evidence to show that the new bridges would increase the probability that floating debris would be trapped, over and above the current probability for such an event. The Petitioner argued that “two wrongs don’t make a right,” and the new bridges should not be approved even though they are at the same height as the existing bridges. Obviously, the Petitioner wants the existing bridges raised, too. Based on the FEMA Flood Insurance Rate Maps used by the Applicant, the 100-year flood elevation at the North Canal bridge is 11.5 feet NAVD88, or 1.6 feet below the low beam elevation of the North Canal Bridge. The 100-year flood elevation at the South Canal Bridge is 9.3 feet NAVD88, or 0.8 feet below the low beam elevation of the North Canal Bridge.1/ The Applicant’s consultants performed hydrologic and hydraulic analyses for the proposed new bridges using a HEC-RAS model which was adapted to local site-specific conditions and incorporated FEMA flood level data. They determined that in a 100-year storm event, the new bridge at the North Canal would cause no more than a 0.04-foot (0.48 inches) increase in water levels immediately upstream (within 500 feet) of the bridge, and the new bridge at the South Canal would result in no more than a 0.07-foot (0.84 inches) increase in water levels immediately upstream. These were considered insignificant impacts that would not cause flooding to upstream properties. The Petitioner disputes the Applicant’s determination that there is a 1.6-foot clearance at the North Canal Bridge and a 0.8-foot clearance at the South Canal Bridge. The Petitioner asserts that the FEMA elevations used by the Applicant are not based on the best available data, and the best available data show the 100-year flood elevations are higher. The Petitioner calculated higher 100-year flood elevations using SJRWMD flood stage gages in the canal near the North bridge and the Petitioner’s own hydrologic model. The Petitioner determined that the low beam at the North Canal bridge is 0.6 feet below the 100-year flood level, and the low beam at the South Canal bridge is 1.5 feet below the 100-year flood level.2/ In other words, the Petitioner contends there is no clearance. The Petitioner’s witness, Simons, testified about why he thought FEMA did not use the Petitioner’s water level data and analysis in determining 100-year flood elevations for the FEMA flood maps, but the testimony was largely hearsay. SJRWMD’s Applicant’s Handbook refers to the use of FEMA flood level data for these kinds of analyses, but it also refers to the use of “detailed information” possessed by SJRWMD. See Section 3.3.4, A.H., Vol II. Information possessed by SJRWMD would likely include data from their own water level gages. The Petitioner did not present sufficient evidence to prove their data and modeling was more accurate or reliable than FEMA data and the Applicant’s modeling. FEMA flood insurance rate maps are a standard reference in the industry. The HEC-RAS model is a generally accepted tool used by engineers for this kind of analysis. None of the parties presented evidence to make clear what is the usual or industry protocol for choosing between conflicting data of this kind in the permitting process. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. It is found, therefore, that the Applicant’s use of FEMA data and the HEC-RAS model was reasonable. The Petitioner admitted that the 100-year flood elevation in the canals has been increasing over time because of the conversion of land uses in the area from agricultural to urban. Because the Petitioner regulates discharges to its canals, it has some responsibility for the rising water levels in its canals. The Petitioner claimed that reduced clearance was due in part to the bridges from “age, use, lack of maintenance, frugality or causes other than design.” However, the Petitioner presented no supporting evidence for this allegation in the record. In its regulatory role, the Petitioner requires a minimum clearance of one foot between a bridge’s lowest horizontal beam and the 100-year flood elevation to avoid obstruction of water flow through the canals. SJRWMD rules do not specify that bridges be designed to have a minimum clearance above the 100-year flood elevation. The applicable design standards for flood protection in the Applicant’s Handbook are set forth in Section 3.3.2(b), A.H., Vol. II, which provides in pertinent part as follows: Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other water courses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource. It is presumed a system will meet this criterion if the following are met: * * * A system may not cause a net reduction in the flood conveyance capabilities provided by a floodway except for structures elevated on pilings or traversing works. Such works, or other structures shall cause no more than a one-foot increase in the 100-year flood elevation immediately upstream and no more than one tenth of a foot increase in the 100- year flood elevation 500 feet upstream. The bridges would not cause more than a one-foot increase in the 100-year flood elevation immediately upstream or more than one tenth of a foot increase in the 100-year flood elevation 500 feet upstream. Therefore, the Applicant is presumed to have provided reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property, or adversely impact the existing surface water storage and conveyance capabilities of the North Canal or South Canal. The Petitioner argues that the SJRWMD criteria fail to account for floating debris. The Petitioner claims that bridge designers are obliged to follow basic design guidelines published by FDOT and other government agencies and provide clearance for floating debris, but Petitioner did not offer into evidence these “basic design standards” or prove their industry- wide acceptance.3/ SJRWMD’s engineer, Fariborz Zanganeh, stated that the potential for floating debris to be blocked by a bridge or any other traversing work is considered by SJRWMD to be an operation and maintenance issue, not a design issue. The Petitioner referred to some road bridges in the area that, upon reconstruction, were raised by county, state, or federal governments to comply with the Petitioner’s clearance requirement. First, it is noted that the Applicant does not propose to reconstruct the existing North Canal Bridge and South Canal Bridge. Second, there is a substantial difference between the effort and cost of raising a road and raising a railroad track. Raising the proposed bridges would require elevating the railroad bed for a considerable distance in each direction so that slopes comply with railway safety criteria. The Petitioner failed to prove the Project does not comply with SJRWMD flood control criteria. The Sand Bar The Petitioner also objects to the proposed bridge at the North Canal because the Petitioner contends the existing bridge pilings have caused a sand bar to form, and shoaling and erosion would likely increase with construction of additional pilings. The Petitioner believes the problem is caused by the fact that the existing and proposed pilings, which would have the same alignment, are not parallel to water flow in the canal. There are sand bars upstream of the bridge which cannot have been caused by the bridge pilings. The North Canal, which runs downstream almost due east makes a turn to the northeast under the North Canal Bridge. The record evidence, as well as generally known facts of which the Administrative Law Judge may take official recognition, establish that a change in the direction of water flow in a channel creates non-uniform flow, which can cause erosion and shoaling. The Petitioner did not present evidence to distinguish between shoaling and erosion that could be caused by the pilings and shoaling and erosion that could be caused by the turn in the canal. The Petitioner did not call a witness for this subject who had special knowledge of the science of hydraulics and no study was done by the Petitioner to confirm its theory of the cause. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. The Applicant asserts that the conditions of the proposed permit provide for maintenance that would include “the removal of any buildup of siltation that might occur over time and potentially cause the North Canal Bridge structure to cease operating as designed.” However, whether the bridge is operating as designed would not address whether the canal is operating as designed because of shoaling. There is no condition in the proposed permit that imposes on the Applicant the duty to remove built-up sediment beneath the North Canal Bridge. It is unlikely that such a requirement can be imposed on the Applicant because it does not own or control the canal. The Petitioner claims the railroad authority denied the Petitioner access to the right-of-way when it sought permission in the past to remove the sandbar at the North Canal Bridge. Unfortunately, a permit condition that requires the Applicant to cooperate with the Indian River Water Control District in performing canal maintenance at the bridges is probably not enforceable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. 135214-2, with the conditions set forth in the Technical Staff Report dated August 26, 2016. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
The Issue Whether Respondent's statements as set forth in the First Amended Petition to Determine Validity of Agency Statements Defined as Rules are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner alleges that the following constitute agency statements defined as rules but not properly adopted as rules by the District: The District considers a particular parcel of property to be located within a "floodway" within the District's regulatory jurisdiction for Works of the District (WOD) permitting on the basis of the parcel being located within a floodway established pursuant to a currently-approved Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS). The District will not accept any alternative floodway boundaries that are inconsistent with those established in the FIS unless FEMA confirms that the alternative boundaries are more accurate than those obtained from the existing FIS, and FEMA approves the alternative boundaries through a formal approval process, such as a Letter of Map Revision that also requires local government concurrence. If the District determines the parcel to be within its regulatory floodway, it will require an Environmental Resource Permit (ERP) application for any development activities within the floodway, other than those entitled to a general permit under Rule 40B-4.3010, Florida Administrative Code. The District will require an ERP for the activities described in paragraph "c" notwithstanding the fact that the Department is evaluating those same activities as part of an ERP application that has been submitted to the Department of Environmental Protection (Department) for the same activity in the same location under the terms of the Operating Agreement.1/ The District will evaluate an application to conduct development activities as described in paragraph "c" based upon the full range of ERP permitting criteria contained in the District's rules, even though the Department is processing an ERP application for the same activities pursuant to the Operating Agreement between the District and the Department. The District's policy is to deny or to object to the issuance of any permit application to conduct commercial mining operations in the WOD composed of the Alapaha River floodway. It is the policy of the District to consider any proposed development activity in a WOD, other than those eligible for a general permit under Rule 40B-4.3010, Florida Administrative Code, to have an adverse impact on the regulatory floodway, and thereby to be unpermittable by the District. The District's policies against allowing development activities in WODs apply even if a professional engineer certifies under Rule 40B-4.3030, Florida Administrative Code, that the activity will not violate the conditions of issuance set forth in the rule. The policies apply because the District will consider the development activities to violate ERP permitting rules applicable to all development activities, not just those within WODs. It is also the District's policy to ask the Department to deny ERP applications for development activities proposed in WODs that require ERPs even though the Department is processing the application pursuant to the Operating Agreement. The District's policy is to deny ERP applications to conduct commercial mining activities in WODs as determined by the FIS, and to recommend to the Department that ERP applications to the Department for such projects be denied, unless the applicant goes through the FEMA amendment process described in paragraph b to remove the area from the FEMA- determined floodway. Each party requests that it be granted costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes. Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. Respondent is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an ERP issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between Suwannee River Water Management District and Department of Environmental Protection (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the WOD impacts. It is the District's position that the District's review of any ERP application to undertake development activities in a WOD would be based upon all of the ERP criteria, and not just those criteria relating to floodway conveyance referenced in Rule 40B-4.3030, Florida Administrative Code. On or about November 30, 2001, the District published in the Florida Administrative Weekly a notice of its intent to adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate floodways for the purpose of its works of the district regulatory program. Facts Based on Evidence of Record Background/Events leading up to this dispute The total amount of the subject property owned by Petitioner is approximately 560 acres. The property is generally a rolling terrain. A significant feature is a man-made berm which was placed around the perimeter of the property by a former owner, presumably to keep water off of the land during floods of the Alapaha River. Dennis Price is a self-employed registered professional geologist. At one time, he was employed by the District and at another time, he was employed by Petitioner. For purposes of this proceeding, he was hired by Petitioner as a consultant for certain permitting projects including the project that gave rise to this dispute. Mr. Price met with and corresponded with the District as well as staff from the Department over a period of two years regarding this mining project. In June of 1999, the Department wrote to Mr. Price in response to a meeting. The letter noted that Petitioner intended to expand mining operations. In addition to informing Mr. Price of the Department's permit requirements, the letter referenced the District's permitting requirements: Mr. Still provided us with an aerial photograph showing the SRWMD's regulated floodway in the area of your mine. A copy is enclosed with the floodway line highlighted in orange. A substantial portion of your proposed expansion area will be within this floodway. The SRWMD has adopted the Alapaha River and its floodway as a works of the district. The Department adopted the SRWMD's regulations pertaining to the environmental resource permit; however, this did not include the regulations pertaining to projects within works of the district. If your permit application only includes areas outside of the floodway, a single application will have to be provided to this bureau. If you intend to expand within the floodway, a separate application will also have to be provided to the SRWMD for a works of the district permit. In either situation, the Department's Jacksonville office will review any modifications to your industrial wastewater permit. (emphasis supplied)2/ In response, Mr. Price wrote to the Department in July of 1999 and stated in pertinent part: Dear Mr. Neel, this letter is in response to your June 22, 1999 letter "RE: Permits for Mining Operation". Angelo's currently has a Sand and Limestone General Permit from DEP - General Permit Number FLA011635. That permit is based on a 5 year mining plan that was presented to the DEP on January 11, 1999. The permit, my letter and the 5 year mining plan presented to DEP are enclosed. Another attachment is an aerial photo of the property showing the Regulatory Floodway line and the location of the areas to be mined under that 5 year mining plan. The aerial photograph has superimposed upon it the location of the floodway of the Alapaha River, as determined by FEMA maps. Please note that the 5 year mining plan and the associated storage and processing areas are outside the regulatory floodway. Therefore, no works of the district permit will be needed at this time. See FAC Rule 40B-4.300(1)(a) [sic]. Future mining beyond the five year mine plan will not occur without first applying for and obtaining permits from the appropriate regulatory agency. At the present time we will only mine areas within the 5 year mine plan. We will have an engineer field locate the floodway line on the property to ensure that no mining or associated storage and process activities occur within the floodway. We are requesting that the ERP permitting process remain within the DEP bureau of Mine Reclamation since the DEP has already issued a general permit for this activity and the DEP normally handles ERP's for mining operations. We have determined that the mining area will be less than 100 acres, and based on Rule 40B-4.2020(2)(B) FAC a general permit may be applied for. We will notify you when we have a draft application prepared and would like to meet with you at your earliest convenience after that to discuss the permit application. (emphasis supplied) In response to information which Mr. Price provided to the Department, the Department wrote to Mr. Price in December of 1999 and again addressed concerns about the area of the project in relation to the floodway line: Specific Item: FLOODWAY Information submitted in response to the request for additional information (RAI) dated August 12, 1999, indicates that Angelo's proposed project boundary and activities extend up to and coincide with the Floodway Line. There appears to be no set-back or buffer from the Floodway (or any other) Line. Chapter 40B-4, Florida Administrative Code (F.A.C.), contains the rules for the Suwannee River Water Management Area which were adopted by the Department of Environmental Protection. Section 40B-4.2010(2)(b)(3)(b) provides that a General Permit may be issued for construction, operation, and maintenance of a surfacewater management system servicing a total project area less than 120 acres provided the system will not be located in, cross or connect to a work of the district. Information submitted with this (November 12, 1999) submittal indicates that the proposed activities within the proposed project coincides with, or is so closely located to, the Floodway Line so as to indicate that the proposed activities would be considered to be connected to a work of the district. This is based upon examination of the plan views and [sic] well as cross section information that has been provided. Please provide a discussion, and drawings as may be needed, that addresses all activities along the established Floodway Line. This information should address all aspects of all operations along this line through the completion of reclamation activities. Be sure to address best management practices, and any proposed setbacks in the response to this request. (emphasis in original)3/ Mr. Price described the proposed project as part of the permit application which was submitted to the Department: Describe in general terms the proposed project, system, or activity. Angelo's Aggregate Materials, Ltd. (AAM) owns approximately 341 acres of land. The current mining site, known as the Jasper Pit, is located on a 160 acre parcel of land. Of the 160 acres, only 82.45 acres are available for mining since the remainder of the property falls within the floodway boundary of the Alapaha River. The 160 acre parcel has an existing berm around the entire perimeter of the property constructed in the 1950's by the previous owner. The Alapaha flood study conducted for FEMA did not take into account this berm. AAM is proposing to construct a 20' wide access road between NW 8th Boulevard and the Jasper Pit, encompassing approximately 7.22 acres. This roadway will be constructed within the limits of property owned by AAM. The stormwater management system for the roadway will consist entirely of grassed swales as covered under FDEP's swale exemption. The Jasper Pit is a sand and limestone mining operation. (emphasis supplied) On August 28, 2001, David Still, the District's Director of Resource Management, wrote a letter to the Department in response to a request received by e-mail from the Department for technical assistance. Mr. Still responds to requests for technical assistance from other agencies as a matter of routine and as contemplated by the operating agreement between the Department and the District. The letter reads as follows: The floodway along the Alapaha River was identified and mapped as part of a Federal Emergency Management Association (FEMA) flood study performed by the United States Army Corps of Engineers, subsequently approved by FEMA and adopted as part of the local government (Hamilton County) ordinance. Based on the above, Suwannee River Water Management District (SRWMD) then adopted the floodway as a Work of the District (WOD). There is only one floodway. SRWMD recognizes and accepts the FEMA flood study performed by the U.S. Army Corps of Engineers and local government (Hamilton County) floodway boundary as the best available information to identify the floodway boundary. There is a formal process whereby change can be made to the FEMA boundary with additional or improved information. If FEMA and Hamilton County approve a revised floodway delineation and boundary, so be it, SRWMD will recognize it, however, SRWMD will not unilaterally change a boundary resulting from a detailed federal flood insurance study. We have informed Mr. Thompson and his client of this. We consider the kind of work contemplated by the applicant (at least based on our earliest discussions with them) will cause an adverse impact to the WOD (the floodway) which of course is in conflict with the requirements of 40B-400.103(1)(h) and SRWMD 40B-4, Part III, Florida Administrative Code (F.A.C.). The District will object to the issuance of any permit in direct conflict with District rules. We feel the rule is clear and any conflict with 40B-400.103(1)(h), F.A.C. which the Florida Department of Environmental Protection has adopted by reference requires denial of the Environmental Resource Permit (ERP) application. Any work of this nature within a WOD is subject to the additional permitting requirements of 40B-4, Part III, F.A.C., even if the District needs to implement such requirements with a separate WOD permit. Mr. Still's reference to "the applicant" in the August 28, 2001, letter is to Petitioner. While Mr. Still is not the agency head, his August 28, 2001, letter clearly communicates the District's policy. Given his position in the agency and the manner in which he discussed this issue, the letter describes and communicates the District's policy on what constitutes a floodway and its boundary. Mr. Still does not have final authority to make decisions on permitting within the District, as that authority rests with the governing board. In a letter written on October 10, 2001, in response to a letter from Petitioner's counsel, Mr. Still stated that District staff would recommend to their governing board that Petitioner's proposed activity is an activity within a floodway that is regulated under Chapter 40B-4, Part III, Florida Administrative Code, and that the proposed activity would adversely impact the floodway: "Therefore, as staff, we would recommend our governing board consider this activity adverse to our rules." This letter is case specific to Petitioner. Within a few days of Mr. Still's October 10, 2001, letter, Petitioner filed its Petition to Determine Validity of Agency Statements Defined as Rules. Other facts established by the evidence of record The District uses FEMA FIRM maps as evidence of the location of the floodways in the works of the district. The District communicated this policy in Mr. Still's letter dated August 28, 2001. The District will not unilaterally change the floodway delineation and boundary established by FEMA. In order for an applicant to persuade the District that a proposed activity within the FEMA floodway line is not within the District's floodway, an applicant must apply to FEMA for a map amendment or revision. The District will acknowledge that a proposed activity is not within the floodway of a work of the district only if the applicant is successful in obtaining a map amendment or revision showing that the proposed activity indeed is not within the floodway. The District has applied this policy to another company which applied for a permit. That is, the District required the permit applicant to apply to FEMA for a map revision or amendment as a condition of issuance of a permit because its proposed activity was within the FEMA floodway as established by the FEMA maps. Petitioner has not filed a permit application with the District regarding the proposed mining project. It is Petitioner's position that to do so would be futile.
Findings Of Fact The Petitioner is the owner of real property located in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run Subdivision. The property is approximately one acre in size and was purchased in December of 1989. The subdivision is unrecorded, and there was no testimony regarding a platting date thereof. On January 17, 1990, the Petitioner made an application for an OSDS permit for the aforesaid property. The application was for a new single-family mobile home system. The residence involved will contain two bedrooms and a heated and cooled area of approximately 480 square feet, with an approximate 300-gallon-per-day sewage flow. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood elevation for the property. The Petitioner, therefore, obtained the services of a registered land surveyor, who established a benchmark elevation for the subject property of 19.23 feet above mean sea level ("MSL"). The mark is actually 6 inches above ground level. The actual elevation of the surface grade of the property at the proposed septic tank system installation site is 19 feet above MSL. The ground water level at the time of the evaluation of the site by the Department's personnel was 66 inches below the surface of the lot. The wet season ground water or water table level is 60 inches below the surface of the lot. The property is characterized by slight to moderate limited soils, consisting of fine sand from 6 inches depth down to 60 inches depth. The first 6 inches of soil near the surface of the property is organic in nature. The information, contained in a report promulgated by the Suwannee River Water Management District and submitted to the Department by the Petitioner with the permit application, shows that the ten-year flood elevation for the property in question is 23 feet above MSL. That ten-year flood elevation was not refuted. The property, thus, is located within the ten-year flood plain of the Suwannee River; and it is also located within the "regulatory floodway". There is not a central water system available to the property, and potable water for the subject dwelling will come from a well. In addition to lying beneath the ten-year flood elevation, the property lies within the regulatory floodway of the Suwannee River, as mentioned above. This means that if a mounded septic tank and drain-field system were installed, (which would likely result in appropriate treatment of the sewage effluent because of site conditions referenced herein); in order to install such a system, to raise the drain fields above the ten-year flood elevation, a certification by a registered engineer would have to be performed to establish that the installation of the required volume of fill dirt for the mounded system would not cause an elevation of the "base flood". No such engineering testimony or evidence was offered in this proceeding, however. Thus, this portion of Rule 10-6.047(6), Florida Administrative Code, has not been complied with. The OSDS could appropriately be installed from an environmental standpoint, given the depth of appropriate moderate to slightly limited soils prevailing at the site and the depth of the water table. The estimated wet season water table is 60 inches below the existing surface grade, and the normal water table is 66 inches below the surface grade. Although organic soil prevails for the first 6 inches at the site; below the first 6 inches, the soils are characterized as being fine sand. This soil type and condition, as well as the depth of the water table below the location of the drain field and septic tank site establishes that installation and operation of an OSDS in this location would likely be successful. Since the property and the installation site are beneath the ten-year flood elevation, however, a mounded system would have to be installed to raise the bottom of the drain-field trenches or absorption beds above that ten-year flood elevation referenced above. Thus, although a mounded system would appear to be feasible, the appropriate engineering testimony, with regard to its presence in the regulatory floodway, was not offered. Thus, the grant of the permit based upon mounding of the system as a reasonable alternative approach to successful treatment and disposal of the effluent in question has not been established. The Respondent, by letter of April 24, 1990, advised the Petitioner of the denial of the OSDS permit and also advised the Petitioner that he should pursue a formal administrative proceeding before the Division of Administrative Hearings, rather than file an informal variance application before the Respondent's own variance board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property was located within the ten- year flood elevation of the Suwannee River and because of the Respondent's interpretation of the effect of the Governor's Executive Order No. 90-14, which adopted by reference the Suwannee River Task Force recommendation that all such OSDS's be prohibited within the ten-year flood elevation. The Respondent thus declined to exercise its discretion, accorded it in the statute and rules cited hereinbelow, to entertain and consider a variance application. It was established that the lot in question is not subject to frequent flooding. However, because the surface grade is beneath the ten-year flood elevation, the bottom of the drain-field trenches or absorption beds would also be beneath the ten-year flood elevation, although the property is amenable to the installation of an effective OSDS otherwise because of the depth of the wet season water table and the types of soil prevailing at the site. The Petitioner established a hardship due to the fact that he has paid a substantial sum of money for the property and now is unable to develop it unless entitlement to an OSDS or some reasonable alternative is gained. No substantial proof of a truly-effective, reasonable alternative method of treating the effluent in question was established by the Petitioner. The Petitioner did establish, however, that a mounded system could be made to successfully operate, treat and dispose of the sewage effluent. A mounded system, however, would necessitate the required engineering certification and calculations before installation. No such effort has been made with appropriate engineering personnel and no evidence of such was adduced in this proceeding. The Petitioner has also raised the possibility that an aerobic septic tank and drain-field system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria, which break down and treat sewage at a faster, more effective rate than does the normal, anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal, subterranean anaerobic septic tank and drain-field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially an external electric motor and pump to force air into the system. This is disadvantageous in that if the equipment suffers a malfunction, the high level of treatment and disposal of the effluent is retarded. When the electric motor and/or pump malfunction and air is no longer injected into the septic tank to support the more active aerobic treatment bacteria, the system then ceases functioning as an aerobic system and becomes a simple anaerobic system using less effective anaerobic bacteria. In other words, it functions as a normal septic tank and drain-field system. If it has been installed in an area with marginal or deficient natural treatment conditions, such as inappropriate soils, high-water tables, or low surface elevations, beneath the ten-year flood elevation, for instance; the sewage, which is no longer being treated aerobically, can pose a threat to public health and the quality of the ground or surface waters involved at the site. The untreated or inadequately-treated sewage can rise to the surface of the property, back up in the residential toilets, or otherwise pollute ground or surface waters, if water table levels are too high. Thus, such systems would require inspection periodically to insure that they are in adequate working order, because if the mechanical system malfunctions, the system will continue to put effluent through its drain field, like a normal septic tank drain-field system, but without adequate treatment for a "low elevation" site such as this. In that circumstance, the occupants of the dwelling involved might not notice for long periods of time that the system is inoperative because it can continue to dispose of the effluent without it backing up into the residence. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that an aerobic system operates properly at all times was not established in this record, however. The Department does not have the regulatory authority at the present time to conduct such periodic inspections nor the personnel or funds to do so. Consequently, the Petitioner failed to establish that reasonable alternatives to the proposed conventional OSDS exist.
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. 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact Accepted. Accepted, but irrelevant. Rejected, as immaterial. Rejected, as immaterial. Rejected, as immaterial and irrelevant. This is not a rule challenge proceeding, pursuant to Section 120.56, Florida Statutes. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-11. Accepted. Respondent's Proposed Findings of Fact 1-10. 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 Richard Remington 165 Forest View Drive Land O'Lakes, FL 34638 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system (OSDS) permit or is entitled to a variance from the permitting requirements in the below-cited statutory provision and related rules, so as to be authorized to install an OSDS on his property near the Suwannee River in Dixie County, Florida. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner owns certain real property in Dixie County, Florida in the vicinity of the town of Suwannee. The property is more particularly described as Lot 511, Suwannee Shores III. The property is located in Section 19, Township l3 South, Range 12 East, in Dixie County. The lot is approximately 50 feet by 100 feet in size and was purchased in 1985. The Petitioner made application for an OSDS permit on March 8, 1990 for the property. The residence which the proposed system would serve consists of a heated or cooled area of approximately 24 by 34 feet. The Petitioner had an elevation of the property at the proposed installation site performed by a registered land surveyor at the behest of the Department, when he learned from the Department representative that such would be required before a permit could be granted. The Department also required the Petitioner to furnish evidence of whether the property was above or below the ten-year flood elevation. Accordingly, Petitioner's exhibit 1 establishes a benchmark elevation of 4.1 feet above main sea level (MSL) for the property and installation site. The ten-year flood elevation for the property in question is 17 feet above MSL. This is established by a report prepared by the Suwannee River Water Management District and admitted into evidence without objection, based upon records maintained by the Water Management District which contain data from the Federal Emergency Management Administration (FEMA). That data shows that for the river mile of the Suwannee River where the property is located, which is river mile 3, that the ten-year flood elevation is 17 feet above MSL. Thus, the property in question is located within the ten-year flood elevation of the Suwannee River. It is not, however, located within the regulatory floodway of the Suwannee River. Thus, the Petitioner has not established that the property is above the ten-year flood elevation for the Suwannee River. Nor have they established that a sufficient differential exists between the bottom of the proposed location of the drain field trenches and the wet season water table. In fact, Respondent's composite exhibit 1 and the testimony of Mr. Fross establishes that the wet season water table is only approximately 3 inches beneath the surface of the existing grade of the lot. The water table existing at the time of the site evaluation by Mr. Fross was only 36 inches below existing grade which would not allow sufficient differential between the bottom of the drain field trench and the water table, because less than 24 inches would separate the two planes. The results of Mr. Fross's site evaluation do show that the proper "slight limited" soils exist at the site down to a depth of 36 inches, at least where the water table existed at the time of the evaluation. It was also established that the property has a potable water supply from a central water system for the town of Suwannee and, therefore, the various set back distance related to the distance the proposed septic tank and drain field have to be separated from a potable water well or wells would not apply. These last two factors showing compliance with the portions of the rule which dictates the type of soils which must be present for such a system to be installed and the protection for potable water supplies, are insufficient to justify grant of the permit, however. The fact remains that the property is some 12.9 feet beneath the ten-year flood elevation and that it is not possible, starting from the existing grade to install a septic tank and drain field system at sufficient elevation above the water table at the present time, or the wet season water table, so that an appropriate distance for effluent to be treated in appropriate slight limited soil will exist. Finally, the Petitioner did not establish any reasonable alternatives to treatment of the effluent from the residence to be placed on the lot and thus did not establish that a means can be found to prevent the effluent from the OSDS from adversely impacting the public health or the surface or ground waters involved at the disposal site. Thus, it has not been established that any type of OSDS sought to be installed upon the lot in question would be an immaterial deviation from the permitting requirements in the statute and rules cited below. The Petitioner did not formerly apply for a variance from the permitting statute and rules. This is because the Department advised him that availing himself of the informal variance procedure would be futile because the Governor's Executive Order 90-14, entered on January 17, 1990, in the view of the Department, took away the Department's discretion to entertain variance applications and to consider whether to grant them for properties lying beneath the ten-year flood elevation of the Suwannee River. That Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation be prohibited, by its adoption, by reference, of the Suwannee River Task Force recommendations. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner definitely will undergo a hardship if a permit or variance is not granted because of the money expended to purchase the lot, which will be largely unusable without the ability to establish a residence on it by installing an OSDS. It has not been proven by the Petitioner that no reasonable alternatives exist to the installation of a conventional OSDS subterranean- type system on the lot. Thus, one element of the variance criteria cited below has not been met nor has it been established that the installation of an OSDS would not have an adverse impact on public health and would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of the Petitioner's entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof. It particularly has not been established that a grant of an OSDS permit or variance for such a system to be installed in this lot would not be a substantial deviation from the permitting requirements enumerated below. This is particularly true because the property is such a great distance beneath the ten-year flood elevation. In summary, in addition to the findings in the last above paragraph, it has not been established that a sufficient distance between the water table elevations and the bottom of the proposed drain field trench location will exist so as to comply with the permitting requirements in this regard so as to justify the grant of an OSDS permit nor has it been shown that the property is above the ten-year flood elevation for purposes of that permitting requirement and Rule 10D-6.47(6), Florida Administrative Code.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of Marvin H. Osteen, Jr. for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3115 Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Marvin H. Osteen, Jr. Post Office Box 89 Suwannee, FL 32521 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
