RYNERSON, )
)
Petitioner, )
)
vs. ) CASE NO. 82-988
)
WINTER HAVEN SKI CLUB and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 30, 1982, in Winter Haven, Florida.
APPEARANCES
For Petitioner: Joe L. Sharit, Jr., Esquire
Post Office Box 2295
Winter Haven, Florida 33880
For Respondents Ray Mattox, Esquire Applicant: Post Office Box 917
Winter Haven, Florida 33880
For Respondent William W. Deane, Esquire DER: Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
BACKGROUND
By application dated December 15, 1979, Respondents Applicant, Winter Haven Ski Club, sought the issuance of a permit from Respondent, Department of Environmental Regulation, authorizing the construction of a 26' by 14' anchored ski ramp approximately 300' from the west shore and 700' from the north shore, and to construct a water ski slalom course consisting of seventeen buoys covering approximately 2.27 acres of lake surface on Lake Silver, within the City of Winter Haven, Florida. Because Applicant did not submit additional information requested by Respondent on January 22 and July 30, 1980, the application was denied by Department order dated January 27, 1982. Thereafter, Applicant submitted the requested information by letter dated February 3, 1982. On March 17, 1982, the Department issued its notice of intent to issue the requested permit authorizing Applicant to construct the subject pollution source. A timely request for administrative hearing was thereafter filed by Petitioners, Mrs. James Brown and Mrs. Coralie C. Rynerson, pursuant to
Subsection 120.57(1), Florida Statutes. Both are property owners on Lake Silver. As grounds for objecting to the issuance of the permit, Petitioners alleged that they would be "adversely affected by the issuance of . . . (the)
. . . permit," that they ". . . did not receive any form of written notice
. . ." regarding the proposed activity, that the issuance of the permit " . .
. would adversely affect wildlife, fish and aquatic life, increase water pollution, result in substantial noise pollution, and would adversely affect plant life," that a prior water ski ramp in the same location caused " . . . waterfowl inhabiting such lake (to be) substantially diminished and that schools of fish became practically nonexistent," and that the proposed activity ". . . would further result in a hazard to navigation and in substantial hazard to the persons who use Lake Silver for recreational purposes."
The matter was forwarded by Respondent to the Division of Administrative Hearings on April 7, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated May 11, 1982, the final hearing was scheduled for July 28, 1982, in Winter Haven, Florida. At the request of Applicant, the matter was rescheduled to November 3, 1982, and again to November 30, 1982, at the same location.
At the final hearing Applicant presented the testimony of Bruce W. Kistler, Robert I. Segal, and William F. Cheeseman and offered Applicant's Exhibits 1-5; all were received in evidence. Respondent, Department of Environmental Regulation, presented the testimony of Rebecca Lockenbach, a Department environmental specialist, and offered Respondent's Exhibits 1 and 2; both were received in evidence. Petitioner Mrs. James B. Brown testified on her own behalf and offered Petitioner's Exhibits 1-3; all were received in evidence.
There is no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were filed by Respondent on December 20, 1982, and have been considered by the undersigned in the preparation of this order.
Findings of fact not included in this order were deemed to be irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether Respondent/Applicant is entitled to the issuance of a permit to construct an anchored ski ramp and water ski slalom course on Lake Silver in Winter Haven, Florida.
Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT
Respondent/Applicant, Winter Haven Ski Club, Inc., is a nonprofit corporation that was originally organized in 1939. Its membership consists of water skiers in the Winter Haven, Florida area. It is an affiliate member of the American Water Ski Association.
In April, 1976, Applicant constructed a water ski slalom course on Lake Silver, located wholly within the City of Winter Haven, Florida. At a later undisclosed date, Applicant constructed a water ski jump ramp on the same lake.
In 1979 Applicant apparently learned that a state permit was necessary to legitimize its slalom course and ski ramp. Accordingly, it filed two permit applications with Respondent, Department of Environmental Regulation (DER), on January 10, 1980. In application number 53-26777-35, Applicant seeks a permit to construct a water ski jump; in application number 53-26779-3E, it seeks a
permit to construct the water ski slalom course. On January 22, 1980, Applicant was notified by DER that its application was incomplete, and that the following items would have to be furnished: (a) the names and addresses of property owners on the lake, (b) a vicinity map, and (c) a plan view of the proposed slalom course. On July 30, 1980, DER notified Applicant that an affidavit of ownership for the submerged lands in Lake Silver must be filed in order to complete the application. A further notice was provided to Applicant on May 26, 1981, that the permit would be denied if the additional information was not received within a reasonable period of time.
Having failed to receive the affidavit of ownership from Applicant, DER issued a final order denying both applications on January 28, 1982. Thereafter, on February 4, 1982, Applicant furnished an affidavit of control in which it stated that the City of Winter Haven was the "control owner" of the submerged lands under Lake Silver and that the Club was its "lessee". On March 17, 1982, DER issued a letter of intent to issue the requested permits.
On April 5, 1982, Petitioners, Mrs. James Brown and Mrs. Coralie C. Rynerson, who are property owners on Lake Silver, filed a petition for administrative hearing in which they objected to the issuance of the requested permit. Their petition precipitated the instant proceeding.
Lake Silver is a Class III, non-meandered round-shaped lake which covers approximately 52 acres. It lies wholly within the City of Winter Haven. Although its precise dimensions were not disclosed, testimony that it is less than 1,800 feet at its widest or longest point was not contradicted. The lake is Surrounded on three sides by residential streets and on the west side by a railroad track. There is also a city-owned public swimming beach and boat dock on the western side of the lake.
The ski slalom course is now placed in a southeast-northwest line through the middle of the lake. The course consists of a submerged stainless steel cable 1/8 inch thick which lies approximately six feet below the water line and is suspended between anchors at each end. Attached to the cable are buoys or boom arms. There are a total of 22 small buoys 10 to 12 inches in diameter which float on the water and provide a path through which the skier negotiates. The overall length of the course is 850 feet and its width is 75 feet. Under ideal water conditions an approach and exit to the course requires
500 feet on each side of the course. Therefore the total distance required to negotiate the course is approximately 1850 feet, which apparently equals or exceeds the lake at its longest point.
The application reveals that the jump ramp is in the western half of the lake and lies approximately 300 and 700 feet from the westerly and northern shore lines, respectively. It is 26 feet by 14 feet in size and has a wooden surface, a steel structure undercarriage, and styrofoam flotation wood side curtains. It floats on 55 gallon drums attached to the undercarriage. Anchor lines are extended from each of the four corners to drums filled with concrete which serve to anchor and stabilize the ramp. The top of the ramp is approximately 7 feet, 8 1/2 inches above the water line.
Lake Silver was selected as a site for the course and ramp because it is small in size and has smooth water which is conducive to skiing. Further, boat access to the lake is restricted since there is no boat ramp available for the general public. Finally, the lake has public waterfront property from which skiers and spectators can watch the activities.
The Club intends to conduct no more than two or three ski tournaments a year at Lake Silver. It also conducts annual functions for the local girl scouts and boy scouts on the lake, as well as periodic ski days. The course will not be open to the general public.
When the Club is utilizing the facilities, only one tow boat is in use at any given time. The maximum speed of the boat is 36 miles per hour. Several other boats will remain idling in the area to serve in a pickup function if a skier falls.
The shoreline of Lake Silver is vegetated with torpedo grass, water primrose and some cattails. There is little, if any, vegetation around the public swimming area and the American Legion property located on its northern shore. The lake is quite deep, and measures approximately twenty-nine feet deep at each end of the slalom course and nineteen feet in front of the ramp.
There were no water quality tests performed by Applicant or the DER. It is unclear whether an actual visual inspection by a DER representative was made. However, the DER report received in evidence indicates that water quality has deteriorated in recent years due to vegetation clearing, stormwater runoff and low water conditions. The report also indicated that the lake has a silt bottom where the course and ramp are located and that no submerged aquatic vegetation was present. The report concluded that wave action from boat traffic associated with the course and ramp may cause erosion problems, force wading birds and wintering ducks to find refuge elsewhere while skiing is in progress, and constitute a hazard to other boaters. It reached no conclusion relative to the impact of the activities on water quality.
Activities on the lake at the present time include canoeing, fishing, paddle boating, and similar activities. Recreational skiing on the lake is almost nonexistent except for Club activities.
Petitioners are property owners on Lake Silver. They object to the proposed activity on the ground the water quality will be adversely affected, and because the noise and boat activity are detrimental to birds and other wildlife, and will hinder fishing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Subsection 403.087(1), Florida Statutes, provides in part that:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modi- fied without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In
no event shall a permit for a water pol- lution source be valid for more than 5 years. However, upon expiration, a new
permit may be issued by the department in accordance with this act and the rules and regulations of the department.
A ski slalom course and ski ramp are "stationary installations" within the meaning of the foregoing statute for construction of which a permit is required.
Rule 17-4.07(1), Florida Administrative Code, requires that an applicant for a construction permit provide the Department . . . with reasonable assurances based on plans, test results and other information, that the construction . . . operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department regulations." 1/
In this proceeding, Applicant bears the burden of affirmatively providing the Department with those assurances required by the foregoing rule. Florida Department of Transportation v. J.W.C. Company, Inc., 394 So.2d 778, 788 (Fla. 1st DCA 1981). This is accomplished by Applicant first presenting a "prima facie case" showing entitlement to the requested permit. J.W.C. instructs us that at a very minimum, the preliminary showing should include " .
. . the application, and the accompanying documentation and information relied upon by the agency as a basis for the issuance of its notice of intent." Id. at 788.
Here the Applicant attempted to present the minimal evidence required by J.W.C. to support its claim. However, aside from the application and accompanying documentation in the DER file, no other competent evidence was offered. 2/ The DER permit appraisal dated April 28, 1980, merely concluded, inter alia, that "water quality (in the lake) has deteriorated in recent years" and that wave action from boat traffic . . . may cause erosion problems." There were no specific findings relative to the impact of the project on biological resources and water quality, or an affirmative statement that the water quality should not be expected to deteriorate. Moreover, there were no water quality samples taken to determine the lake's water quality before and after the anchored ski ramp was installed. 3/ Based upon this scanty evidence, it cannot be concluded that Applicant has provided the Department with reasonable assurances that the proposed installations will not discharge, emit, or cause water quality pollution in contravention of Department standards J.W.C. Co., supra. For this reason, the application must be denied.
A second impediment to granting the application concerns the requirement that the Department of Natural Resources (DNR) provide permission for the construction of the ski ramp over the lake's submerged lands in the form of a submerged land lease, or that the Applicant provide an affidavit of ownership or control of the submerged lands. See Section 253.77, Florida Statutes. Because no claim of state ownership was made by DNR, an affidavit of ownership or control was submitted by Applicant. According to the affidavit, the City of Winter Haven asserts "control" vis-a-vis "ownership" of the submerged lands of Lake Silver, and that the Winter Haven Ski Club, Inc. is the lessee. However, the DER form requires that the record owner, or his lessee or easement holder, submit the necessary affidavit. Because the record owner of the submerged lands has not been shown, and no document evidencing the Club to be its lessee has ever been submitted, the affidavit fails to comply with Department requirements. See Rule 17-4.05(1), Florida Administrative Code.
This being so, it is concluded that for this additional reason the application must be denied. Cf. Harrison, et al. v. Crowley and Dept. of Environmental Regulation, DOAH Case No. 79-2307 (Final Order entered 5/23/80).
The case at bar is distinguishable from Zeller v. DER and Grew, DOAH Case No. 81-1766, Final Order entered 1/15/82, and from which Respondent has drawn much of its proposed order. In Zeller, only a ski slalom course was involved, the DER field representative conducted an on-site inspection of the lake in question, and live competent testimony was presented as to why no water quality tests were taken, and why reasonable assurance was given that the water quality would not be impaired.
