97-000755 Bermuda Terrace And Pinetree Drive Concerned Citizens vs. Department Of Health Status: Closed Recommended Order on Friday, April 17, 1998.

Summary: Sewage collection system applicant met all technical requirements for issuance of a permit. Operation of system did not cause pollution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERMUDA TERRACE & PINETREE )

DRIVE CONCERNED CITIZENS , )

)

Petitioner , )

)

vs. ) Case No. 97-0755

)

PALM BEACH COUNTY HEALTH )

DEPARTMENT and LOXAHATCHEE )

RIVER ENVIRONMENTAL CONTROL )

DISTRICT , )

)

Respondents. )

_______________________________)

VILLAGE OF TEQUESTA , )

)

Petitioner , )

)

vs. ) Case No. 97-0857

)

PALM BEACH COUNTY HEALTH )

DEPARTMENT and LOXAHATCHEE )

RIVER ENVIRONMENTAL CONTROL )

DISTRICT , )

)

Respondents. )

_______________________________)

VILLAGE OF TEQUESTA , )

)

Petitioner , )

)

vs. ) Case No. 97-2000

)

PALM BEACH COUNTY HEALTH )

DEPARTMENT and LOXAHATCHEE )

RIVER ENVIRONMENTAL CONTROL )

DISTRICT , )

)

Respondents. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 21, 1998, at West Palm Beach, Florida, before Susan B.

Kirkland, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners : Scott Hawkins, Esquire

Jones, Foster, Johnston &

Stubbs, P.A.

505 South Flagler Drive, Suite 1100

West Palm Beach, Florida 33401

For Respondent Palm Victoria Coleman, Esquire

Beach County Health Palm Beach County Health Department

Department: 826 Evernia Street

West Palm Beach, Florida 33401

For Respondent Timothy Gaskill, Esquire

Loxahatchee River Curtis L. Shenkman, Esquire

Environmental Control De Santis, Gaskill, Smith &

District: & Shenkman, P.A.

11891 U.S. Highway One

North Palm Beach, Florida 33408

STATEMENT OF THE ISSUES

Whether the Loxahatchee River Environmental Control

District's applications for construction of wastewater collection

and transmission systems, specifically, Permit Numbers

CS50-298013, CS50-301197, and CS50-305990, should be granted by

the Palm Beach County Health Department.

PRELIMINARY STATEMENT

On December 17, 1996, Respondent, Palm Beach County Health

Department (Health Department), issued Permit No. CS50-298013 to

Respondent, Loxahatchee River Environmental Control District

(ENCON) for construction of sewers in Bermuda Terrace and

Pinetree Drive, immediately adjacent to the Village of Tequesta

(Tequesta). Bermuda Terrace and Pinetree Concerned Citizens

(Concerned Citizens) and the Village of Tequesta filed petitions

on December 30, 1996, challenging the proposed permit.

On March 27, 1997, the Health Department issued a Notice of

Intent to Issue Permit No. CS50-305990 to ENCON for the

construction of sewers in Country Club Point and Anchorage Point,

located in the Village of Tequesta. On April 9, 1997, Tequesta

filed a petition challenging the notice of intent to issue.

On June 24, 1997, the Health Department issued a Notice of

Intent to Issue Permit No. CS50-305990 for the construction of

sewers in Tequesta Country Club. On July 7, 1998, Tequesta filed

a petition challenging the notice of intent to issue.

The cases were referred to the Division of Administrative

Hearings for assignment to an administrative law judge. On

February 25 and March 10, 1997, motions to dismiss were filed by

Respondents, but were denied by Order dated April 16, 1997. The

Order clarified the issues of the hearing as follows: "Whether

the particular system proposed by ENCON should be permitted, not

whether ENCON's decision to replace septic tanks with a sewer

system was a sound decision or whether ENCON followed its own

rules in deciding whether to install the sewer system." By order

issued June 3, 1997, the cases were consolidated for final

hearing.

On June 23, 1997, Circuit Court Judge Moses Baker granted

Petitioners' Motion to Stay Final Hearing, and on July 22, 1997,

the undersigned Administrative Law Judge granted an Order to Stay

the Final Hearing, which had been scheduled for July 28-31, 1997.

On or about October 22, 1997, the stay was lifted by the Circuit

Court of Palm Beach County, and on December 18, 1997, a Notice of

Hearing was issued scheduling the final hearing for January 21,

1998.

At the final hearing, the Health Department called Robert

Mitchell and Umesh Asrani as its witnesses. Health Department's

Exhibits 1-3 were admitted in evidence. ENCON did not call any

witnesses and did not submit any exhibits. Petitioners called

the following witnesses: William Reece, James Macon, Thomas

Bradford, Vince Amy, John Dreith, Thomas Little, Terrance

Bengtsson and Michael Walters. Petitioners' Exhibits 1-4 and 7

were admitted in evidence. Petitioner proffered two exhibits.

At the final hearing, the parties agreed to file Proposed

Recommended Orders within 20 days of the filing of the

transcript. The transcript was filed on February 26, 1998.

Respondent ENCON filed its proposed recommended order on

March 16, 1998. The Health Department did not file a proposed

recommended order. Petitioners filed their Proposed Recommended

Order on March 18, 1998.

FINDINGS OF FACT

1. Respondent, Palm Beach County Health Department (Health

Department) was delegated the authority by the Department of

Environmental Protection to review applications and issue permits

for wastewater collection and transmission systems pursuant to

the Specific Operating Agreement for Delegation of Wastewater

Program Authority From the Florida Department of Environmental

Protection. The argument specifically referenced Chapter 403,

Florida Statutes, and the successor to Title 17, Florida

Administrative Code, which is Title 62.

2. Respondent, Loxahatchee River Environmental Control

District (ENCON), is a water control district.

3. Petitioner, Village of Tequesta ( Tequesta), is a

municipal corporation.

4. Petitioner Bermuda Terrace & Pinetree Drive Concerned

Citizens (Concerned Citizens) is a coalition of homeowners of

record owning property in Bermuda Terrace and on Pinetree Drive.

5. On December 17, 1996, the Health Department issued

Permit No. CS50-298013 to ENCON for installation of sewers in

Bermuda Terrace and Pinetree Drive.

6. On March 27, 1997, the Health Department issued a Notice

of Intent to Issue Permit No. CS50-301197 to ENCON for the

construction of sewers in Country Club Point and Anchorage Point.

7. On June 24, 1997, the Health Department issued a Notice

of Intent to Issue Permit No. CS50-305990 to ENCON for the

construction of sewers in Tequesta Country Club.

8. Currently the wastewater in the areas for which the

sewers are proposed to be installed flows into septic tank

systems. There are 835 homes on the Tequesta Peninsula that

would be hooking up to the proposed sewer system.

9. The Health Department created a review form for internal

use in reviewing applications for sewage collection permits. The

Sewage Collection Checklist contains the statutory and

administrative rule requirements for permitting sewage collection

and transmission systems. The applications submitted by ENCON

were reviewed using the review form. All three applications met

the criteria contained in the applicable statutes and rules.

11. Robert Mitchell, who supervises the permitting for

wastewater collection systems for the Health Department, opined

that the permit applications provided reasonable assurances that

the construction and operation of the sewage system would not

discharge, emit, or cause pollution. A sewage collection system

does not emit or discharge pollution and, if constructed and

functioning according to the technical requirements of the

administrative rules, does not cause pollution. Thus, the

applications compliance with the technical compliance with Rules

62-604.400 and 62-604.300, Florida Administrative Code, is

reasonable assurance that the proposed systems will not cause

pollution.

12 The proposed permits contain the following specific

condition:

Prior to construction, all required permits

or approvals must be obtained for all

aspects of the project from the appropriate

agencies.

13. Any dewatering required by the construction of the

wastewater collection/transmission system will have to meet the

permitting criteria for that particular activity, which comes

under the jurisdiction of the South Florida Water Management

District and not the Health Department.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.57(1), Florida Statutes.

15. Review and issuance of wastewater collection and

transmission systems is governed by Section 403.007, Florida

Statutes and Chapter 62-604, Florida Administrative Code.

16. Rule 62-604.100(7), Florida Administrative Code

provides:

The purpose of Chapter 62-604, F.A.C., is to

provide minimum design and operation and

maintenance standards for domestic wastewater

collection/transmission systems. Systems

shall be designed in accordance with sound

engineering practice. Supported by

moderating provisions, it is intended that

Chapter 62-604, F.A.C., establish a framework

whereby design flexibility and sound

engineering practice can be used in

developing systems with which to collect and

transport domestic wastewater in an

environmentally sound manner.

17. Rule 62-604.300, Florida Administrative Code, sets

forth the general technical criteria and standards for

construction of collection and transmission systems contained in

standard manuals and publications which are incorporated by

reference.

18. Rule 62-604.400, Florida Administrative Code, contains

the design/performance consideration for the review of

applications for permits for collection and transmission systems.

19. Rule 62.604.300(7), Florida Administrative Code,

states: "Permitting requirements and fees related to permitting

are listed in Chapter 62-4, F.A.C."

20. Rule 62-4.070(1), Florida Administrative Code, states:

(1) A permit shall be issued to the

applicant upon such conditions as the

Department may direct, only if the applicant

affirmatively provides the Department with

reasonable assurance based on plans, test

results, installation of pollution control

equipment, or other information that the

construction, expansion, modification,

operation, or activity of the installation

will not discharge, emit, or cause pollution

in contravention of Department standards or

rules. However, for discharges of wastes to

water, the Department may issue temporary

operation permits under the criteria set

forth in Section 403.088(3), F.S.

21. ENCON's three applications met the technical standards

in Rules 62-604.300 and 62-604.400, Florida Administrative Code.

ENCON has provided reasonable assurance that the proposed

wastewater collection and transmission systems will not emit,

discharge or cause pollution.

22. Petitioners argue that the construction of the systems

will require dewatering and ENCON has not explained what it will

do with the water, such as treating the water prior to discharge

or tankering the water off site. Dewatering would come under the

jurisdiction of the South Florida Water Management District and

any permit for dewatering activities would be issued by the South

Florida Water Management District. If a permit is necessary for

dewatering, a specific condition of the permits at issue requires

ENCON to get all necessary permits prior to construction,

including a permit for dewatering.

23. Petitioners do not argue that the plans for the

wastewater collection and transmission systems do not meet the

technical requirements of Rules 62-604.300 and 62-604.400,

Florida Administrative Code. They argue that homeowners who are

currently using septic tank systems will be required to connect

to the sewer system and discontinue use of the septic tanks,

which will result in reduced recharge to the aquifer and an

imbalance in the saltwater/freshwater interface causing saltwater

intrusion to water supply wells. Petitioners cite Save the

Manatee, Inc. & Friends of the Greenway v. Citrus Recreational

Marina, Inc., & Florida Department of Environmental Protection ,

DOAH Case No. 96-1723 ,(DEP, February 5, 1997); Florida Power v.

DER , 605 So. 2d 149 (Fla. 1st DCA 1992); and The Conservancy,

Inc., v. A. Vernon Allen Builder , 580 So. 2d 772 (Fla. 1st DCA

1991) for the proposition that the Health Department should

consider whether the discontinuance of the use of septic tanks

will cause salt water intrusion to the water supply wells. The

cases cited deal with dredge and fill permits and not permits

issued pursuant to Section 403.007, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered granting

Permit Nos. CS50-301197, CS50-305990, and CS50-298013 to ENCON

for construction of sewer systems.

DONE AND ENTERED this 17th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 1998.

COPIES FURNISHED:

Dr. James Howell, Secretary

Department of Health

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

Victoria Coleman, Esquire

District 9 Legal Office

Department of Health

Post Office Box 29

West Palm Beach, Florida 33402

Scott G. Hawkins, Esquire

Jones, Foster, Johnston & Stubbs, P.A.

505 South Flagler Drive

Post Office Box 3475

West Palm Beach, Florida 33402-3475

Timothy W. Gaskill, Esquire

Curtis L. Shenkman, Esquire

DeSantis, Gaskill, Smith & Shenkman, P.A.

11891 U.S. Highway One

North Palm Beach, Florida 33408

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.