Monday, April 2, 2012

Sierra Club Requests that Gov. Scott Veto HB 1263

Below, please find the letter requesting that Gov. Scott veto HB 1263 Department of Health because of the provisions relating to septic tanks. Sierra Club Florida also asked the Governor to veto SB 1998 Transportation and HB 599 Transportation and Mitigation Programs in a veto letter on this site in a separate post.

March 20, 2012

The Honorable Rick Scott, Governor

State of Florida

The Capitol

400 South Monroe Street

Tallahassee, FL 32399-0001

Dear Governor Scott:

Sierra Club Florida urges you to veto HB 1263, titled “Department of Health.”

Sections 32 through 35 of HB 1263 preempt to a weak, optional, statewide ordinance the ability of local governments to protect the public health and the environmental resources in their jurisdictions from adverse effects from poorly designed and maintained septic systems. HB 1263 limits any evaluation and assessment ordinance to the narrow requirements and stringent limitations in the bill.  The impacts of HB 1263 far exceed those of a simple repeal of the onsite sewage treatment and disposal system (OSTDS) evaluation and assessment program adopted by the legislature in SB 550 during the 2010 session (Laws of Florida 2010-205). 

Specifically the bill would:

1) Allow threats to the public health from poorly designed or maintained septic systems.  HB 1263 allows the continued use of OSTDS that contaminate groundwater with fecal coliform bacteria and nutrients and disallows any requirement that they be repaired.  The contaminants from these systems threaten shallow wells and surface waters and can contribute to disease and algae blooms.  HB 1263 specifically excludes inadequate separation of the drainfield from the highest wet season water table from
the definition of “system failure” [lines 1985-1988] and further, precludes any requirement for the repair of anything except “system failure” [lines 1977-1980]. Since saturated soils eliminate the bacteria needed to treat effluent from a septic tank, a drainfield with saturated soil beneath it cannot properly break down the materials in the effluent with the result that those materials, including fecal coliform bacteria, make their way into groundwater, and from there can seep into surface waters or contaminate shallow wells.  The repealed paragraphs of SB 550 requiring adequate separation are found on lines 1769-1784.  (All line references are to the enrolled version of HB 1263.)

It should be noted with respect to the above that current rules provide as follows:


  • 64E-6.002 defines “drainfield” (18) Drainfield – a system of open-jointed or perforated piping, approved alternative distribution units, or other treatment facilities designed to distribute effluent for filtration, oxidation and absorption by the soil within the zone of aeration (emphasis added)
  • 64E-6.002 provides definitions and diagrams for “filled system” (24), “mound system” (37), and “standard subsurface drainfield system” (51).  The prescribed separation from the drainfield to the wettest season water table is twenty-four inches for each.
  • 64E-6.004 (3)(c) requires that soil profiles be performed to a minimum depth of six feet.
  • 64E-6.015 (6)(a) standards call for twenty-four inches of separation between the bottom of the drainfield absorption surface to the wet season water table. 

These standards which are also approved by the US Environmental Protection Agency are completely ignored by the provisions of HB 1263.

The optional nature of the evaluation and assessment program contemplated by the provisions of 381.00651 (2), (3), and (5) allow and encourage all parties to ignore existing problems and to do exactly nothing about them [lines 1905-1938 and 1945-1950].   The requirement for a 60% majority vote to opt out of the program is a fig leaf designed to make opting out of the program appear more difficult than it actually is since a 60% majority is the same as a majority vote unless a total of seven or eleven or more votes are cast. Only Leon and Volusia of Florida’s sixty-seven counties could ever be affected by this provision as only they contain first magnitude springs and have more than five commission members. The 60% majority requirement for opting out is practically meaningless.

2) The OSTDS provisions of HB 1263 preempt local governments from protecting citizens’ health and the environment.  Local governments are preempted with respect to OSTDS in many ways by HB 1263:

  • 381.0065 (4)(w) and 381.00651 (4) and (6)(a)  preclude a point of sale inspection requirement [lines 1684-1694, 1942-1944, 1958-1960]
  • 381.0065 (4)(x) and 381.00651 (6) preclude a “governmental entity” from adopting a new requirement for non-passive engineer-designed performance-based treatment systems until the Florida Onsite Sewage Nitrogen Reduction Strategies Project is completed [lines 1697-1705, 1999-2002]
  • 381.00651 (2) provides that “Any local government that has properly opted out of this section but subsequently chooses to adopt an evaluation and assessment program may do so only pursuant to the requirements of this section and may not deviate from such requirements.” [lines 1929-1933]
  • 381.00651 (3) provides that “Any county or municipality that does not contain a first magnitude spring may at any time develop and adopt by local ordinance an onsite sewage treatment and disposal system evaluation and assessment program, provided such program meets and does not deviate from the requirements of this section.” [lines 1934-1938]
  • 381.00651 (5) provides that “No county or municipality may adopt an onsite sewage treatment and disposal system evaluation and assessment program except pursuant to this section.” [lines 1948-1950]
  • 381.00651 (6)(c) precludes requiring repairs unless the evaluation reveals “system failure” which is unreasonably narrowly defined. [lines 1977-1988]
  • The same paragraph, 381.00651 (6)(c), provides that “Allowable remedial measures to resolve a system failure are limited to what is necessary to resolve the failure and must meet, to the maximum extent practicable, the requirements of the repair code in effect when the repair is made, subject to the exceptions specified in s. 381.0065(4)(g).”  [lines 1995-1999]  This language eliminates the property owner’s discretion to choose between what is minimally necessary, and what may well be a better choice in terms of long term planning and property management.
  • 381.00651 (6)(d) 3 provides that OSTDs serving a residential dwelling unit on a lot with a ratio of one bedroom to an acre or greater must be exempted from any evaluation and assessment ordinance. [lines 2015-2019]
  • 381.00651 (10)(c) 1 and 2 limit local home rule authority to adopt or enforce ordinances to address public health and safety, or to accomplish environmental and pollution abatement  for water quality improvement that repeal, suspend, or alter the requirements or limitations of 381.00651 [lines 2165-2173]

The preemptions in HB 1263 will cause serious problems for local governments and for Florida.  In a March 5, 2012 letter to Sen. Montford, Tallahassee City Commissioner states: “A recently completed engineering study jointly funded by Wakulla County, Leon County and the City of Tallahassee shows that by 2015 septic tanks will be the largest anthropogenic source of nitrate to Wakulla Spring.  Additionally, the study indicates the State mandated TMDL cannot be achieved without reducing septic tank loadings.”

We urge you to exercise your authority to veto this bill in order to protect the health of Florida’s citizens, to defend the right of self-determination for local communities, and to preserve the resource the entire state depends on.


David J. Cullen

on behalf of the Sierra Club Florida Executive Committee

David J. Cullen

Florida Sierra Club Lobbyist

111 Second Avenue N.E. - Suite 1001

St. Petersburg, FL 33701