The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.
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 a variance from the statutory and regulatory requirements for an OSDS permit. DONE AND ENTERED this 10th 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, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111 Respondent' Proposed Findings of Fact: All of Respondent's proposed findings of fact are 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 Marilou Clark Suwannee Plantation Realty Rt. 3, Box 73 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 29 day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424 Petitioner's Proposed Findings of Fact 1-7. Accepted. Respondent's Proposed Findings of Fact The Respondent submitted no proposed findings of facts. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Conrad C. Bishop, Jr., Esq. P.O. Box 167 411 N. Washington Street Perry, FL 32347
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioners, Jerome Silcox and Shannon Silcox have applied for an OSDS permit seeking authorization to install a septic tank and drainfield sewage treatment and disposal system on their lots 311 and 312 of Suwannee Shores Edition, NO. 2 subdivision. The property generally is located in the town of Suwannee, Florida in Dixie County near the point where the Suwannee River empties into the Gulf of Mexico. The property is located at "river mile 3." Prior to purchasing the property the applicants had made inquiry with the Department of Health and Rehabilitative Services (Department)(HRS) concerning the acceptability of using an existing septic tank and drainfield system already on the property. That inquiry was made on or about June 29, 1989. A Department representative for Dixie County, inspected the site and issued an opinion to the Petitioners that the existing septic tank was adequate to accommodate a one bedroom residence. The Petitioner subsequently decided to construct a residence on the property for a residence containing approximately three bedrooms. Accordingly they made application through the Dixie County Health Department of HRS for a permit to authorize installation of a 750 gallon septic tank and drainfield treatment and disposal system for the property. The environmental health officer for the Dixie County Health Department of HRS visited the property on March 15, 1990. After examination of the property the health officer determined that the construction of a septic tank system employing a three foot mound above the natural surface grade of the property would be adequate to serve the residence proposed to be constructed on the lots and would comport with the permitting rules, in his opinion. The health officer required that the applicants submit a survey identifying the elevation of their property at the installation site and required them to secure a determination from the Suwannee River Water Management District (District) concerning the elevation of the ten-year flood plain with respect to the property and particularly the installation site. The applicants obtained a survey of the property by Hubert H. Raker, a registered land surveyor. He established the benchmark elevation for the installation site and, based upon that elevation, determined that the actual elevation of the surface grade of the property at the installation site was 4.98 feet above mean sea level (MSL). On or about March 7, 1990 the applicants received a "flood elevation information report" from the District. That report stated that the ten-year flood elevation of the Suwannee River at the installation site was 17 feet above MSL. The report also stated that the property was not located within the regulatory floodway of the Suwannee River. The report of the District concerning flood elevations as well as the elevation survey by Mr. Raker were submitted to the Department's Dixie County office. Thereafter it was reviewed by a different environmental health officer and ultimately the environmental health director for the Department issued a denial letter. The letter denied the permit to install the OSDS because "the bottom surface of the drainfield trench shall not be subject to flooding based' on ten-year flood elevations". Thus the Department takes the position that the bottom surface of the drainfield trench or trenches in the system, as proposed, would be beneath the ten-year flood elevation and therefore in contravention of Rule 10D-6.047(6), Florida Administrative Code. The health officer also opined that the Governor's Executive Order 90-14 had the effect of prohibiting any construction of mounded septic tank and drainfield systems within the ten-year flood elevation as well. Petitioner's property has a benchmark elevation of 5.48 feet above MSL and the actual elevation of the grade surface is 4.98 feet above MSL. The soils characterizing the proposed installation site are organic soils for six inches beneath the surface and then brown, fine sand down to twelve inches. At twelve inches beneath the surface is an impermeable barrier of lime rock. There was no "mottling" or evidence of damp soils, that relates to the possible level of the wet season water table, above that lime rock strata. There was no other indicia of the water table above that lime rock strata. Consequently, the wet season and normal water table levels are beneath the lime rock strata which occurs twelve inches subsurface. The Petitioners proposed, and Mr. Fross acknowledged iii his testimony, that mounding the system proposed to be installed, by placing it in a filled mound of at least 36 inches height above the existing grade level of the lot would be environmentally preferable to installing a septic tank and drainfield system in the natural surface and subsurface of the lot in question, in terms of better protecting the ground and surface waters in the vicinity of the site from degradation through improperly treated sewage effluent. Since the water table elevation is beneath the lime rock strata, which is twelve inches subsurface, if a 36 inch mound were installed on the site for the drainfield trenches or absorption beds, and if appropriate "slight or moderately limited" soils were used in the construction of the mound, a sufficient spatial differential of slight to moderate limited soils would exist for the required 24 inches beneath the bottom surface of the drainfield trenches and above the water table level. Thus a mounded system is a possible alternative, however, the Petitioners did not adduce sufficient evidence of technical data to show that such a system would indeed work properly in terms of having a sufficient, unobstructed land surface surrounding the mound in order to comport with the regulatory requirements in Chapter 10D-6, Florida Administrative Code. However, from the standpoint of having sufficient slight to moderate limited soils beneath the drainfield trenches if such a mound were used, assuming that the appropriate soils were used in construction of the mound and assuming that sufficient lot space is available to include the septic tank itself in the mound at an appropriate height above the existing grade and the limerock strata, it would appear that such a system would work adequately so as to protect the public health, the health of the applicants themselves and to prevent degradation of ground or surface waters. The technical details necessary to show that such a system would correctly operate on these lots, however, was not placed into evidence. There is no dispute, however, that the lot size involved is adequate and the site plan in evidence as Petitioner's exhibit 3 indicates that there is sufficient overall surface space on the two lots in question to accommodate such a mounded system. Thus, if the ten-year flood elevation obstacle to permitting did not exist it would seem that a mounded system could be designed and constructed so as to meet the regulatory requirements of Chapter 372, Florida Statutes and Chapter 10D-6, Florida Administrative Code. The Petitioners also suggest that an aerobic septic tank-drainfield system might effectively treat and dispose of the sewage effluent at issue in a manner so as to protect public health and the ground and surface waters involved. An aerobic system functions differently from the normal OSDS system, which is anaerobic in nature, because it functions with aerobic bacteria which require oxygen in order to grow and digest and convert sewage effluent into bacteriologically safe effluent. An aerobic system requires the use of an electric motor and pump system in order to force air into the septic tank so that aerobic bacteria can perform their function. The problem with aerobic systems, although they more effectively treat sewage effluent through a septic tank and drainfield system, is that they are subject to mechanical failure and monitoring the mechanical efficiency and proper operation of such a system can be a problem. If the mechanical motor and pump system malfunction, the system will still function as a normal septic tank and drainfield system and thus remove effluent from the residence so that the homeowner will not necessarily have to immediately effect repairs. This can cause inadequately treated effluent to be dispersed into the ground or surface waters or on the surface of the lot, posing a health hazard and potential degradation of ground or surface waters. The evidence offered by Petitioners does not establish how such a system could be made to work effectively and no detailed technical evidence was offered by Petitioners to show what type of such an aerobic system could be installed which would effectively operate at the installation site and under the circumstances where it might be proposed to be used. This is a possible alternative to the conventional subterranean system at issue but would require further evidence, which was not adduced, to show that it can be safely and effectively employed at the site in question. In any event, however, the proposed installation site was not shown to be above the ten-year flood elevation of the Suwannee River. Because of this, neither a mounded system nor an aerobic system has been shown to be capable of being installed at the site and comporting with the rules contained in Chapter 10D-6, Florida Administrative Code and, particularly, Rule 10D-6.047(6), Florida Administrative Code. That is, with either system in mind, it has not been demonstrated that the bottom of the drainfield trenches or absorption beds at issue, as envisioned in this rule, would be above the ten-year flood elevation. A report prepared by the Suwannee River Water Management District and submitted by the applicants with their application shows a ten-year flood elevation of 17 feet above MSL. The Petitioners adduced the testimony of Mr. William Pierce, an engineer with the District, in their case in chief. Mr. Pierce testified that this 17 foot elevation is indeed the elevation shown in the data contained in the computer model generated and maintained by the District. The information by which this computer model was designed and which resulted in the 17 foot elevation comes from U.S. Army Corps of Engineer data along with data from the Federal Emergency Management Agency (FEMA), the Hydraulic Engineering Center in Davis, California, the U.S. Geological Survey and the Oceanic and Atmosphere Administration. The storm surge component of that ten-year flood elevation came from data generated by a privately contracted study prepared for the federal agencies and supplied to the District. Through the testimony of Mr. Pierce, the Petitioners established substantial doubt as to the accuracy of the 17 foot ten-year flood elevation. Mr. Pierce established that the ten- year flood elevation figure for the Suwannee River decreases as it is measured from the waters of the Suwannee River many miles upstream from the town of Suwannee, when measurement proceeds in a downstream direction. Thus, for instance, the ten-year flood elevation at the town of White Springs, at river mile 177, upstream from the coast, is approximately 81 feet. The ten-year flood elevation at the location known as "Wilcox" some 33 miles above the confluence of the Suwannee River with the Gulf of Mexico is approximately 16 feet. This decreasing ten-year flood elevation figure, as progressively measured downstream toward the coast, is a natural incident to the fact that the elevation of the land surrounding the Suwannee River declines in elevation above sea level as the land elevation is measured going in a downstream or coastward direction. That is, as the surrounding upland elevation declines the waters of the Suwannee River, in a flood event, can spread outward from its channel over a wider area, due to being less confined by higher upland elevations, which results in the flood elevations being lower. Thus one would logically expect that if the ten-year flood elevation at Wilcox, 33 miles upstream, is 16 feet above MSL, then the flood elevation at the town of Suwannee, where the lots in question lie, at river mile 3, would be substantially lower. However, in the District's flood elevation data the element of "storm surge" is additively calculated into the ten-year flood elevation figure. This is designed to take into account surges caused by storms pushing water inland on the Gulf Coast where the Suwannee River makes its confluence with the Gulf of Mexico. According to the District's data and Mr. Pierce's testimony this would effectively raise the actual ten-year flood elevation level. The problem with the 17 foot, ten-year flood elevation figure is that Mr. Pierce was unable, in his testimony, to show how and why the storm surge closely correlates with the river flood stage to produce a 17 foot ten-year flood elevation at river mile 3 of the Suwannee River where these lots lie. Moreover, he was unable to establish in his testimony how the District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with a ten-year flood event for the Suwannee River or what they probability might be. Thus the Petitioner's evidence casts substantial doubt that the 17 foot, ten-year flood elevation figure is accurate and comports with logic. Thus it can be found herein that the 17 foot ten- year flood elevation figure has not been shown to be accurate. The problem remains however that the Petitioner must establish that the installation site in question does not occur beneath the ten-year flood elevation of the Suwannee River. The Petitioner adduced no evidence to establish what the ten-year flood elevation might actually be nor that the installation site lies above that elevation. Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drainfield trenches or absorption beds lies above the ten-year flood elevation so as to show that the installation site is not subject to inundation. The Petitioner did not formally apply for a variance from the permitting statute and rules, upon having the permit application initially denied by the Department. This is because the Department advised them, in effect, that it would be futile to apply for a variance and to avail themselves of the Department's informal variance procedure because of the effect of the Governor's Executive Order 90-14, entered on January 17, 1990. That Executive Order incorporated recommendation 36 of the "Suwannee River Task Force" report, which recommended that all OSDS installations lying beneath the ten-year flood elevation of the Suwannee River be prohibited and that grant of any permits for OSDS installations be done in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all on- site sewage disposal systems beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department thus takes the position that the entry of that Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and advised the Petitioners to avail themselves of the formal hearing procedure before the Division of Administrative Hearings rather than seek a variance through the Department's own internal variance procedure. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioners will definitely experience 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 thereon by installing an OSDS system, it has not been proven that no reasonable alternatives exist to the installation of a conventional OSDS subterranean type system on the property. The Petitioner proposed installation of a mounded system, which has some promise as a reasonable alternative system, although sufficient evidence was not adduced to establish that such a system would adequately treat and dispose of the effluent in question without causing a public health hazard or degradation of ground and surface waters, as discussed above. Nor was sufficient evidence of a lack of adverse environmental effects, in this regard, as to establish any other type of reasonable alternative approach to treatment and disposal of the expected sewage effluent. Thus one element of the variance criteria cited below has not been met. It has neither been established that the installation of an OSDS system of the conventional subterranean type nor any other type would not have an adverse impact on public health or would not cause degradation of the ground or surface water involved. Thus, to the extent the question of entitlement of 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, although there is a substantial likelihood that in a variance proceeding, with appropriate proof, the efficacy of the installation of a mounded system in relation to the requirements of the Department's rules could be established, aside from the question of the ten-year flood elevation.
Recommendation It is, accordingly, RECOMMENDED: That a final order be entered denying the application of the Petitioners for an onsite sewage disposal system permit. DONE and ENTERED this 31st day of December, 1990, in Tallahassee, 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 3rd day of January, 1991. APPENDIX Petitioner's Proposed Findings of Fact: 1 - 15 Accepted. Rejected as irrelevant since this is not a rule challenge proceeding pursuant to Section 120.56, Florida Statutes. - 29 Accepted. Respondent's Proposed Findings of Fact: 1 - 4 Accepted. Rejected as not in accordance with the preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. - 13 Accepted. 14 Rejected as subordinate to the Hearing Officer's findings of fact and as not entirely in accordance with the preponderant evidence. COPIES FURNISHED: Robert Moeller, Esquire P.O. Drawer 1419 Cross City, FL 32628 Frances Childers, Esquire HRS District 3 Legal Office 1000 N.E. 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
The Issue The issue to be resolved in this proceeding concerns whether Petitioner is entitled to a variance so as to allow the installation of an on-site sewage disposal system (OSDS) on the Petitioner's property located in Dixie County, Florida.
Findings Of Fact The Petitioner is the owner of Lot 24 of Hatchbend Upon Suwannee subdivision, a platted subdivision in Dixie County, Florida. The Petitioner purchased the lot for residential purposes and seeks to install an on-site sewage disposal system (septic tank) (OSDS) on that lot for purposes of serving a single family residence. The Petitioner originally filed a permit application seeking a permit authorizing installation and operation of an OSDS for that property. That permit application was filed on December 12, 1989. It was denied and the Petitioner sought a formal hearing before the Division of Administrative Hearings to contest that denial, which became Case No. 90-6134. That case was ultimately settled between the Petitioner and the Department and no permit application was granted. Instead, the Petitioner filed the subject application for a variance from the requirements of then Section 10D-6.047(6), Florida Administrative Code. The variance application was filed on June 21, 1991, with regard to Lot 24 only. By letter of October 9, 1991, the Department denied the application for variance and the Petitioner timely requested a hearing pursuant to Section 120.57(1), Florida Statutes, to contest that denial. Lot 24 of Hatchbend Upon Suwannee subdivision, owned by the Petitioner is located on the Suwannee River. The Petitioner submitted a report of the Suwannee River Water Management District, in evidence, which indicates that the subject property lies within the regulatory floodway of the Suwannee River. The two year flood elevation at that location is 19 feet above mean-sea level (MSL). The ten year floor elevation at the installation site is 29 feet above MSL. The elevation of the proposed septic tank system installation site is 17.5 feet above MSL. Department personnel performed an inspection and an evaluation of the site. It was thus found and established by testimony and evidence, presented through witness Fross, that the water table level during the wet season is at or above the surface of the property at the installation site and the dry season water table level is approximately 6 inches below the surface grade of the property at the installation site. This is the reason, together with the fact that the property lies within the regulatory floodway and beneath the ten year flood evaluation of the Suwannee River for the river mile at the site, that the inspector recommended denial of a permit for an OSDS for the property. The Petitioner maintained that the information originally submitted and obtained from the Suwannee River Water Management District had incorrectly indicated the river mile at the site. The ten year and two year flood elevations are calculated according to the river mile at a given site, river miles being measurements of the linear distance of the Suwannee River and the Suwannee River floor plain. However, if the lower ten year flood elevation prevailing at the river mile the Petitioner maintained equated with the project site was applicable, by the Petitioner's own admission, the site in question (and indeed any location on any of the nearby lots he owns) would be below that resulting ten year floor elevation level. Ms. Emily Wilson testified on behalf of the Respondent. It was established that the education, experience and certification of Ms. Wilson as a registered sanitarian, together with her graduate and post-graduate degrees in the area of environmental science, accord her expertise in the areas of environmental protection, sewage disposal and sanitation and she was accepted as an expert in those fields. It was thus established that installation and operation of a septic system on the Petitioner's property would pose a threat to the ground and surface water in the vicinity of the site due to the high water table levels and the fact that the property, including the proposed installation site, is subject to frequent flooding. The exposure of the septic tank drainfield to ground or flood waters would allow the release of pathogens into those waters, which could be carried along into the ground or surface waters when the flood receded. These pathogens would endanger the health of the Petitioner, surrounding land owners and other persons through contamination of the drinking water supply. The pathogens could also endanger persons using the river for recreational purposes. The Department produced photographs which were introduced into evidence establishing that the road leading to the property was underwater due to flooding in the spring of 1991. That road runs along the back of the Petitioner's property and is further removed from the river than the actual installation site where the Petitioner proposes to install a septic system. After the flood receded, the water marks on the trees in the area of the proposed installation site on the Petitioner's property indicate that the area had been submerged under approximately three feet of water. The property was established to be subject to frequent flooding. Ms. Wilson is aware that other systems can potentially be used to adequately contain and treat sewage generated by a residence such as that the Petitioner envisions, including a closed system characterized by no sewage discharge. The applicant however has not submitted a proposal for such a system for consideration by the Department. She is unaware of any other system of sewage disposal that has previously been approved for use in low areas similar to that prevailing at the Petitioner's property and installation site. The Petitioner purchased the property under a contract for deed. The contract for deed specifically states that the property was subject to frequent flooding at the time the Petitioner purchased the property and the Petitioner was aware of that. The Petitioner purchased the property in spite of that representation in the contract for deed. The construction and use of a mounded septic tank and drainfield system designed to elevate the septic tank and drainfield a sufficient required distance above the groundwater table and the ten year flood elevation level could potentially be installed, but the system would require a very large, high mound. It was not shown that the dimensions of the lot would permit the installation of the required mound base pad, and mound itself, of a sufficient size to properly elevate the proposed system so that a permit could be approved. The mounded system required under proper design parameters provided for in the Department's rules would cause the mounded system to approach or even exceed the entire width of Lot 24. A mounded system located in the regulatory floodway, as Petitioner's property is located, would require issuance of a separate permit from the Suwannee River Water Management District. There was no showing that the Petitioner sought such a permit nor any showing of the likelihood that such a permit could be granted at the time of the hearing. Additionally, the Department's rules require that a qualified engineer issue a certification with respect to the use of a mounded disposal system within the regulatory floodway which certifies that the insertion of fill material for constructing such a system in the floodway will not cause a rise in the level of the "base flood", also known as a "zero rise certificate." No such certification has been obtained. In order to establish compliance with the requirement for granting of a variance set forth in the legal authority cited below, the applicant must establish, among other things, that there is no reasonable alternative to the installation of the system proposed. The applicant has presented no evidence to show that there are no reasonable alternatives to the system proposed. Rather, the testimony and evidence indicates that indeed there may be alternative disposal systems and methods available, although the proof was not developed in this proceeding to establish what those might be. The consideration of another location for the system on a different lot or installation site presently owned by the Petitioner or of an alternative type of treatment and disposal system might be feasible but would require a new site evaluation and submission of appropriate information which could establish that a specific alternative system and/or location is feasible, in terms of the requirements in the statute and rules that no deleterious impacts to the ground or surface waters in the vicinity of the site would occur. Such an effort would have to be the subject of a separate permit application and is not at issue in this variance proceeding.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is therefore RECOMMENDED: that a Final Order be entered denying the Petitioner's application for a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above, which denial should be without prejudice to a later permit application which might offer full consideration of potential, reasonable alternative sewage treatment and disposal systems and methods in the manner envisioned in Rule 10D-6.0471, Florida Administrative Code and other pertinent rules. DONE and ENTERED this 24th day of August, 1992, in Tallahassee, 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 24th day of August, 1992. APPENDIX Respondent's Proposed Findings of Fact: All proposed finding of fact are accepted. The Petitioner presented no Proposed Findings of Fact but rather a posthearing pleading constituting, in effect, a closing legal argument. COPIES FURNISHED: Robert G. Prior 3106 Waverly Avenue Tampa, Florida 33269 Ralph J. McMurphy, Esquire 1000 Northeast 16th Avenue Gainesville, Florida 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit concerning property they own located in the vicinity of the Suwannee River in Dixie County, Florida. A related issue concerns whether the Petitioners are entitled to seek a variance from the permitting statute and rules at issue in view of Executive Order 90-14 issued by the Governor on January 1, 1990. The Department takes the position that this removes its discretion to consider variance requests for proposed OSDS installations for sites which lie beneath the ten-year flood elevation of the Suwannee River. See Rules 10D-6.043 through 047, Florida Administrative Code, and Section 381.272, Florida Statutes.
Findings Of Fact The Petitioners purchased real property approximately two miles downstream on the Suwannee River from the point where U.S. Highway 19 crosses the Suwannee River in Dixie County, Florida. They purchased the property on June 6, 1986. The property is located upon a canal which ultimately connects with the Suwannee River. The purchase price of the property was $15,000.00. The applicants paid $3500.00 as a down payment and thereafter have made payments on a Purchase Money First Mortgage in the amount of $255.83 per month. They purchased the property as an investment and as a place to construct a vacation home in the future. On or about February 1, 1990, the applicants filed an application to install an OSDS with the Dixie County Unit of the Florida Department of Health and Rehabilitative Services. An application for a variance from the permitting rules regarding installation and operation of OSDS's was also submitted. The applicant, Ricky R. Robson, applied for the variance apparently because his neighbor, the owner of the adjacent lot, had previously sought and obtained a variance the year before, authorizing him to construct a "mounded OSDS" on his property. The Petitioners, as required by the Department, obtained the services of a registered land surveyor, Herbert C. Parrish, Jr., to perform an elevation survey of the property and the installation site. That elevation survey was submitted with the application documents and showed the surface grade elevation of the installation site to be 11.8 feet above MSL. The Petitioners were also required by HRS to obtain a determination of the ten-year flood elevation for the property from the District. The initial report obtained from the District indicated that the elevation of the ten-year flood plain at the location of the Petitioners' property was 15 feet above MSL. On or about February 23, 1990, the Dixie County Environment Health Officer made an on-site inspection of the property. This inspection included soil borings and a general inspection of the property. The soil borings performed did not reveal the presence of any soil type which would preclude the installation of an OSDS. No vegetative species indicative of frequent flooding were noted. Nevertheless, the health officer determined that the property was subject to "frequent flooding" based upon the District's flood elevation report concerning the ten-year flood elevation. Therefore, the Petitioners' application for an OSDS permit was denied on that basis and on the health officer's belief that Executive Order 90-14 prohibited further construction of OSDS's, including mounded systems within the ten-year flood elevation. In his testimony at hearing, however, Mr. Fross acknowledged that his earlier reference to "frequent flooding" was in error and, indeed, the site is not subject to frequent flooding. The Petitioners elected not to pursue the application for variance after they were informed by the Environmental Health Officer that pursuing such a variance would be futile. This was because no further variances were to be considered or granted by the Department due to the perceived effect of the Governor's Executive Order 90-14 referenced above. That Executive Order adopted, by reference, the "Suwannee River Task Force" recommendation and precluded the installation of OSDS's below the ten-year flood elevation because of risk to health and to ground or surface waters. Subsequent to the initial denial of the application, the Petitioners supplied more detailed information regarding the location of their property to the District and the District issued an amended flood elevation determination indicating that the actual ten-year flood elevation at the location of their property is 14.64 feet above MSL. It has been established in this proceeding that that is the ten-year flood elevation at the Petitioners' property and installation site. There is, thus, a 2.84 foot difference between the surface elevation of the Petitioners' installation site and the ten-year flood elevation. The installation site is characterized by slight-limited soils, consisting of fine sand extending at least 72 inches below the surface grade of the installation site. Additionally, the wet season water table was found to be at least 72 inches beneath the surface grade of the property. Thus, in terms of soil characteristics and water table elevations, the site is certainly appropriate, under the guidelines contained in the rules cited herein, for installation of a conventional subterranean septic tank and drain field system, but for the deficiency under Rule 10D-6.047, Florida Administrative Code, concerning the bottom surface of the drain field or absorption beds being beneath the ten-year flood elevation. The Petitioners have proposed an alternative solution to the problem involving the surface elevation of the property. That solution would involve the installation of a mounded system which would raise the bottom surface of the drain field trenches or absorption beds above the ten-year flood elevation. The Petitioners, in essence, propose to accomplish this by compliance with Rule 10D- 6.049, Florida Administrative Code, which contains specifications and requirements concerning installation of a base filled area surrounding a mound and requirements concerning placement of the septic tank and drain field within that mound. Given the requirements of that rule which limits the mound to a 36- inch height, but allows a base pad of fill of appropriate soils to be placed beneath the mound before its construction, it is obvious, given the 2.84 foot differential between the surface grade of the installation site and the ten-year flood elevation, that installation of such a mounded system would amount to a feasible alternative OSDS which will raise the drain field trench bottoms above the ten-year flood elevation. In conjunction with the six feet of appropriate soil above the wet season water table, this will assure that public health and ground or surface waters are not harmed or degraded by the installation and operation of such a system. Rule 10D-6.047 clearly envisions that installation of such fill, including a mound for such a system, can be accomplished where it references the "final lot elevation at the site of the proposed system installation . . .", as does Rule 10D-6.049, Florida Administrative Code, where it provides detailed specifications regarding construction of mounded systems and references them as "alternative systems." It should be pointed out, however, that although such a system has been established to be a reasonable alternative OSDS within the meaning of the subject rules at issue, Rule 10D-6.047 proceeds to require that the installation of such a mounded system on property which lies within the regulatory flood way requires a certification of an engineer, registered in the State of Florida, to the effect that the installation of the fill and mound will not serve to alter the "base flood". That engineering evidence and certification has not been adduced in the proof in this proceeding, even though the District, as well as the Department, has approved the installation of such a system on the Larry Gilbert lot, immediately adjacent to the Petitioners' lot, without requiring a "works of the District permit" from the District. The approval of such a similar system on the property with similar elevation immediately adjacent to the subject property might indicate that the Department has a policy of interpreting its rules to allow such mounded systems on property within the ten- year flood elevation, provided that such mounds raise the drain fields above the ten-year flood elevation. It has not been proven, however, that the fact that the District did not require a "works of the District permit" should be and has been interpreted in the past to be equivalent to the engineer's certification required by Rule 10D-6.047. Consequently, a grant of an OSDS permit for such an alternative system for these Petitioners should be conditioned on the provision of such engineering certification, calculations and data to the Department. The Petitioners' property is designated as Lot 24 of Highpoint Suwannee River Front Estates, a platted subdivision. The adjacent lot is Lot 23, owned by Larry Gilbert. The ground elevation of the Gilbert lot is approximately identical to the elevation of the Petitioners' lot. On or about July 14, 1988, Mr. Gilbert made an application to the Department for installation of an OSDS upon his property. The District, in that same month, issued a letter finding that the Gilbert lot was not subject to frequent flooding. The District also indicated in that letter that the installation of 42 inches of suitable soil on the lot would be sufficient for the installation of a mounded in-ground OSDS and that installation of such a system would not violate District rules regarding construction of obstructions in the regulatory flood way. Based upon that information, Mr. Gilbert was able to obtain a variance from the Department's variance board permitting him to install what is known as a "National Sanitation Foundation class I aerobic treatment system" on the property. After obtaining that variance, Mr. Gilbert requested an informal hearing before a Department Hearing Officer regarding the variance board's denial of his request to construct a conventional, but mounded, in-ground OSDS. Following that informal hearing, the Hearing Officer recommended that Mr. Gilbert be permitted to construct a traditional in-ground OSDS utilizing only 36 inches of fill. That informal order was adopted by HRS in a Final Order; and the 36-inch mounded system was constructed upon the Gilbert property, adjacent to the subject property and passed the Department's final inspection.
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 in this proceeding granting the Petitioner an OSDS permit authorizing construction of a mounded septic tank and drain-field system, in accordance with the requirements of Rules 10D-6.046, 10D- 6.047, 10D-6.049, Florida Administrative Code, and in accordance with the conditions discussed and found hereinabove. DONE and ENTERED this 7th day of March, 1991, in Tallahassee, 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 7th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-18. Adopted. Respondent's Proposed Findings of Fact 1-17. Adopted. 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 Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue Whether or not Petitioners' application for an on-site sewage disposal system (OSDS) permit should be granted.
Findings Of Fact Petitioners, Paula and David Caywood, are the owners of Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. The subject lot is situated within the ten year flood plain of the Suwannee River Basin. On August 13, 1990, Petitioners filed an application with Respondent to install an OSDS to service a two-bedroom home which they desired to place on the subject lot. As an attachment to their OSDS application, Petitioners introduced a copy of a survey of their lot which was prepared by Walton F. Poppell, a Florida registered land surveyor who holds registration number 2940. The ground elevation for the ten year flood plain for the subject area where Petitioners propose to install their OSDS is 68.0 ft. A review of the land survey presented by Petitioners indicate that the proposed OSDS would be at a ground elevation of 63.8 ft. and when completed would be placed at a ground level of 65.64 ft. or 2.36 ft. below the elevation of the ten year flood plain. Although the Petitioners lot is not subject to frequent flooding, since the surface grade is beneath the ten year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten year flood elevation. Petitioners have not applied for a variance to install their OSDS within the ten year flood plain of the Suwannee River Basin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioners application to install an OSDS to service a two-bedroom home on Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. COPIES FURNISHED: David and Paula Caywood 9320 Horizon Drive Springhill, Florida 34608 John L. Pearce, Esquire HRS District II Legal Office 2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
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 RECOMMENDED: That a Final Order be entered granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1999.
Findings Of Fact The Petitioner Kirchhoff owns property bounded by the St. Johns River, and by U.S. Highway 17 and 92 in Seminole County, Florida. A legal description of the property is set out on a plat of survey which was received in evidence as Petitioners Exhibit 3. The state has recently constructed a boat ramp in close proximity to the property. The Petitioner Glover proposed to Kirchhoff that the land be developed as a fish camp. Petitioners were successful in getting the land zoned in order to allow for construction of a fish camp. A one quarter acre plot within the land owned by Kirchhoff was designated by the Petitioners as the site for their proposed fish camp. Much of this one quarter acre is low and wet, and a landfill is essential to Petitioners' plans. Petitioners' landfill and construction plans are described in the original application which Petitioners submitted to the Respondent. The application, and attached drawings show an approximately 100' x 100' landfill. The location of the landfill is marked with a red pencil on the aerial photograph map which was received in evidence as Petitioners' Exhibit 1. The major portion of the landfill would be used for parking purposes, and a 30' x 60' building would be constructed 20' from the waterward edge of the fill. The fill would cover a portion of the flood plain of the St. Johns River and would average 4 to 6 feet in depth. The flood plain along the bank of the St. Johns River in the area of the Petitioners' proposed landfill is approximately 1800 feet wide. U. S. Highway 17 - 92 has cut off approximately 1400 feet of the flood plain from the river itself. The portion of the flood plain immediately adjacent to the river, which is bounded by the highway and the river, is dominated by phragmites reeds, willows and cypress. The uplands of the proposed project is limited to the filled roadbed of highway 17-92. The landfill would merge with the highway roadbed, and would primarily cover wetlands within the St. Johns River flood plain. Such wetlands as the Petitioners proposed to fill provide a habitat and breeding grounds for many varieties of fish, shrimp, and anthropods. During the early stages of their lives many varieties of fish including bluegills, bream, sunfish, bass, and catfish live in such an area in order to hide from larger creatures. The wetland vegetation provides an essential part of the food chain for aquatic wildlife in the St. Johns River. The marsh vegetation also provides filtration from upland runoff. Runoff from the highway is filtered to a great extent by the marsh vegetation before it is received in the St. Johns River. The filling of such a marsh area would have an adverse impact upon the quality of water in the St. Johns River because of loss of the filtering effect of marshland vegetation. Furthermore, the construction of a commercial fishing camp would add additional runoff. The filtration effect provided by the landfill itself could not compensate for the loss of filtration from the marshland vegetation. The project proposed by the Petitioners encompasses only one fourth acre of the St. Johns River flood plain. The loss in wildlife habitat, and in filtration provided by wetland vegetation from this single project may be negligible, and not subject to accurate measurement. It is clear, however, that the project would provide an adverse affect, albeit slight, and that any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
