Title: Administrative Orders - Dept. of Environmental Regulation-Water Ski Slalom Course-Construction Permit-Approval-No Violation of water Quality Standards-Intervenor's Remedy May Lie With DNR or in Judicial Forum.
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Title: Administrative Orders - Dept. of Environmental Regulation-Water Ski Slalom Course-Construction Permit-Approval-No Violation of water Quality Standards-Intervenor's Remedy May Lie With DNR or in Judicial Forum.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Administrative Orders - Dept. of Environmental Regulation-Water Ski Slalom Course-Construction Permit-Approval-No Violation of Water Quality Standards-Intervenor's Remedy May Lie With DNR or in Judicial Forum. (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 3
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Full Text

Df-/STATIOtJAr.-(T I LL.6rtno,3


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study of the entire basin. The information to be gathered in
these two reports will be of vital significance in determining
the volume and impact of the discharge of the weir, and
possible design modification of the weir. After the above two
studies are completed and prior to submitting an application
for a FDER permit modification, Orange County shall send
written notice to all the parties hereto of its intent to file an
application for permit modification. The parties shall then
meet to formulate an agreement concerning the operational
guidelines and procedures for the weir. Orange County may
file an application for a modification of the FDER Permit
conditions to include operational guidelines and procedures
for the weir based on an agreement of the parties hereto, or in
the event no agreement is reached, based on the findings of
the two studies and any other information Orange County
deems pertinent. If the permit modification is then granted
by FDER, the weir may be operated only in conformance with
the operational guidelines and procedures as contained in the
modified FDER Permit. Nothing contained herein shall be
construed to limit the ability of any of the parties to request
hearings, oppose any application, or obtain any other
applicable administrative or judicial relief in reviewing or
challenging the operation of the weir.
8. The provisions of this Stipulation shall apply to and be
binding upon all parties hereto, their respective officers, direc-
tors, agents, servants, employees, successors, and assigns, and all
persons, firms, and corporations acting under, through, or
for each respective party. The parties hereto agree that each
party shall have the right and ability to enforce the provisions
of this Stipulation as provided by law.
IN WITNESS WHEREOF, the parties hereto have executed
this Stipulation this _day of ,1981.
ORDER
The parties having entered into a stipulation in settlement
of this case, it is
ORDERED: The file opened in this matter by the DOAH
is hereby cosed.
DONE AND ENTERED this 25th day of September, 1981,
in Tallahassee, Florida.
/s/ Robert T. Benton, II, Hearing Officer, DOAH.
/ *

/DEPT. OF ENVIRONMENTAL REGULATION.
Water Ski Slalom Course-Construction Permit-
Approval-No Violation of Water Quality Standards-
Intervenor's Remedy May Lie With DNR or in
Judicial Forum.
SHIRLEY ZELLER, Petitioner, vs. JAMES HOOPER GREW, JR.
and STATE OF FLORIDA, DER, Respondents. Case No. 81-1766.
FINAL ORDER
On December 4, 1981, the duly appointed hearing officer
in the above-styled matter completed and submitted to the
Department and all parties a Recommended Order, con-
sisting of Findings of Fact, Conclusions of Law and a
Recommendation. A copy is attached as Exhibit "A".
Pursuant to Sec. 17-1.68(1), F.A.C., and Sec. 120.57(1)
(b)8., F.S., the parties were allowed ten (10) days in which
to submit written exceptions to the Recommended Order.
Neither the Petitioner, nor the Respondents submitted
exceptions. The Recommended Order thereafter came


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before me, as head of the Department for final agency
action on this matter. Having considered the Recommended
Order submitted herein ard being otherwise fully advised, it is
therefore:
ORDERED that the hearing officer's Recommended Order
is hereby adopted in toto as the final action of this agency.
Accordingly, it is ORDERED that Permit No. 53-41460-3E
be issued.
DONE AND ENTERED this 15th day of January 1982,
in Tallahassee, Florida.
/s/ Terry Cole for Victoria J. Tschinkel, Secretary, DER.
RECOMMENDED ORDER


Pursuant to notice, a formal hearing was held in the
above case before the DOAH by its duly designated Hearing
Officer, Donald R. Alexander, on October 20, 1981, in
Winter Haven, Florida.
APPEARANCES: For Petitioner and Intervenor Lake
Florence Property Owners Association: Jack P. Brandon,
Esquire, Post Office Box 1079, Lake Wales, Florida 33853;
For Respondent: William W. Deane, Esquire, 2600 Blair
Stone Road, Tallahassee, Florida 32301; For Respondent/
Applicant: Andrew R. Reilly, Esquire, Post Office Box
2039, Haines City, Florida 33844.
BACKGROUND: By application filed on March 31, 1981,
Respondent/Applicant, James Hooper Grew, Jr., sought
the issuance of a permit from Respondent, DER, to
construct and install a twenty-two (22) buoy water ski
slalom course using an 850 foot cable and covering a
section of Lake Florence near Winter Haven, Florida. On
June 19, 1981, the Department issued its Permit Number
53-41460-3E authorizing Applicant to construct the subject
pollution source with certain conditions. A timely
objection and request for hearing pursuant to Subsection
120.57(1), F.S., was thereafter filed by Shirley Zeller,
a property owner on Lake Florence, on the ground Lake
Florence was a "wildlife sanctuary and a fisherman's lake"
and not suitable for the installation of a ski slalom course.
Respondent transmitted the matter to the DOAH on July 8,
1981, with a request that a Hearing Officer be assigned to
conduct a hearing. By Notice of Hearing dated August 5, 1981,
the matter was scheduled for final hearing on September 22,
1981, in Winter Haven, Florida. At the request of Petitioner,
and without objection from Respondent and Applicant, the
final hearing was rescheduled to October 20, 1981, at the
same location.
On July 24, 1981, the Lake Florence Property Owners
Association, which opposed the application, filed its Petition
for Leave to Intervene pursuant to Rule 28-5.202, F.A.C. as
grounds for objecting to the issuance of the requested permit,
Intervenor claimed "the location of the ski slalom course on
Lake Florence (would) have a detrimental affect (sic) on the
lake itself and on the use of enjoyment of the lake." By order
dated August 24, 1981, the Petition was granted and Inter-
venor given party status in this proceeding.
At the final hearing, Petitioner testified on her own behalf
and Intervenor presented the testimony of Colonel W.W.
Wilcox, John Taylor, Mary Ellen Baker, Robert Soloman, Jean
Cummings, Woodrow Bryan, Dr. Jeanne R. Hart, Barbara
Heddon, Dr. John Haldeman and Dr. Yousef A. Yousef, and
offered Petitioner's Exhibits 1-9, each of which was received
into evidence. Respondent presented the testimony of
William Kutash and offered Respondent's Exhibits 16.C


ADMINISTRATIVE ORDERS


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366-A /L--.JII v 111 I'... I I r-I,
Respondent/Applicant testified on his own behalf and
presented the testimony of Tony Pierce and offered
Respondent Grew's Exhibits 1-3, each of which was received
into evidence.
The transcript of hearing (two volumes) was filed on
November 10, 1981. Proposed findings of fact and conclusions
of law were filed by Petitioner and Applicant on November 23,
1981 and have been considered by the undersigned in the
preparation of this order. Findings of fact not included in this
order were considered immaterial to the results reached, were
not relevant to the issues, or were not supported by competent
and substantial evidence.
The issue herein is whether Respondent/Applicant is entitled
to a permit to construct a water ski slalom course on Lake
Florence near Winter Haven, Florida.
Based upon a review of all the evidence, the following
findings of fact are determined:
FINDINGS OF FACT: 1. By application dated March 27,
1981, Respondent/Applicant, James Hooper Grew, Jr.,
sought the issuance of a permit to construct and install a
twenty-two (22) buoy water: ski slalom course using an 850
foot cable and covering a 75 foot wide by 850 foot long
section of Lake Florence near Winter Haven, Florida. A copy
of the permit application may be found as Respondent Grew's
Exhibit 1. The application was received by the Southwest
District Office of Respondent, DER, on or about March 31,1981
Upon review of the application, a request for an affidavit
of ownership of the upland property was made by Respondent
on April 27, 1981. (Respondent's Exhibit 2). This was
supplied by Applicant on May 4, 1981. (Respondent's
Exhibit 3).
2. An on-site inspection of Lake Florence was made by a
Department representative on May 4, 1981, and an in-house
review subsequently completed on May 27, 1981. (Respondent's
Exhibit 5). Thereafter, a Notice of Intent to issue the
requested permit was issued on May 28, 1981, with the
following two conditions: (a) that the course be located near
the center of the lake to minimize disturbance of existing
shoreline habitat and other landowners, and (b) that
the use be limited to a non-commercial private operation.
(Respondent's Exhibit 5). Respondent further stated the is-
suance of the permit would not (a) result in the alteration
of the natural shorelines in an adverse manner, (b) cause
a serious impediment to navigation, or (c) result in a
degradation of local water quality by reducing or eliminating
the ability of vegetated, submerged and transitional lands
to filter, stabilize or transfer nutrients. Because the State
asserted it owned the submerged lands in which Lake Florence
was located, approval to pursue the project was obtained
from the Director of the Division of State Lands on May 31,
1981. (Respondent's Exhibit 4).
3. On June 19, 1981, Respondent issued Permit Number
53-41460-3E granting the requested permit. By letter dated
June 25, 1981, Petitioner, Shirley Zeller, a homeowner on
Lake Florence, requested an administrative hearing to con-
test the issuance of the permit. The receipt of this letter
by Respondent stayed the implementation of the permit, and
precipitated the instant proceeding.
A Petition for Leave to Intervene filed on behalf of the
Lake Florence Property Owners Association was granted on
August 24, 1981. The Association was formed some six weeks
earlier and includes twenty-three of the thirty residential


1/0) /R9)


property owners on the lake.
4. Lake Florence is a land-locked natural Class III water
body lying two miles east of the City of Winter Haven in
Polk County, Florida. Its maximum length (running in a
north-south direction) is approximately 2,400 feet while
its maximum width is approximately 2,150 feet. The surface
area of the lake is 74 acres and its average depth is between
11 and 12 feet.
The northeastern quadrant of the lake is surrounded by
an orange grove, and the eastern quadrant by a primitive
area which harbors alligator nests, bird nesting areas and
wildlife habitat. Except for an undeveloped area on the
western shore, the remainder of the lake includes approximately
30 residential homesites, including that of Applicant.
There is no public access to the lake except for a small
dirt road adjacent to the orange grove which is used in-
frequently by non-resident fishermen.
5. The proposed project will run in a north-south
direction in the center of the lake and will form a series of
buoys around which the skier will traverse. The course will
use an 850-foot stainless steel cable (3/8-inch width) suspended
six feet under water and anchored at each end by
concrete weights at the bottom of the lake. Attached to the
cable will be eight PVC pipe arms from which 22 buoys will
be floated on the water's surface. The buoys are connected
to the arms by nylon lines. Only 8 inches of each of the
buoys will appear above the water. When constructed, the
course will occupy approximately 1.4 acres of lake's water
surface.
Grew estimates he will need 1,900 feet to traverse the
entire course. This is 100 feet less than the minimum surface
area recommended by the American Water Ski Association
for slalom courses. Even if 2,000 feet are used to negotiate
the course, there will still be 100 feet of buffer space on
either end. The minimum distance required to safely
negotiate the course is dependent upon the skier's level of skill.
Because Grew is a professional skier, the 1,900 foot distance
is deemed to be adequate.
If the skier hits a buoy, the buoy will be temporarily pushed
under the water or the skier will fall. If run over by a
Sboat, the nylon lines connecting the buoys to the arms will
generally break. It has been Grew's experience that if fishermen
snag their lines on the cable, the lines will also break. However,
the course itself is not expected to constitute a hazard to
boats and their passengers.
6. Applicant is a professional ski instructor who operates
a ski school at Lake Roy, which is less than two miles from
Lake Florence. He has lived on Lake Florence since June 1,
1981. If the permit is issued, he intends to allow only himself
and his boat driver to use the course. If other Lake Florence
residents wish to use it, he has no objection. Grew estimates
he will ski no more than seven or eight times per week with each
session lasting no more than 10 to 12 minutes. Because he
is out of the country for four months each summer, he plans to
either sink the course or remove it completely during that
period of time.
Grew owns a special boat designed specifically for pulling
water skiers. It is powered by a 225-horsepower inboard motor
and is designed to minimize the amount of wake for the
slalom skier. It is the largest and most powerful boat on the
lake. The maximum speed of the boat while the skier is
negotiating the course is 36 miles per hour.


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2/22/82 ADMINISTRATIVE ORDERS
sediment, degraded particles, fin
Applicant has skied daily on Lake Florence since moving s ediment, degraded particles, in
there on June 1, 1981. Approximately 75 percent of this which le on i ts bottom. he t
skiing activity has been trick skiing while the remainder of the lake wze the
was free slalom. He will continue to ski a comparable amount increase and have concomitan
of time even if the application is denied, water quality. This is true even
7. The lake is now used primarily by its residents for fishing, the lake in its center section is a
swimming and a very small amount of water skiing. Several feet, and tends to minimize the
homeowners frequent the low-lying areas on the eastern shore experienced in more shallow are
to view the various species of birds that habitat that area. A CONCLUSIONS OF LAW: 1
number of homeowners have small children or grandchildren of the subject matter and the pa
who fish, swim and play around the shoreline. section 120.57(1), F.S.
The homeowners fear that if the application is granted, the 2. Subsection 403.087(1), F
quiet character of the area will be disturbed, that more high- (1) No stationary installal
powered boats will be attracted to the lake, that the birds who be expected to be a source of
nest in the primitive area will be threatened and leave, and be operated, maintained, con
that the cable will interfere with fishing. They are also con- modified without an appropr
cemed that the activity will be dangerous to other residents who issued by the department, un
use the lake, and feel that it is wrong for one individual to be rule. c e i
able to dedicate the center of the lake for his own personal A si salom couse is ttio
meaning of Subsection 403.087(
use to the detriment of all others. They do not object to meaig o useti
Grew skiing -- for that is the right of any homeowner -- but a permit is required. A
only to the installation and use of the slalom course on the lake. for a construction permit
ony t te for a construction permit provide
8. A Department Environmental Specialist conducted an reasonable assurance based on p
on-site inspection of Lake Florence on May 4, 1981. He made information, that the construct
no formal biological and ecological survey since he considered of the installation will not disch
the application to be a short-form application within the in ontraention of Department
meaning of Rule 17-4.29(3), F.A.C. Instead, the representa- in contravention of Department
tive made a visual inspection of the area and concluded that regulations."
the course would not have an adverse impact upon the lake 4. The Department, with th
environment nor be a navigational hazard within the lake all parties, has asserted the cons
itself. There were no water quality tests conducted by place within a navigable body o
Applicant or the Department on the theory that the materials within the purview of ChL 253,
used to construct the course and placed in the water would applicant must comply with ad
not impair its quality. At the present time, Lake Florence in Rule 17-4.29(6), F.A.C. This
suffers from some degree of euthrophication and lies between applicant affirmatively show "t
the range of a dean lake and a eutrophic lake. interfere with the conservation
The lake has beer. designated by the Game and Fresh and that "the proposed project
Water Fish Commission as a bird sanctuary. The primitive hazard, or a serious impedimei
area on its eastern shore contains a rookery for Herons and If indeed ChI 253 jurisdicti
provides a habitat for many species of birds. Although the Lake Florence is a navigable b
Intervenor fears the boat engine noise and concentrated of navigability, a water body s
skiing activity over a small area of the lake will disrupt or non-navigable. Odom v. Delto
interfere with the nesting species, some disruption and (Fla. 1976). Aside from a lett
interference already occurs whenever Applicant uses his Division of State Lands purpo
boat for skiing purposes. The installation of the course is submerged lands located unde
not expected to cause any additional detrimental effect upon of record upon which to make
the conservation of fish, marine or wildlife, being so, it is concluded that t
Approximately 10% of the lake's 7,400 foot shoreline the project stems from Ch. 40
is vegetated with cattaiL The type of vegetation, if any, in and rules promulgated their
on the remainder of the shoreline was not disclosed. Vegeta- judging whether the requested
tion is necessary in order to dissipate the wave action that 5. It is well established tha
would otherwise cause erosion of the shoreline over time. burden to affirmatively provide
The amount of vegetation in the north and south areas of assurances required by Depart
the lake where the boat turns around is minimal and may not Company, Inc., 396 So.2d 771
be sufficient to deter future erosion of the shoreline in preliminary showing of "reasc
those areas. made by Applicant, the burde
After the course is constructed, skiing activity will be Petitioner (protesting property
concentrated within a narrow band in the center of the lake evidence to prove the truth ol
where the course is located. As such, the wave action from if it fails to present such evide
the boat will stir up the bottom of the lake causing proof as to the controverted f
turbidity. The amount of turbidity will be exacerbated by (a) must be issued. J.W.C. Co., I
the heavy concentration of skiing in a small area and (b) loose


367-A


e site and organic material
pensive use on that portion
bidity and phosphorus
adverse effect upon the
though the average depth of
approximately 11 to 12
turbidity in relation to that
as.
. The DOAH has jurisdiction
rties thereto pursuant to Sub-

.S., provides in part:
tion which will reasonably
Sair or water pollution shall
structed, expanded or
iate and current valid permit
less exempted by department

ary installation" within the
(1) for construction of which

requires that an applicant
Le the Department "with
plans, test results and other
on ... operation, or activity
large, emit, or cause pollution
standards, rules or

Apparent acquiescence of
truction activity will take
f water, and as such, falls
F.S. If that is true the
litional standards set forth
rule requires that an
hat such activity will not
Sof fish, marine and wildlife"
t will not create a navigational
it to navigation."
on lies, it must be shown that
ody of water. Absent evidence
should be regarded as being
na Corp., 341 So.2d 977,989
er from the Director of the
rtedly asserting ownership to the
r the lake, there is no evidence
This determination. This
he Department's jurisdiction over
3, F.S., and the standards there-
eunder should be utilized in
I permit should be issued.
t the Applicant bears the
Le the Department with those
ment rules. Florida DOT v. J.W.C.
8, 788 (Fla. Ist DCA 1981). A
unable assurance" having been
n of proof is upon the
y owners) to go forward with
the facts asserted in its petition -
:nce, or to carry the burden of
acts asserted, then a permit
ic., supra at 789.





368-A l--L.JI V III N11J I Fi- "
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6. Applicant is required to give "reasonable assurance" that
the installation is not expected to be a source of water
pollution in contravention of Department rules and standards.
The materials that are to be installed in the water the
anchors, lines, floats and buoys pose no threat to water
quality. Whether the effects of the boats that use the course
must also be considered hinges on whether the course alone or
'uses incidental thereto are viewed as sources having an
environmental impact. Neither the Department or Applicant
ascribe to the view that uses incidental to a project should be
considered as relevant potential sources of pollution. How-
ever, the J.W.C. Co., Inc. decision, supra, reached a different
result and approved the consideration of pollutants to be
emitted by automobiles expected to travel on a completed
road widening project. The same rationale is applicable
here, and in the absence of any contrary authority, the effect,
if any, from boats using the course should also be considered.
The evidence reveals that Grew will ski approximately the
same amount of time after the course is installed as he did
prior to its installation. He does not intend to allow others
to use it, except those residents on Lake Florence who wish
to do so. None expressed a desire to use the course. Because
the lake has no public access, its accessibility to the public is
foreclosed. Accordingly, it is concluded that the construction
of the course will generate no additional boat usage, and that
the amount of skiing on the lake should remain the same.
Admittedly, the boat(s) using the slalom course will have
a high-powered engine causing wake action that may accelerate
erosion of the shoreline. At the same time, turbidity will be
increased in a lake that is already subject to partial
eutrophication. But the ill effects of Grew's skiing already
occur, and even if the course was not installed, they would be
expected to continue. We have, then, a rare situation when
a "new" source would only result in the same "old" pollution
which would otherwise have resulted anyway. The Department
has reasonable assurance, therefore, that Ch. 17-3, F.A.C., _
would not be violated. Harrison et aL v. Crowley and DER,
DOAH Case No. 79-2307 (Final Order entered May 23,
1980).3 [2 FALR 872-A]
7. Intervenor complains that an extensive Department
biological survey and ecological study was not made prior to
the evaluation of the requested permit. However, the
Department construes the application herein to be a short-
form project having less significance than others, and requiring
a less extensive survey and study. Less comprehensive surveys
and studies are "a practical necessity" because "the
agency must focus its limited resources on those projects which
are expected to have significant short and long-term
environmental impacts," and vary "... the precision and
depth of initial agency action... according to the significance
of the project." Florida Bi-Partisans Civic Affairs Group v.
DER, DOAH Case No. 79-100 (Final Order entered
December 11, 1979) [2 FALR 103-A]. Moreover, by
credible and credited evidence, Applicant and the Department
have given reasonable assurance that water quality standards
will not be violated.
8. Intervenor's remaining argument concerns the
Department's failure to give notice of its intended action to
all homeowners on the lake. The application form merely
requires that the applicant identify the "adjoining property
owners" this information was furnished by Grew. However,
a Department publication provides that [i] f property
owners on the opposite shoreline may be materially affected,"


FIVE ORDERS


2/22/82


the applicant include those names and addresses as well.
State of Florida Joint Permit Application for Dredge and
Fill Structures, page 9, Item No. 8. While the two sets of
instructions appear to conflict in part, the more stringent
requirements repose a measure of discretion within the
agency, and it is concluded there was no abuse on the part
of Respondent in the case at bar. In view of the opposition
presented in this case, it is suggested that in future cases of
this nature notice be disseminated to all lakefront property
owners where practicable.
9. Intervenor's principal concerns are well-intentioned.
Grew's appropriation of the center of the lake for his own
personal use has understandably evoked the ire of the
adjacent property owners. If indeed a remedy exists to
prevent this under the factual circumstances presented herein,
it does not lie with the Department; rather, it must be pursued
before the Department of Natural Resources or in a judicial
forum.
10. Applicant having provided reasonable assurance that
the proposed project will not contravene Department standards
and requirements, and there being insufficient evidence to
contradict this affirmative showing, the requested permit
should be issued. J.W.C. Co., Inc., supra.
RECOMMENDATION: Based on the foregoing findings
of fact and conclusions of law, it is
RECOMMENDED that Permit Number 53-41460-3E be
issued to Respondent/Applicant, James Hooper Grew, Jr.,
subject to the terms and conditions set forth in the
Department's letter of June 19, 1981.
DONE AND ENTERED this 4th day of December, 1981,
in Tallahassee, Florida.
/s/ Donald R. Alexander, Hearing Officer, DOAH.

1. In its letter of June 19, 1981, issuing the requested permit, the
Department stated that"... the subject pollution sources (was
being) issued pursuant to Sec. 253 and 403, F.S."(Respondent's
Exhibit 6).
2. For example, Florida's test of navigability is based upon the
water body's potential for commercial use in its ordinary and natural
condition. Odom, supra at 988. Here the record revealed that the
usage was essentially recreational in nature. Then, too, whether Lake
Florence had ever been meandered, so as to create a rebuttable
presumption of navigability was not disclosed.
3. Even if Ch. 253 jurisdiction had been established, the same
conclusion would have to be reached concerning the impact of the
project on conservation standards. The irritating and disconcerting
effects on the nesting species in the primitive area of the lake caused b3
Grew's skiing will not increase or abate after the course is constructed,
but should remain the same.
*


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