The Issue Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.
Findings Of Fact The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2). The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard. She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms. Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house, A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances. DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED Barbara Dell McPherson, Esquire Department of HRS Post Office Box 5046 Clearwater, Florida 33518 William W. Gilkey, Esquire Richards Building 1253 Park Street Clearwater, Florida 33516 Mr. Alex Rutkowski 30 North Evergreen Clearwater, Florida
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an onsite sewage disposal system ("OSDS") permit, whether he is entitled to seek a variance from the permitting requirements in the statutory and regulatory provisions cited below, so as to authorize installation of an OSDS on his property near the Suwannee River, in the Town of Suwannee, in Dixie County, Florida. A related issue concerns whether the Petitioner is entitled to seek a variance in view of Executive Order 90-14 issued by Governor Martinez on January 1, 1990, which the Department maintains removes its discretion to consider variance requests for parties who hake been denied permits pursuant to Rule 10D-6.047(6), Florida Administrative Code. See Section 381.272, Florida Statutes, and Rules 10D-6.043-047, Florida Administrative Code.
Findings Of Fact The Petitioner, James F. Kazmierski, and his wife, purchased real property in the Town of Suwannee, Florida, in Dixie County, on December 29, 1988. The property is described as Suwannee River Park, Unit 2, Lot 19-1. The subject property is waterfront property located upon a saltwater canal. The property was purchased for a total price of $55,550.00. After the purchase of the property, the applicant invested an additional $30,000.00 in the construction of a sea wall and boathouse, making his total investment approximately $80,000.00. At the time the property was purchased by the applicant, other residential construction was proceeding in the Town of Suwannee and other septic tank and drain-field systems were being installed. Numerous other such systems were already installed and operating in the Town of Suwannee, Florida. In February of 1989, in preparation for construction upon the property, the Petitioner contacted the Dixie County Office of the Department regarding the procedures he would be required to follow in order to install an OSDS. An initial inspection was performed by a representative of the Department, and the Petitioner was informed that an OSDS could be installed on his property. Other than this initial inquiry and initial response from the Department, concerning his ability to secure a septic tank permit and installation of the OSDS on his property, the Petitioner did not submit a formal application for a permit at that time because he planned to construct a sea wall and boathouse on the waterfront-side of the property. Construction operations for this project would have necessitated the use of heavy equipment which could have destroyed or damaged an OSDS system if it were already installed. Due to delays in environmental permitting for that project, the sea wall and boathouse were not completed until February of 1990. After completion of those improvements along the canal front of his property, the applicant again contacted the Dixie County Office of the Department and was informed that he would be required to file an application in order to secure an OSDS permit. The applicant, accordingly, submitted the subject application to the Dixie County Office of the Department on February 20, 1990. After initial submission of that application, he was required to submit additional information in the form of a flood elevation information report from the District describing the ten-year flood elevation at the installation site, as well as securing an elevation survey by a registered land surveyor. This was done; and pursuant to stipulation entered into by the parties, posthearing, the District's ten-year flood elevation information report, as amended, reflects a ten-year flood elevation of 15 feet above MSL. The elevation survey of the property established that the actual surface elevation of the property is 4.68 feet. After submission of the flood elevation report and elevation survey, the Dixie County Office of the Department issued a letter of denial of the permit application because the permit application did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, in that the installation site, in the view of the Department, lay beneath the ten-year flood elevation and the bottom surface of the drain fields and absorption beds proposed would lie beneath that elevation. After receipt of that denial letter, the Petitioner, joined by his wife, submitted a letter to the Dixie County Off ice of the Department requesting "a hearing for a variance to obtain a septic tank permit . .". The Petitioner believed that he could avail himself of the Department's informal variance board procedure. The Department, however, advised the Petitioner that he should pursue a formal administrative hearing before the Division of Administrative Hearings. The Department advised the Petitioner that an application for a variance from the requirements of Rule 10D- 6.047(6), Florida Administrative Code, would not likely be granted because the property, in the view of the Department, was located within the ten-year flood elevation of the Suwannee River and that, pursuant to the Governor's Executive Order 90- 14, that the Department could not entertain or grant any such variance applications or permits for installations which would lie beneath that elevation. The Petitioner purchased the property with the intent to use it for residential purposes and proposes installing the requested OSDS for a private residence. That residence would contain approximately three bedrooms and a heated or cooled area of approximately 2,000 square feet. The property presently has available water service through a central water system for the Town of Suwannee and does not require the installation of a potable water well. Consequently, the lot size requirements contained in the Department's rules related to the installation of an OSDS and to setback distances for such systems from potable water wells, are not applicable or at issue herein. The Petitioner's property has an actual elevation at the grade surface of the installation site of 4.68 feet above MSL. The soils characterizing the proposed installation site are organic type soils down to approximately 18 inches beneath the grade surface and then the soil becomes a sandy loam-type of soil for perhaps two inches and then organic-type soil from 20 inches down to 48 inches. There is evidence of "mottling", which indicates damp soil, at approximately 6 to 10 inches beneath the surface of the property. Mottling coloration in subsurface soil such as this indicates a wet season water table level where the mottling occurs because it is due to moisture. The water table at the time the evaluation of the site was performed, however, was 36 inches below the existing grade level. The Petitioner suggests that mounding an OSDS system for this property might be feasible because it would place the OSDS septic tank and drainfield system in a filled mound of at least 36 inches height above existing grade level. If this could be done, it might be feasible to elevate the bottom surface of the drain field so that the required minimum of 24 inches differential between the bottom surface 0f[ the drain field and the level of the wet season water table could be maintained. This would be environmentally preferable to installing a conventional subterranean septic tank and drain- field system beneath the natural surface 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, if appropriate slight or moderately limited soils were used in the construction of the mound which would contain the system. Thus, as the Department's witness acknowledged, a mounded system is a possible feasible alternative to accommodate the treatment of the sewage to be expected without causing an adverse impact on public health, the health of the users of the property, nor degradation of the ground or surface waters involved. Although a mounded system is a possible alternative, the Petitioner did not adduce sufficient evidence of technical information which-could 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. Although the technical details necessary to show that such a system would correctly operate on the property in question was not adduced into evidence, there is no dispute, however, that the gross lot size is adequate to accommodate such a mounded system. Thus, if appropriate slight or moderately limited soils were used in the construction of the mound and if it would otherwise conform to all the technical requirements of Chapter 10D-6, Florida Administrative Code, which was not shown, and 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. The Petitioner did not suggest, through his testimony or evidence, any other reasonable alternative to a conventional subterranean OSDS. In any event, 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 any other type of alternative 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, particularly, Rule 10D-6.047(6). That is, with either the conventional or mounded 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 District and submitted by the applicant with his application, as amended by posthearing stipulation, establishes a reported ten-year flood elevation of 15 feet above MSL. The Petitioner adduced the testimony of Williams Pierce, an engineer with the District, in their case in chief. His testimony in the Silcox case (DOAH Case No. 90-2660) was stipulated into the record in the instant Mr. Pierce testified that the elevation in the District report (now 15 feet) is 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 15-foot elevation comes from the U.S. Army Corp. of Engineers' 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 National Oceanic and Atmospheric 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 Petitioner established substantial doubt as to the accuracy of the 15-foot ten-year flood elevation. Mr. Pierce established that the ten-year flood elevation figure for the Suwannee River decreases as it is measured 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, the flood elevation at the Town of Suwannee, where the property in question lies, would be substantially lower. However, in the District's flood elevation data, the element of `1storm surge" is additively calculated in the ten-year flood elevation figure. This is designed to take into account surges caused by storms pushing water inland on the 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 tide actual ten- year river flood stage elevation level. The problem with the 15-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 15- foot, ten- year flood elevation at the location of the Petitioner's property near the mouth of the river. Moreover, he was unable to establish in his testimony how tee District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with the ten-year flood event for the Suwannee River or what that probability might be. Thus, the Petitioner's evidence casts substantial doubt that the 15-foot, ten-year flood elevation figure is accurate and comports with logic. Therefore, it can be found herein that the 15-foot, ten-year flood elevation figure has not been proven 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 it. Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drain field 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 the Petitioner, in effect, that it would be futile to apply for a variance and to avail himself 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 No. 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 the grant of any permits for OSDS installations be down in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department, thus, takes the position that the entry of the Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and. advised the Petitioner to avail himself of a 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 Petitioner will definitely experience a hardship if a permit or variance is not granted, because of the money expended to purchase and develop 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 adduced 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. A mounded system, with adequate proof, might be established as a reasonable alternative. 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 waters involved. Thus, to the extent the question of entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of the Petitioner for an OSDS permit. DONE AND ENTERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. 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 TO RECOMMENDED ORDER IN CASE NO. 90-3338 Petitioner's Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as irrelevant, since this is not a rule challenge proceeding pursuant to Section 120.56 Florida Statutes. 17-29. 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. 7-13. 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, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 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
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
The Issue Is Respondent responsible for alterations to a dam over which Petitioner has jurisdiction? Has Respondent performed these alterations without the benefit of a permit issued by Petitioner? Should Respondent be required to make changes to that structure?
Findings Of Fact One and one-half miles east of Crestview, Florida, which is in Okaloosa County, a dam has been constructed. The dam construction has formed an impoundment area thereby altering the course of a tributary to the Shoal River, an Outstanding Florida Water Body. Respondent contributed to the construction which formed the dam. He did so without benefit of a permit from Petitioner. No other person has obtained a permit from Petitioner for the dam construction. Respondent is a resident of Crestview, Florida. At present the impoundment of water created by the dam is more that 10 feet but less than 25 feet in height from the natural bed of the water course at the down stream tow of the barrier formed by the dam. The work which has been done on the dam by the Respondent is based upon his belief that he is entitled to an easement at the stream crossing. The dam impoundment has no agricultural purpose. John Rittenour claims ownership of the land at the stream crossing and takes issue with Respondent's belief that Respondent has an easement for that crossing. Mr. Rittenour did not authorize Respondent to do the work at the subject site nor was Mr. Rittenour responsible for performing work at the subject site independent of Respondent's activities. There is no dispute concerning Respondent's ownership of property in the vicinity of the stream crossing. Prior to March, 1990, Respondent had made certain changes at the subject site to maintain a vehicular crossing. The pre-March, 1990 changes were to a structure which used a culvert to allow the water in the stream to flow through the crossing. In addition Respondent was trying to create a water impoundment area behind that structure prior to March 1990. The nature of these activities was not such that the Petitioner had a basis for imposing the regulatory requirement that Respondent obtain a permit to conduct the alterations at the subject site. In March, 1990, the dam at the subject site breached. As a consequence, other structures down stream also failed. Those structures belonged to Mr. Rittenour. The breach created conditions unsafe to the public. In April, 1990, following the breach, Respondent reestablished the stream crossing. The work which he did created the present dam height which had been described. The stream crossing provides local residents with access to their homes. There is another route to those homes, but its future availability is in question. On July 30, 1993, Jerry Sheppard, Senior Field Representative for Petitioner, inspected the subject site. The findings that he made at that time are set forth in Petitioner's Exhibit No. 3. That Exhibit roughly describes the structure in question. In particular, it references the fact that the dam height is approximately 10.5 feet as observed through the form of measurement already described. The dam is 13 to 15 feet in depth. It's width is approximately 200 feet. It has horizontal culvert pipes to allow water flow through the dam. One pipe is 18 inches in circumference. The other pipe is 36 inches in circumference. The inspection which Mr. Sheppard made on July 30, 1993, revealed that the changes to the structure following the breach in March, 1990, had increased the water impoundment area as to the landward extent of that water. Mr. Sheppard was concerned with safety problems associated with the dam which he observed on July 30, 1993. He found the overall construction to be of poor quality. There were problems with vertical slopes on the dam faces, trees were observed to be on the slopes and the aggregate material used for construction was sandy in composition. All these conditions contributed to the substandard construction. Mr. Sheppard was also concerned about a change in the surface water volume that was created with the increase in the impoundment area. This could cause greater safety hazards in a future dam breach than had been occasioned by the March 1990 breach. The March experience released a lesser volume of water by comparison to the expected volume of water with a future breach. Lance Laird, P.E., had accompanied Mr. Sheppard on the inspection at the subject site that was conducted on July 30, 1993. Mr. Laird is an expert in agricultural engineering and design of small dams. Mr. Laird is employed by Petitioner and was in its employ in 1993. Mr. Laird's observations concerning the dam that were made on July 30, 1993 are memorialized in a document which Mr. Laird prepared on August 2, 1993. That document is Petitioner's Exhibit No. 5. Pertinent to this case, Mr. Laird notes that the method of establishing the dam height was done by shooting the dam centerline at 50 foot intervals and the elevation of the tow by examining the elevation of the normal ground at station 1+75. Specifically, the dam crest was found to be at a height of 10.48 feet to 11.04 feet. Therefore, it was established that the maximum impounding capacity would be at 11.04 feet of dam height. On September 7, 1993, Mr. Sheppard spoke with the Respondent. Respondent told Mr. Sheppard that the Respondent had an easement across the stream to allow access to property away from the stream. For that reason, Respondent told Mr. Sheppard that Respondent believed he could make alterations or repairs to the structure at the stream crossing that would be acceptable. Respondent also told Mr. Sheppard that the stream crossing structure was there before Respondent purchased property in the area and that Respondent had been responsible for making the repairs which are under consideration in this case. On this occasion Respondent told Mr. Sheppard that there were three or four mobile homes further down the lane from the stream crossing, in addition to one house site located in the area of the stream crossing. Respondent's Exhibit No. 4 is a memorandum concerning the telephone conversation which was conducted between Mr. Sheppard and the Respondent on September 7, 1993. As described in the August 2, 1993 memorandum which reflected the findings on July 30, 1993, the road crossing was over a dam found at the perennial stream which goes under the roadway formed by the dam. As Mr. Laird observed, the effect of the two culverts is to back the water up to within 3 feet of the dam crest. A plywood stop-log is placed over the entrance of the 36 inch pipe that serves as a principal spillway. There is a plywood plug for the inch pipe; however, it was not installed on July 30, 1993. On that date Messrs. Sheppard and Laird noted a washed out area that serves as the emergency spillway that was approximately 20 inches wide. When Mr. Laird made his inspection on July 30, 1993, he was of the opinion that the dam would not meet current engineering standards for construction of an earthen impoundment dam. In particular, he believed that the utilization of horizontal pipes and the history of failure of the structure were indications that the dam did not have the hydraulic capacity to meet the design storms that are anticipated for this area. The location of the 36 inch pipe was such that it was canterlevered out from the road fill by about 5 feet. The side slopes were from steep to vertical on the back slope. The upstream slopes were not found to be as steep. In the August 2, 1993 report Mr. Laird expressed the opinion that the facility/dam needed to be modified to meet hydrological/hydraulic requirements and other construction standards for dams used as access roads. Mr. Laird specifically noted that a further dam breach would have adverse affect on Mr. Rittenour's property, and ponds which were down stream and possibly cause the failure of structures that Mr. Rittenour had put in place, all leading to the possibility of the release of sediments into the Shoal River. On November 3, 1994, Mr. Laird returned to the subject site for further inspection. He rendered a report of that inspection on November 4, 1994. That report is found as Petitioner's Exhibit No. 7. In the course of the November 3, 1994 inspection Mr. Laird observed that the appearance of the dam was similar to that on July 30, 1993. The principal difference was that logs and debris were now present in the inlet and outlet ends of both of the culverts/pipes. Some of the logs were fairly large. One log was estimated to be 12 to 14 inches in diameter and 20 to 25 feet long. This log was at the outfall of the 36 inch pipe. The consequence of this debris in the areas of the two pipes was to restrict the hydraulic capacity of the system. This was made more significant because the horizontal pipes had inherent limitations on their hydraulic capacity. Under the circumstances it was imperative that the debris be removed. On this visit Mr. Laird also noted that the pipes were uncoated and rusting, thus limiting their life span. On this visit Mr. Laird noted that the emergency spillway had now become filled with sediments that had eroded from the road leading down the hillside to the dam site. Mr. Laird expressed a concern about the method of construction and the material used in that construction and the susceptibility of those fill materials to erode. In particular, Mr. Laird observed that the material was sandy and for that reason susceptible to erosion. Finally, Mr. Laird noted upon this visit that the sizing of the culverts had not been proven to be adequate when considering their intended function in the dam. On November 15, 1993, Messrs. Morgan, Laird, Sheppard and Mitchell May met with the Respondent and his attorney at the subject site. The outcome of that meeting is memorialized in the memorandum from Mr. Morgan dated November 16, 1993, a copy of which is Petitioner's Exhibit No. 2 admitted into evidence. In the November 15, 1993 meeting, Respondent and his attorney were told about the various concerns which the Petitioner had about this dam consistent with the prior observations made by Petitioner's staff as described in this recommended order. Discussions were held concerning the means of correcting the problems. At this time Respondent indicated that he had been informed, by someone who was not identified, that the alternate route for residents in the area to gain access to their homes was being closed and that the stream crossing would then form the only means of ingress and egress to those properties. Respondent explained that he had spent $3,000 in improving the dam. Further he made mention that he had originally sold 12.5 acres of property around the impoundment created by the dam and no longer had any interest in the property. Although no resolution was reached concerning the proper disposition of the problem created by the dam, Mr. Morgan noted in his November 16, 1993 memorandum that this safety hazard that had resulted from the impoundment of water at the dam site by virtue of the deficiencies in the dam construction must be corrected if the crossing was to be used as the sole access route into the residences which have been described. On November 19, 1993, Mr. Laird prepared a memorandum in response to the request by Respondent's counsel through correspondence dated November 8, 1993, concerning the method of establishing Petitioner's jurisdiction over the dam pursuant to the dam height. The November 19, 1993 memorandum coincides with prior observations about the method to be employed in establishing that jurisdiction which are set forth in this recommended order. A copy of the memorandum is Petitioner's Exhibit No. 6. Petitioner's Exhibit No. 6 has a rough sketch and other calculations in support of the determination of the dam height. Concerning Mr. Laird's testimony at hearing, he reiterated that the establishment of the dam height was through a measurement of the down stream site in which the elevation difference between the impounded water and down stream elevation at the stream bed were critical factors in determining the potential hazard should there be a further breach of the dam. As established by Mr. Laird, proper methods of dam construction must be carried out in accordance with accepted engineering practices. In trying to determine acceptable engineering practices Mr. Laird relies on his experience as a professional engineer and expert in the design of small dams together a number of publications, to include publications from the Soil Conservation Services on design of dams, the U.S. Corps of Engineers and the Bureau of Land Reclamation. As Mr. Laird described at hearing, the dam design is deficient in that it is not made of suitable materials. Those materials are sandy. This allows water to migrate through the dam and to saturate the dam, thereby making the dam more prone to failure. The slopes on the back side of the dame are so steep that they cannot be maintained. The dam is eroding and two gullies have formed extending up to the crest of the dam. There is a third pipe in the dam face which is 18 inches in diameter and it is rusting. This pipe was there before the dam breach in March, 1990. It was left in place when repairs were made following that breach. Its existence could increase the flow of water in the event of a failure of the dam or if this third pipe collapsed it could form a void in the dam face. The principal spillway for the present dam is created by the use of the newer pipes that were placed horizontally. The placement of those two pipes creates limited capacity for flow-through and their rusty condition creates limitations on the effective life of those pipes. Those pipes could not be relied upon to handle storm events. In anticipation of a storm event, the pipes are placed so high on the dam face that they could not be used to evacuate water to meet the contingency of an upcoming storm or flood event. This arrangement unlike a head gate or control device below the water surface, which would allow the evacuation of water to meet the upcoming contingency of a storm or flood event, is without utility. The placement of the present pipes at the dam site is so high that they cannot be relied upon to dewater in anticipation of such a contingency. As has been verified by observations of these pipes, horizontal pipes are prone to be clogged by debris. An appropriate spillway would have a means of protecting the spillway against clogging. The emergency spillway is inadequate in that it continues to be filled in from erosion of the hill above the emergency spillway. On the dam surface, trees, weeds and other debris make it difficult for someone to perform an inspection of the dam condition, which is a necessary activity. Those same materials can penetrate the dam surface and cause erosion or in some instances if a tree were to fall and break the surface of the dam could cause further erosion. In summary, the dam does not meet generally accepted engineering standards for design nor comply with the requirements of safety for small dams as established by the opinion of Mr. Laird. The dam poses a safety hazard to people using the dam to cross the stream and for the down stream landowners should the dam breach as it did in March 1990. Mr. Rittenour would not be opposed to having a stream crossing at the subject site to allow access to nearby properties. He is opposed to a dam at the site with its associated impoundment. Under the circumstances the appropriate means of addressing the problem of the dam would be to remove the dam and its associated impoundment of water and replace that structure with a crossing which would allow vehicular traffic. This disposition is consistent with the order for corrective action. This would involve the safe removal of water behind the present dam structure and reduce the risk of sudden release of an increased volume of water from a future breach when contrasted to the 1990 breach. In this solution the spillway pipes would be lowered to an elevation at the natural level of the stream, thus the impoundment would be ended with the new structure which would allow vehicular traffic to cross the stream. A one to two foot fill would need to be placed over the pipes to maintain the crossing as a roadway. This would lower the crest of the structure to an elevation just above the stream bed. During the course of any construction, sediment barriers would need to be placed downstream and in areas where the construction was ongoing to prevent problems with sedimentation. Grass would need to be placed on any disturbed areas and on the slopes of the new structure. Alternatively, the entire structure could be removed with proper controls being placed to protect against sedimentation and erosion in the area in question. Maintenance of the structure as a dam with its associated impoundment is not contemplated by this administrative action and would only be appropriate in the event that the dispute over the ownership of this site is resolved by informal settlement between Respondent and Mr. Rittenour or through litigation.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which declares the dam and impoundment to be a public nuisance created by Respondent and informs the Respondent of the necessity to obtain a permit before removing the dam and impoundment and reestablishing the roadway at stream bed level. DONE and ENTERED this 12th day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 12th day of December, 1994. APPENDIX Petitioner's proposed facts are subordinate to the facts found in the recommended order. COPIES FURNISHED: Gary J. Anton, Esquire Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, FL 32302 H. S. Harrell 3153 Alpin Road Crestview, FL 32536 Douglas Barr, Executive Director Northwest Water Management District Route One, Box 3100 Havana, FL 32333
The Issue The issue is whether Respondent should take corrective action by opening and removing a drain gate and dewatering an impoundment known as Lake Susan in Okaloosa County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: a. Background On an undisclosed date, but at least several decades ago, a series of recreational earth dams and impoundments were built by a Mr. Kennedy, who developed an area now known as the Kennedy Lake Subdivision (Subdivision), which lies around five miles northwest of downtown Crestview. The small lakes created by the dams are known as the Kennedy Lake Chain, one of which is Lake Susan, which lies on Respondent's property. At least three or four of the upper lakes drain into Lake Susan through a series of large outflow pipes, which have been authorized by the District. The level of Lake Susan is regulated by a drain gate. The drain gate allows water to flow from Lake Susan through an approximate 100-foot drain pipe underlying a dam and roadway into another lake and wetlands area. The evidence shows that the dam which impounds Lake Susan is more than ten feet but less than twenty-five feet in height. See Petitioner's Exhibit 33. Thus, any work or alterations to the dam and impoundment are subject to the District's jurisdiction. See Fla. Admin. Code R. 40A-4.041(1)(a). According to Mr. Marcotte, the original drain pipe, or barrel, under the roadway was first installed by the County around 1939. The dam and impoundment were apparently built many years later when the Subdivision was developed. Because the evidence shows that barrels generally have a life of twenty years or so at most, it is likely that the pipe has been replaced at least one time since 1939, most likely when the dam was built. A small portion of the drain pipe under the dam (around thirty feet in length) is situated on Respondent's property while the remainder is located on County right-of- way. The parties agree that Respondent has the responsibility for maintaining the impoundment. (Documents submitted into evidence also suggest that the Lake Susan Homeowner's Association (Association), of whom Respondent is apparently a member, assumed this responsibility at one time.) Finally, at least a part of the dam which impounds the water is located on Respondent's property. A two-lane paved road known as Old Bethel Road runs over the crest of the dam and serves as an important connector road between State Highway 85 and U.S. Highway 90 just west of Crestview. On either February 22, 1973 or 1978, Associated Developers of Florida, Inc., whose relationship to Mr. Kennedy, if any, is unknown, quit-claimed its interest in the road to the County. See Respondent's Exhibit 3. (Because the copy of the deed provided by Respondent is partially illegible, there is some confusion over the exact date.) Since that time, the County has owned and maintained Old Bethel Road. Despite the quit claim deed, for several years after this dispute first arose in 1999 or 2000, the County denied responsibility for maintaining anything except the actual roadway above the dam. Thus, it denied responsibility for repairing the 70-foot portion of the drain pipe which lies on its right-of-way. At the hearing, however, a County representative acknowledged that it has the responsibility to maintain and repair that portion of the drain pipe which runs underneath the dam and lies in the County right-of-way. In 1996, Respondent, who is an engineer and professional helicopter pilot, purchased a residence on Lake Susan located at 1033 Tallokas Road (Section 1, Township 3 North, Range 24 West), Crestview. Tallokas Road is a local road which runs in a northeastern direction from Old Bethel Road (starting approximately 1.1 miles north of U.S. Highway 90) into the Subdivision. Lake Susan lies just north of the intersection of, and between, Tallokas Road and Old Bethel Road; Respondent's property faces Lake Susan to the southwest. In 1998, the Association performed certain repair work on the dam (apparently without authorization from the District), but Hurricane Georges struck the Florida Panhandle later that year causing at least three of the dams in the Kennedy Lake Chain to fail. When the upper dams failed, trees from those impoundments were swept into the deepest part of Lake Susan "knocking [the] standpipe off of its base." Except for a "rusted pipe," however, the dam did not otherwise fail. On August 5, 1999, Respondent (on behalf of himself and the Association), through his engineer, Mr. Dunn, filed an application with the District to perform certain repairs and alterations on the dam caused by Hurricane Georges. In the application, Mr. Dunn recited that Respondent would be responsible for all maintenance of the dam and associated appurtenances. On December 1, 1999, the District issued Surface Water Management Permit No. 4-99-021 (Permit) to the "Lake Susan Homeowners Association c/o Francis Marcotte" for the "Repair of Non-Agricultural Impoundment." The Permit provided that all construction should be completed by November 30, 2002. Under District protocol, once the construction work is successfully completed and approved, the District issues an Operation and Maintenance letter (O & M letter), which allows the permittee to impound water. Until an O & M letter is issued, however, a permittee cannot legally impound water. The District is authorized by rule to "to impose on any permit granted . . . such reasonable conditions as are necessary to assure that the permitted [activity] will be consistent with the overall objective of the District." Fla. Admin. Code R. 40A-4.041(3). Pursuant to this authority, the District imposed eighteen conditions in the Permit, two of which are described below. First, Condition No. 11 of the Permit required that the old spillway system in the dam be excavated and replaced unless the old piping system was determined to be serviceable. It also required that "[i]f the old piping system is determined to be serviceable, the District shall be notified by the project engineer." The District interprets this provision to mean that after the work authorized under the Permit has been completed, the project engineer (Mr. Dunn) must provide the District with a statement as to whether or not the entire piping system under the dam is serviceable. Mr. Dunn, however, construed the provision as only requiring him to certify that portion of the pipe which he found to be serviceable; no other statement was required. The District's interpretation is reasonable and is hereby accepted. Next, Condition No. 15 states that the authorized facility will not be considered complete until an As-Built Certification and Completion Report is filed by the project engineer, and the District determines that the project is in accordance with the approved design and any permit conditions stipulated in the construction authorization. The District interprets this provision to mean that unless all portions of the drain pipe which are not serviceable are replaced, including that portion which lies within the County right-of- way, the project will not be considered complete and no impoundment of waters will be allowed. This construction of the provision is a reasonable one and has been accepted. (The District has not involved itself in the dispute between Respondent and the County over who has the responsibility for replacing that portion of the pipe which lies in the County's right-of-way.) As required by Condition No. 5, on June 28, 2000, a pre-construction meeting was held. The meeting was attended by a County engineer, Respondent's wife, Mr. Dunn, the project contractor (B & H Moving Contractors, Inc.), and District personnel, including Mr. Laird, a District engineer. The discussions that occurred at the meeting are memorialized in a memorandum drafted by Mr. Dunn. See Petitioner's Exhibit 7. During preliminary excavation work performed by B & H Moving Contractors, Inc., it uncovered that portion of the outlet (drain) pipe lying on Respondent's property and found "two holes . . . in the second joint from the old riser" caused by corrosion. Based on this observation, which was disclosed at the pre-construction meeting, Mr. Dunn noted in his memorandum that the "entire pipe may have problems that could result in undermining Old Bethel Road." At the meeting, however, the County declined to agree that it would repair that portion of the pipe on its right-of-way until it could be established "that the pipe under the road was the responsibility of the County." On September 20, 2000, Mr. Laird received a telephone call from Respondent who said that the County had refused to replace the pipe and the parties were at an impasse. Respondent also told Mr. Laird that until the pipe was replaced, he would not shut the gate. Mr. Laird advised Respondent not to allow Lake Susan "to stage up" until the pipe was replaced. A summary of the telephone conversation is found in Petitioner's Exhibit 10, which was prepared by Mr. Laird immediately after the call. On September 26, 2000, Mr. Dunn advised Respondent by letter that B and H Moving Contractors, Inc. had completed the work on the dam in accordance with the plans and specifications. This included replacement of the drain pipe which lay on Respondent's property. The letter confirmed Mr. Dunn's understanding that Respondent had agreed to "not close the gate until Okaloosa County completes the replacement of their pipe under Old Bethel Road." See Petitioner's Exhibit 11. Over the following months, Respondent engaged in negotiations with the County in an effort to get the County to assume responsibility for its pipe. On August 17, 2000, the County advised Respondent that it would not replace the pipe. However, its engineer agreed to recommend to the Board of County Commissioners that the County would "cover the material cost of the pipe and the installation of the base and paving of the roadway." The actual work, however, would be performed by Respondent "[s]ince Lake Susan is a private lake and the pipe is part of the control structure for the lake." See Petitioner's Exhibit 12. Respondent was understandably reluctant to perform any work on County property since that would expose him to liability if a subsequent unforeseen event should occur. Although the work was probably completed much earlier, Mr. Dunn filed an "As-Built Certification and Completion Report by Project Engineer (Report) on April 1, 2002, as required by Condition No. 15. See Petitioner's Exhibit 13. That Report indicated as follows: The project was constructed in substantial conformance with the plans and specifications prepared by me. All hydraulic, structural, and environmental considerations appear to have been adequately addressed. The County still has not replaced their pipe under Old Bethel Road. The permittee has completed all work permitted to be done by him and, in my opinion, the project is completed. As noted above, Condition No. 11 required that "[i]f the old piping system is serviceable, the District shall be notified by the project engineer." According to Mr. Dunn, he did not include a certification on the County's drain pipe because he "highly suspected" that the drain pipe lying within the County right-of-way was unserviceable and in the same condition as the pipe found on Respondent's property. Therefore, he limited his certification to the thirty feet of pipe that was replaced. After the Report was filed, a lengthy series of correspondence between the parties ensued. On April 5, 2002, Mr. Laird wrote Respondent acknowledging receipt of the project engineer's Report. He stated that he was not in agreement with Mr. Dunn's certification that the project was complete because the parties had previously concluded at the pre-construction meeting that the entire pipe was unserviceable. He advised Respondent that the "impoundment must be dewatered and maintained in a dewatered condition until such time as this issue is resolved." See Petitioner's Exhibit 14. As a consequence, an O & M letter was never issued by the District. On May 7, 2002, Respondent responded to Mr. Laird's letter and stated that he was "continuing . . . to lower the lake to that of the adjoining one." He also stated that because he had done everything required under his Permit, he hoped that the matter would be considered complete. See Petitioner's Exhibit 15. On May 15, 2002, Mr. Laird responded to the above letter and reiterated that given the questionable condition of the pipe (which lay on County right-of-way), pursuant to Condition 15 the repairs to the impoundment would not be considered complete and the impoundment of water would not be authorized until the entire pipe had been replaced. He requested that Respondent "maintain the water in the lake at a lower level until such time as this issue is resolved." Finally, he reminded Respondent that the District's position on the on-going dispute with the County was that it did not matter who replaced the pipe, so long as it was "replaced and done in a legal manner." See Petitioner's Exhibit 16. By letter dated August 9, 2002, a District regulatory administrator, Mr. Morgan, advised Respondent that District staff had observed that Lake Susan was once again impounding water and that he must notify the District within fourteen days that the impoundment has been dewatered, together with his plans for the replacement of the pipe under Old Bethel Road. See Petitioner's Exhibit 17. On August 26, 2002, Respondent answered the above letter and advised in part that the outlet valve had been stolen by vandals which caused the lake to fill up but that "the valve is now open and the water level is falling." He also asked that his current permit be extended until the County agreed to perform the work. See Petitioner's Exhibit 18. In response to this request, by letter dated September 3, 2002, the District extended the deadline for completion of the project until March 1, 2003. See Petitioner's Exhibit 19. On November 21, 2002, Mr. Morgan again advised Respondent by letter that the District staff had observed that Lake Susan remained "at or near normal pool." The letter went on to say that while the District recognized Respondent's "difficulties in resolving [the issue with the County]," he was not allowed to impound water until the matter was resolved. See Petitioner's Exhibit 20. On March 3, 2003, a District field representative, Jerry Sheppard, met with Respondent concerning the level of water in the impoundment. He memorialized the conversation in a memorandum prepared the same date. See Petitioner's Exhibit According to the memorandum, the pond was "full due to excessive rains," and even though the gate was open, it had only "partial flow through the outlet pipe but [was] not opened adequately to pass storm water accumulated in the upper pond." The memorandum further stated that Respondent had assured him that "he will open the gate an additional round or two to allow further dewatering to take place while he is away on his job for the next two weeks." At the end of the meeting, Mr. Sheppard "strongly urged that the pond remain dewatered." On March 12, 2003, Mr. Laird advised Respondent by letter that his Permit had expired on March 1, 2003. This meant that Respondent could not undertake any work on the facility without District approval and that he must maintain the facility in a dewatered condition. See Petitioner's Exhibit 22. On January 21, 2004, Mr. Morgan sent Respondent a letter advising that the District staff had observed "that Lake Susan was once again impounding water to within 1.5 inches of the designed water level." He added that "the facility must be completely dewatered, and maintained dewatered, until such time as the issue has been resolved." The letter warned that if Lake Susan was not dewatered, a formal enforcement action would be initiated. Finally, the letter requested that Respondent contact the District within fourteen days "noticing [the District] that the impoundment has been dewatered and [that Respondent] plan[ned] to replace the old pipe under Old Bethel Road, or [Respondent] will remove the head gate from the riser base." See Petitioner's Exhibit 23. On March 3, 2004, Respondent, Mr. Laird, and various County representatives met in Crestview in an effort to resolve the issue of who would replace the remaining portion of the drain pipe. The discussions at the meeting are recorded by Mr. Laird in a memorandum dated March 4, 2004. See Petitioner's Exhibit 24. The memorandum states in part that "all [participants] agreed that the pipe is not serviceable as a spillway pipe." At the meeting, the County refused to accept responsibility for fixing the drain pipe. Its Public Works Director (Director) also stated that even if a quit claim deed showed that the pipe was on their right-of- way, the County would not repair the pipe; instead, the Director asserted that the County would prevent Respondent from impounding water. Finally, contingent upon the Board of County Commissioners approving her recommendation, the Director agreed to purchase the seventy feet of pipe if Respondent would perform all excavation work and install the pipe at his own expense. See Petitioner's Exhibit 24. By letter dated March 5, 2004, the Director confirmed in writing her previous offer to Respondent that she would request authorization from the County to purchase seventy feet of pipe, reconstruct Old Bethel Road after the pipe was replaced, and close the road during the construction process. However, the Director expected Respondent to provide all other necessary material and work effort associated with the pipe replacement. See Petitioner's Exhibit 25. On March 8, 2005, Respondent agreed to accept the County's offer. See Petitioner's Exhibit 26. Presumably based on this understanding, on March 8, 2004, Mr. Morgan advised Respondent that he would "allow up to 90 days for [Respondent] to be able to make the necessary replacement." This was followed by a letter from Mr. Laird on April 12, 2004, requesting that Respondent provide a proposed work schedule so that the District could generate an order extending the time for the work to be completed. See Petitioner's Exhibit 27. On April 27, 2004, Respondent (who was off-shore in the Gulf of Mexico on flight duty) sent a "rapid memo" to Mr. Laird advising that he had just received a verbal bid offer and would forward a work schedule as soon as a formal contract was signed. See Petitioner's Exhibit 29. He also sent Mr. Laird a memorandum on this subject on May 13, 2004, but that document was not made a part of this record. By letter dated May 19, 2005, Mr. Laird answered Respondent's two memoranda and indicated that two technical issues needed to be resolved. He also enclosed for Respondent's review a copy of a draft permit which authorized the work to be performed. See Petitioner's Exhibit 30. Sometime during this time period, and perhaps after he received the bid, Respondent decided that he would not assume the responsibility (and liability) for working on County property and offered instead to pay the County for one- half of the project's cost (which totaled around $25,000.00) so long as the County would do the work. Apparently, the County refused this offer, and the project was never undertaken. On August 12, 2004, a District administrator (Norman Velazquez) advised Respondent's counsel by letter and facsimile that District staff had inspected Lake Susan that morning and observed that "the impoundment was operating at full capacity contrary to previous District communications ordering the dewatering of it." The letter noted that the matter had been discussed by telephone the same day and that counsel had agreed that the information in the letter would be shared with Respondent in a timely manner. See Petitioner's Exhibit 31. By letter dated September 13, 2004, Mr. Velezquez again advised Respondent's counsel that a follow-up inspection that day revealed that "the impoundment was operating at full capacity." The letter also stated that Respondent "is required to dewater the unauthorized impoundment of water by Monday, September 21, 2004." Finally, Respondent was warned that if he did not dewater Lake Susan, it would "leave [the District] no choice but to issue an Administrative Complaint Order against Mr. Marcotte." See Petitioner's Exhibit 32. On February 1, 2005, the District issued its Administrative Complaint. Between April 2003 and December 2004, a District field representative (Mr. Sheppard) visited the site on a number of occasions. On each occasion, he observed that the impoundment was full and that dewatering had not occurred. In July 2005, the County reversed its position and agreed that it had the responsibility to replace the pipe if it was not serviceable. The County also agreed to hire a vendor who would place a special video camera in the pipe to detect any holes, rust, or other deterioration. The County further agreed that if defects were found, it would replace the pipe at its own expense. This was confirmed at hearing by the County's Risk Management Director. On August 25, 2005, the County advised Respondent by letter that the inspection had taken place, that the County was working on a solution and probably intended to "insert a sleeve inside the existing pipe" to correct the problem, and that the project had been assigned to the Public Works Director with "a high priority." The current status of the project is unknown. Although Respondent argues in his Proposed Recommended Order that the District has never established that the County's portion of the drain pipe is unserviceable, the greater weight of evidence shows the opposite to be true. Indeed, all of the experts who testified at hearing agreed that the drain pipe should be replaced due to its age and the defects observed when the dam was excavated and a portion of the pipe exposed for inspection in 2000. In addition, a part of the earthen dam is saturated with moisture, and voids have developed in the interior of the structure. Collectively, these conditions have led the District to properly conclude that the impoundment of the water constitutes a danger to the public since Old Bethel Road might collapse at any time. Because of this, no impoundment of waters should occur until the pipe is replaced.
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
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 the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th 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 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. 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 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
Findings Of Fact Charlotte Highlands is an approximately 97-acre mobile home subdivision in Charlotte County, Florida. The roads in the subdivision are unpaved. The stormwater sheet flow in the area is from west to east. To the east of Charlotte Highlands is a 21-acre hardwood swamp, the wetlands in question in this proceeding. Stormwater from the 97-acre subdivision west of the wetlands and from the 250 acres west of the subdivision flows to the east into the wetlands. Water flows out of the wetlands to the east, from the 21-acre wetlands through a stream into Myrtle Slough. Myrtle Slough is part of the waters of the State. The County wishes to create a stormwater drainage system for Charlotte Highlands. Under the County's plan, stormwater from the 97-acre subdivision would be discharged into the wetlands owned by Desrosiers Brothers. Although the County and the Department view this project as involving only the discharge of stormwater from the 97-acre subdivision into the wetlands, the stormwater discharged would include the stormwater flowing into the 97-acre subdivision from the 250 acres located directly west of the subdivision. The County met with individuals from the Southwest Florida Water Management District, and that agency questioned the method of calculations used by the County in determining the amount of runoff into the proposed drainage system. Although new calculations of stormwater runoff volume were performed by the County, those new calculations were not provided to the Department in the County's permit application. The wetlands in question contain cypress, maples, laurel oak, bay trees, percia, dahoon holly, buttonbush, ferns, palmetto, and wet pine. Some of these species, especially the maples, cannot withstand much flooding. The outflow from the wetland into Myrtle Slough is via a natural stream. Although there are some indications that some excavation may have taken place in the stream, such as the spoil located near the cattle watering pond near the mouth of the wetlands, water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections. The hydroperiod is the length of time water stays in a wetlands before it drains out of the wetlands. This determines the water level, the critical factor affecting a wetland's ability to perform its vital functions. If the rate or volume of either the inflow or outflow of a wetlands is altered enough, the water level changes, usually with adverse environmental consequences. Certain species of flora will die off if the water level rises too much. Others require high water levels for their survival. In order to assess the effects of a proposed alteration to such a system, one must determine the existing high pool and low pool. Donald H. Ross established the high and low pools for the County. He went to the wetlands and observed the stain, rack, and lichen lines on tree trunks. He also observed the cypress buttress. Ross also determined the invert of the stream, the elevation at which water first starts to run in it. Based solely on this site visit, the County determined the high pool in the wetlands to be at 14.8 NGVD and the low pool to be at 14.1 NGVD. No rainfall data was collected and analyzed; no hydrological studies were performed; no observations were made over a period of time. There are two aspects of this project which can alter the hydroperiod of the wetlands. The first involves the amount of water entering the wetlands, and the second involves the amount of water leaving the wetlands. Currently, runoff from the 97-acre subdivision as well as the 250-acre area west of the subdivision drains toward the wetlands. The County intends to pave the roads in the subdivision and construct a system of swales. Although the paving will increase the impervious surface by an insignificant amount, the runoff will be delivered to the wetlands faster. Accordingly, peaks in water level will occur more suddenly with increased water arriving more quickly. Stormwatr is discharged into wetlands to take advantage of the pollutant-filtering functions of wetlands vegetation. To realize this function, the water must be held in the wetlands for a certain amount of time. The County intends to accomplish this by the installation of a control structure, known as a weir, which will regulate the amount of water leaving the wetlands. The County proposes to construct a weir on the stream between the wetlands and Myrtle Slough approximately 100 feet from the mouth of the wetlands. The top of the weir for this system will be set at 14.8 NGVD, the high pool established by Ross for the County. The weir will also have an orifice set at 14.1 NGVD, the low pool established by Ross and the County, which will allow a constant flow of water out of the wetlands at that elevation. The control structure will cause water to remain in the wetlands for a longer period of time, which will raise the water level in the wetlands by some amount. In order to accurately predict this amount, it is necessary to determine the storage capacity of the wetlands. The County calculated that a storage capacity of 177,761 cubic feet would be required for the wetlands to contain the first one-half inch of rainfall from the 97-acre subdivision. No calculations have been made as to the storage capacity required for the wetlands to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands. The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of the wetlands, the impact of its project on the wetlands cannot be determined. As an alternative to this project the County considered rerouting the stormwater away from the wetlands. Diverting necessary water from the wetlands would result in the desiccation of the wetlands. However, an increased water flow if not properly discharged would likely result in an over impoundment of the wetlands. Either approach would have an adverse impact on a productive wetland system, such as the wetlands involved here, and a change in the vegetation would adversely impact the wetland's ability to treat the discharge. The treatment of stormwater in wetlands is a relatively new technique. Although some projects have been approved in other parts of the State, projects such as that proposed by the County have not been used yet in southwest Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Charlotte County's application for a wetlands stormwater discharge facility permit. DONE and RECOMMENDED this 8th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0243 Although Charlotte County filed a document called Proposed Findings of Fact and Conclusions on the Evidence, rather than setting forth any findings of fact the County simply makes what it calls a Comparison of Evidence on Issue 1 and a Comparison of Evidence on Issue 2, listing under each heading excerpts from the testimony of each of the witnesses in this proceeding. Accordingly, no rulings are made herein on Charlotte County's proposed findings of fact since it is determined that there are none. Desrosiers Brothers' proposed findings of fact numbered 1-9, 15, 17, 24, 26, 27, and 38 have been adopted either verbatim or in substance in this Recommended Order. Desrosiers Brothers' proposed findings of fact numbered 10-12, 19-21, 23, 25, 29-37, 40, and 41 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. Desrosiers Brothers' proposed findings of fact numbered 13, 14, 16, 18, 22, 28, and 39 have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 1, 2, 14 in part, 15, 16 in part, 17 in part, 18-22, 27, and 28 in part have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 5 and 6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. The Department's proposed findings of fact numbered 16 in part, and 17 in part have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 3, 4, and 7-13 have been rejected as being contrary to the weight of the evidence in this cause. The Department's proposed findings of fact numbered 14 in part, 23-26, and 28 in part have been rejected as not being supported by the evidence in this cause. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Philip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950 Matthew G. Minter, Esquire 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue Who are the owners of the two dams in question? Are there structural deficiencies in the two dams that render them unsafe, and what repairs and improvements should be required? What are the steps and methods by which the deficiencies should be corrected, and who should make the corrections? Is the breaching of the two dams, as urged by the Northwest Florida Water Management District, an appropriate remedy?
Findings Of Fact The Complainant, Northwest Florida Water Management District (hereinafter "District"), is a public agency authorized by and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40A, Florida Administrative Code, with it headquarters located in Gadsden County, Florida. In approximately 1962, two earthen dams were constructed in what is known as the Dogwood Lakes Subdivision located in Holmes County, Florida (Petitioner's Exhibit 11 at p. 5; Esry, T at 230). An inspection in 1983 revealed that there were serious deficiencies in the maintenance of these dams and their appurtenances. The District has undertaken various title searches prior to the hearing to determine ownership of the two dams; however, ownership of the dams could not be determined due to conflicting claims. The District noticed all those persons who had an ownership interest or potential interest in the dams. The District also notified Holmes County and the Dogwood Lakes Homeowners Association (Recio, T 61-62). Respondent, The Dogwood Lakes Homeowner's Association, is a voluntary association of property owners in the Dogwood Lakes subdivision. The Association does not claim title ownership to either of the dams or the lakes; however, the Association claims a beneficial interest in the impoundments, which its members use for recreational purposes, and an interest in maintaining the lakes, which substantially enhance the value of the property within the Dogwood Lakes subdivision, particularly the property surrounding the two lakes. The dams, lakes, and property surrounding the lakes are within Holmes County, Florida (hereinafter "County"), which was noticed and made a Respondent in this case. Holmes County has expressed concern that removal of the dam could result in lower tax assessments for the properties surrounding the lakes (see, e.g., County's response to Amended Administrative Complaint). The road running along the top of the dam, Sherwood Drive, has not been dedicated to or accepted by the County for maintenance. The County does not have an ownership interest in the dam. Deeds received in evidence as Petitioner's Exhibits 1 and 2 reveal that Respondent, Ben Campen, may own the bottom of all existing lakes, and easements for roadways, water lines, utilities and other ingress and egress to the golf courses, lakes, ponds and waterways (Petitioner's Exhibits 1 and 2). Petitioner's Composite Exhibit 3 reveals that Respondent, John Maitland, owns a significant portion of the undeveloped lands, including the northerly right-of-way line of Sherwood Drive and Parcel 10, which includes much of dam number 1. The evidence further shows that Respondent, Maitland, owns Parcel 17, which includes the westerly edge of dam number 2 (Petitioner's Exhibit 3). Respondent, O'Sullivan, admitted in Answers to Interrogatories that he owns the two lake bottoms at Dogwood Lakes (Petitioner's Exhibit 4, answer to interrogatory numbers 2 and 12). Respondents, Ben Campen, Jack Maitland, and Kevin O'Sullivan, have ownership claims to all or portions of the two dams. While the County and the Association have interests sufficient to permit them to be heard in this matter, they do not have any ownership interests. No other persons have asserted claims of ownership of the dams (Recio T, 65-66 and 68). The two dams, designated dam number 1 and dam number 2, were designed in 1960 and 1961 by the Soil and Conservation Services as low-risk facilities for agricultural purposes which assumes no downstream hazards and only agricultural runoff from the watershed (Musgrove, T at 93 and 95; Esry, T at 229-230; Petitioner's Exhibit 10). Agricultural runoff coefficients were used in designing the dams based upon the agricultural use of the surrounding property (Esry T at 220 & 238-39), and the dams were built prior to significant development around the lakes or below the dams. Dam number 1, the larger of the two dams, is constructed of earthen materials and is 800 feet long, 29.5 feet high, 21 feet wide at the crest, and 190 feet wide at the base (Musgrove, T 96-97). Dam number 1 impounds a 49-acre lake (Petitioner's Exhibit 11 at page 14), which lake contains 372 acre feet of water impounded at the normal lake level and 468 acre feet at flood storage capacity (Musgrove, T at 116). The principal spillway for dam number 1 consisted of an 18-inch corrugated metal pipe (CMP) riser with a 15-inch CMP barrel running through the base of the dam which discharged at the back slope (Musgrove T 97; Petitioner's Exhibit 11 at p. 16). The initial design of the principal spillway called for asphalt-coated pipe to be used, but little or no coating was used on the pipe (Petitioner's Exhibit 11 at p. 16). The emergency spillway for dam number 1 is a natural outlet designed to provide flow over a 10 0-foot wide area along the northeastern side of impoundment for dam number 1 (Petitioner's Exhibit 11 at p. 20; Musgrove, T at 98). Sherwood Drive, the major access road through the Dogwood Lakes subdivision, runs the entire length of dam number 1 (Musgrove, T at 99). Local traffic, including school buses, use this road. The smaller of the two dams, dam number 2, is 700 feet long, 21.5 feet high, 14 feet wide at the crest, and 150 feet wide at the base (Musgrove, T at 97). Dam number 2 impounds an 18-acre lake (Petitioner's Exhibit 11 at p. 23) which contains 82 acre feet of water at the normal pool level and 109 acre feet of water at the flood storage level (Musgrove, T at 116). The principal spillway for dam number 2 consists of an 18-inch CMP riser and a 12-inch CMP barrel. Dam number 2 does not have an emergency spillway but discharges excess water through a canal, which connects lake number 2 with lake number 1, and out its emergency spillway (Musgrove, T at 98; Petitioner's Exhibit 11 at p. 26). The principal spillway components for both dams (riser and discharge barrel) had a design-useful life of 20 to 25 years (Esry T at 230). Over the years, neither dam nor its control mechanisms have been maintained properly. Both dams have trees and other woody vegetation growing on the front and back slopes of the dams (Esry T at 237, 241, and 244; Musgrove T at 125 and 133) The development of the Dogwood Lakes subdivision, including construction of houses, streets, and a golf course around the subject lakes, changed the nature of the land use from agricultural to residential (Musgrove T at 25 and 98). There are three permanent residences located below and within the flood plain of dam number 1 (Musgrove T at 114, Petitioner's Exhibit 13; Carolyn Whitehurst, T at 254-255; Melvin Rhodes T 261-263). Melvin Rhodes lives approximately 800 feet downstream of dam number 1 and resides there on a permanent basis with his family, including his two young children, ages 2 and 4 (Rhodes, T at 261-262). In approximately September of 1982, the principal spillway for dam number 1 failed causing an uncontrolled release of water. Respondent, O'Sullivan, attempted to repair the spillway mechanism but in the process, irreparably damaged the principal spillway (Musgrove, T at 120). The discharge barrel in dam number 1 was plugged to prevent a continued, uncontrolled release of water (Musgrove, T at 105-106). Plugging the discharge barrel caused the couplings of the corrugated pipe to blow out, creating multiple leaks deep in the dam (Musgrove, T at 107-109). The principal spillway for dam number 1 is no longer operational as a result of failures and unpermitted attempts to repair the spillway in 1982 (Musgrove T at 105-106). Respondent, O'Sullivan, subsequently attempted unpermitted repairs to the principal spillway by excavating down to and crushing the discharge barrel, removing the riser pipe and refilling the entire area with earth materials covered with a layer of bentonite, a low permeability clay or water sealant, to prevent any further flow through the discharge barrel (Musgrove, T 122-123). The blowout in the principal spillway for dam number 1 further caused the out fall of the discharge barrel to fall 5 feet from its originally designed and constructed height (invert elevation) (Musgrove T at 122). The blowout of the discharge barrel has resulted in erosion on the back slope, water seepage through the dam, and infiltration of the earthen embankment materials through the discharge barrel (Musgrove, T 126-128). The emergency spillway for dam number 1 has not been maintained and has trees and other growth which restricts the flow of water (Petitioner's Exhibit 11 at p. 20). The principal spillway for dam number 2 is also inoperable because it is plugged with debris and material, including concrete (Musgrove, T at 138). Water seepage through dam number 2 has also been noted in its back slope (Musgrove, T 138-139). In March, 1983, the District was called out to the Dogwood Lakes subdivision because of extremely high water within the two lakes which has inundated yards and caused septic tanks to back up (Musgrove, T 104-106). The high-water levels had been caused by the plugging and damage to the two principal spillways of both dams (Musgrove T 104-105). Attempts by the District to have Respondent, O'Sullivan, submit a permit application to make the necessary repairs was unsuccessful (Petitioner's Exhibit 11 at p. 11-12). The District made emergency repairs to dam number 2 during the period of May 4 through 25, 1983, by installing eight-inch siphons to draw down the water levels (Petitioner's Exhibit 11 at p. 12-13). In June and July, 1983, the District made emergency repairs to dam number 1 by installing 2 eight-inch PVC pipes through the dam, across and under Sherwood Drive, to provide a temporary spillway to control the lake level (Petitioner's Exhibit 11 at page 13). On October 10, 1983, District officials again met with directors of the Association in Marianna, Florida, to discuss the situation involving the dams and to make recommendations to the Association on how to repair the dams (Recio, T 64-66; Petitioner's Exhibit 7). On August 8, 1984, officials of the District again met at the Dogwood Lakes clubhouse with directors of the Association to discuss the continuing problems of the lakes and dams and to arrive at some solution thereto (Petitioner's Exhibit 11 at p. 13; Petitioner's Exhibit 6; Recio T 63-64). While no permanent solution was reached at the August 1984 meeting, the Association's directors agreed that a control breach in dam number 2 was necessary as a temporary measure to relieve flood pressure on the dam. The control breach was constructed in September of 1984 (Recio, T at 60; Petitioner's Exhibit 11 at p. 13-14; Petitioner's Exhibit 6; Musgrove, T at 135). The temporary measures, including the control breach in the dam number 2 and the 2 eight-inch PVC pipes constructed under dam number 1, are not permanent in nature and do not obviate the need to repair either dam (Musgrove, T 143- 144) The District follows the engineering standards set forth in the National Dam Safety Standards Program, as promulgated by the Army Corps of Engineers in conjunction with Public Law 92-367. These standards are also followed by the Bureau of Reclamation, the Federal Emergency Management Agency (FEMA) and the Soil Conservation Service (Musgrove, T 99-104). The standards used by the District also establish hazard criteria, promulgated by the Federal Dam Safety Program, which establishes hazard classes for the various different sizes of dams and incorporates acceptable hydraulics and spillway capacities for dams. These standards are found in the reference book, Design of Small Dams by the Bureau of Reclamation, Department of Interior, Third Edition, as well as the textbook, Safety of Small Dams, compiled by the American Society of Civil Engineers (Musgrove, T 102-104). The application of these standards was supported by the expert testimony of the District's experts, who established that these standards are reasonable. The principal spillways for both dams are undersized, according to these standards. Dam number 1 does not comply with the applicable engineering and design standards for dam safety and is a threat to public health, safety and welfare because: The principal spillway is totally inoperable; Damage has occurred to the principal spillway barrel via the plugging of the pipe and the erosion and water seepage along the backslope, including the disjointing of the pipes; The discharge barrel downstream of the principal spillway has been crushed; The principal spillway pipe has outlived its design-useful life; The principal spillway is undersized for the present runoff conditions of the developed watershed; There is a significant growth of trees on the front and backslopes; and Lack of maintenance on the emergency spillway has resulted in the growth of woody vegetation and trees which constricts the normal emergency outflow; Under the applicable design and safety criteria, dam number 2 is unsafe and presents a risk to the health, safety and welfare of the public because: The principal spillway has been plugged and closed off; There is no emergency spillway; Trees are growing on the backslopes; There has been limited or no maintenance of the dam; The components of the principal spillway have exceeded their design-useful life; and Water seepage is occurring in the dam. In order to bring dams 1 and 2 up to proper standards and render them safe, the following must be undertaken: The existing principal spillway components for dam number 1 must be removed and replaced with a 120- inch CMP riser and 60-inch CMP barrel; alternatively The owners or interested persons must submit engineering design specifications to complete remedial repairs and alterations of the dam and its appurtenant works to the Districts; The trees and woody vegetation, including all root systems, must be properly removed from the front and back slopes of both dams; All root systems must be fully removed, voids refilled with like materials and properly compacted. Side slopes of the dam should be graded to design conditions (3:1 slopes) and all disturbed areas must be mulched and grassed for future maintenance; The principal spillway on dam number 2 must be removed and replaced with a 36 inch CMP riser and 24 inch CMP; An emergency spillway must be constructed on the southern end of dam number 2 equal to the hydraulic capacity of the present "control breach"; The temporary spillway pipes and excavated areas in dam number 1 and the control breach in dam number 2 must be removed and/or refilled and the embankments restored to properly designed conditions; The proper channel hydraulics for the diversion channel must be restored by excavating and removing soil and vegetated materials. The side slopes of the channel should then be properly slopped and grassed to prevent erosion; and A complete analysis of hazardous conditions below each dam must be provided to determine if remedial measures are necessary below the dams to limit any impact to structures or facilities. The District has estimated that the total cost of bringing the two structures into compliance is approximately $115,000.00 (Petitioner's Exhibit 11 at page 32-33). The upgraded spillway sizes are predicated upon restoring the dams and lakes to their original design height and lake levels (Laird, T 221). The spillway designs and specifications could be down sized, depending upon other design criteria, such as lower lake levels (Laird, T 224-225). Such modifications of the original specifications would have to be considered and approved by the District in the application process. A catastrophic failure of either dam would most likely occur at existing principal spillways due to the existing deterioration and damage to both the dams and pipes, including the piping conditions, the age of the pipe and corrosion thereof (Musgrove, T 114 and 142). A catastrophic failure in dam number 1 would result in the inundation of the three residences below that dam, with at least 1 to 3 feet of water, lasting approximately 6 hours (Laird, T 199-00). The intensity of this inundation was based upon minimal rainfall conditions impacting the existing rivers and creeks. In actuality, the likelihood of a catastrophic failure with low water levels in the creeks and rivers below the dams is unlikely. It is more reasonable to expect the dams to fail when there has been substantial local rainfall and the rivers and creeks are at or near flood stage. The water level and duration of flooding under less favorable assumptions would be devastating downstream.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED as follows: Respondents, Maitland, Campen, and O'Sullivan, who have ownership interests in the dams or parts thereof, be ordered to submit an application to the District within 30 days of the date of the Final Order for the repair of the subject dams in accordance with applicable safety design and engineering standards for dams and as outlined in the Findings of Fact, above; In the event that Respondents, Maitland, Campen or O'Sullivan do not make application to the District as hereinabove directed, the Association, the County or other interested parties may submit applications to the District for a permit to repair the dams in accordance with the aforementioned standards within 60 days of the date of the Final Order; If either application is approved, the required repair work to the dams and the appurtenant works shall be completed within 120 days of the issuance of the necessary permits by the District; In the event that no permit application is submitted to the District, or if the work is not timely completed, then the District may, in its discretion, complete the repairs or de-water the impoundments by breaching the dams in order to eliminate the existing safety hazards; and The Administrative Complaint against Respondent, Sheila Walker, be dismissed. DONE and ORDERED this 10th day of July, 1990, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1990.
