vs. ) CASE NO. 87-1188
) GEORGE A. ROBERTS and the STATE OF ) FLORIDA DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
Respondents. )
vs. ) CASE NO. 87-1253
) GEORGE A. ROBERTS and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
Respondents. )
This case went to final hearing in Clermont, Florida, on July 9, 1987, on the application of George A. Roberts for a permit to install a permanent slalom water ski course in Lake Emma, south Lake County, Florida.
For Petitioner: William J. Law, Jr., Esquire
For Respondent: Edward Dion, Esquire (George A. Roberts) Orlando, Florida
(DER) Vivian F. Garfein, Esquire Tallahassee, Florida
On November 26, 1986, George A. Roberts applied to the Department of Environmental Regulation (DER) for a permit/water quality certification to construct in Lake Emma, south Lake County, Florida, a permanent slalom water ski course 800 feet long and 75 feet wide. The ski slalom course is to be made up of: 4 concrete anchors, two at each end, weighing approximately 125 pounds each; a center cable of polyprolene line, 2 eight foot PVC tubes and 6 forty-one foot PVC tubes, all of which is submerged eight feet below the surface of the water. Attached by strings to the PVC pipes are rubber inflatable buoys, eight to ten inches in diameter. The buoys float on the surface of the water, marking
the course. The course itself will take up only approximately 1.39 acres of the surface of Lake Emma. Allowing for 300 feet of turnarounds at each end of the course and an additional 75 feet of width to complete the course's circuit, more like 4.82 acres of lake surface would be required for use of the ski course.
After assessing the biology and water quality of Lake Emma and appraising the applicatio, the DER, on February 20, 1987, gave notice of its intent to issue a permit. Harvey Higgins and Charles Coe (Case No. 87-1188) and the Villa City Home Owners Association, Inc., (Case No. 87-1253) timely filed petitions for a formal administrative proceeding to challenge the application. But, at the final hearing, the petitioners put on no competent, substantial evidence to challenge either DER's assessment of the impact of the proposed slalom water ski course on the biology and water quality of Lake Emma or DER's determination that the applicant had provided reasonable assurances that the proposal will not violate state water quality standards. Nor did the petitioners contest the evidence that both the Florida Department of Natural Resources and the U.S. Army Corps of Engineers approved Roberts' application.
Lake Emma is a 175 acre, meandered lake located within the Palatlakaha River Basin, large enough to accommodate the proposed ski course and with adequate water depth, averaging 15-16 feet at the proposed location. Lake Emma is the northern most lake in what is known as the Clermont Chain of Lakes in Lake County. The chain of lakes and Lake Emma are classified by the DER as "Outstanding Florida Waters." Boat traffic to Lake Emma is limited by two water control structures in the immediate vicinity. The only public access is by a boat ramp and launching facility located on the Palatlakaha River at State Road 19, approximately 2.5 miles south of the proposed ski course.
One of the channels leading into Lake Emma is in the northwest quadrant of the lakeshore; the other is almost directly in the middle of the southern half of the lakeshore. Approximately 20 residences are on the land contiguous to the lakeshore, mostly on the northern and eastern shorelines. Most of the lakeshore remains in a natural state, i.e., buffered by an average of 25 feet of vegetation in the littoral zone of the lake. For this reason, diverse species of fish, birds and other animal life continue to be supported by the lake and its related habitats, and recreational fishing continues to be very good.
With population growth and the establishment of residences along the lake, the use of Lake Emma has changed to some extent over the years. In recent years, Lake Emma has been used mostly for recreational fishing and for boating in canoes and low-powered boats by residents along the lakeshore (including children) and others. The lake also has been used for recreational water skiing, but generally only by residents along the lake. Water skiing in Lake Emma has been occasional and minimal compared to other uses of the lake.
More recreational fishing is done on the western shore of Lake Emma between the channels than in other parts of the lake. But all of the lake can be and is used for recreational fishing.
In April, 1986, George A. Roberts bought 2.1 acres of land with 205 feet of frontage on Lake Emma. An Orlando resident at the time and avid water skier, Roberts began using the lake for water skiing on weekends and holidays. Without a permit, he installed a slalom course near the western shore of the lake. After a nearby resident complained, Roberts moved the course to the northeastern part of the lake, opposite his property, over the Memorial Day weekend. The course remained in that location (the proposed site) until November, 1986, when additional complaints prompted Roberts to remove the course
and apply for a permit. Roberts now lives in a small residence he has rented on the lake. If his application is approved, he intends to build a full-time residence on his property on Lake Emma.
During the time Roberts alone made use of his slalom course (with his party of two to three guests), his skiing on the course did not interfere much with others' use of the lake. Once, or maybe a few times, he asked recreational fishermen if they would move to allow him to use the course. Use of the course with Roberts' high-powered ski boat also caused minor erosion of de-vegetated shoreline of a resident whose property is opposite where Roberts turned his boat around after going through the course. But generally the stable, gradually sloped and well-vegetated shoreline of Lake Emma is not anticipated to be adversely affected by boat traffic. Of course, people could not fish in the area of the ski course while Roberts was using it. In addition, even when Roberts was not using the ski course, fishermen had to avoid the ski course when trolling or drift fishing to keep their lines from getting tangled in the lines and pipe under the water.
Roberts' application represents that he will continue to use the permanent ski course for which he has applied only on weekends and holidays and, occasionally, on weekday evenings. His intention is for only one boat and one skier to use the course at a time, and he only anticipates using the course for two to four hours in any weekend period. No professional use of the course, ski instruction, practice for competition, competitions or tournaments are planned.
However, the application also states that Roberts' ski course will be open to public use. Although there is no public access to the lake at Lake Emma (and Roberts does not intend to allow public access from his property), there is public access from the boat ramp on State Road 19, 2.5 miles to the south.
There is a realistic likelihood that public use of the course will increase as word spreads that there is a permanent slalom ski course in Lake Emma that is accessible and available for public use. While applying for a slalom course for public use, Roberts also foresees a need to control the use of the course by the public for the ski course to remain compatible both with his desires and with existing uses of Lake Emma by the members of the public. But there is no satisfactory and effective way for Roberts to control use of the ski course once it is permanently installed.
Roberts has offered to submerge the ski course four to seven feet below the surface whenever he is not using the course on consecutive days. This would solve any problems of over-use or abuse by the public but effectively would eliminate public use altogether.
Other permanent slalom ski courses already are available for public use in the area. One is on Lake David, just five miles away in Groveland; one is on Lake Bluff, another three miles away in Mascotte; and one is Little Lake Harris, approximately 15 miles away in Howie-in-the-Hills. All three have direct access by public boat ramp. Additionally, there are five permanent slalom courses on lakes within five miles of Lake Emma that do not have public access.
Virtually no public sentiment in favor of Roberts' proposed permanent ski course was expressed at the hearing. 2/ To the contrary, fourteen residents along the shore of Lake Emma spoke in opposition. Many others signed petitions in opposition. In addition, the 62-member association of home owners and residents in the area, the Villa City Home Owners Association, Inc., (in part made up of some of the same people who spoke and signed petitions in
opposition) resolved to oppose the ski course. Even the Lake County Pollution Control Department has indicated that it has "reservations with the installation of a slalom ski course on an Outstanding Florida Water" but that it concurs but only "if the lakefront property owners have no obj ections."
CONCLUSIONS OF LAW
No party has questioned the jurisdiction of the DER over the installation of the proposed slalom water ski course in Lake Emma. All parties accept that the application is for a "dredge and fill" activity for which a permit is required under Chapter 403, Florida Statutes, and Chapters 17-4 and 17-12, Florida Administrative Code.
Because the "dredge and fill" occasioned by the installation of the proposed slalom course--essentially, the placement of four 120-pound concrete blocks on the lake bottom-- is so minor, it is not particularly surprising that no significant impacts on water quality, or even the shoreline, is expected from installation of the course, or even boat traffic from the use of the course is not expected to impact water quality or the shoreline significantly. The applicant has provided the reasonable assurances required by Section 403.918(1), Florida Statutes (1985), and Rule 17-12.070(1), Florida Administrative Code (1986).
However, when the DER assumes jurisdiction over a dredge and fill activity in an Outstanding Florida Water, like Lake Emma and the rest of the Clermont Chain of Lakes, "the applicant must provide reasonable assurance that the project will be clearly in the public interest." Section 403.918(2), Florida Statutes (1985). See also Rules 17-12.070(3) and 17-4.242, Florida Administrative Code (1986).
Section 403.9l8(2)(a), Florida Statutes (1985), provides:
In determining whether a project
. . . is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity
of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative
value of functions being performed by areas affected by the proposed activity.
The recent decision in Miller v. Dept. of Environmental Regulation,
504 So.2d 1325, 1327 (Fla. 1st DCA 1987), construes the question of adverse effect on the "property of others," raised in the first criterion under Section 403.918(2)(a), as not to encompass the question of an alleged trespass on the property of others. The court explained:
The statutory reference to property of others has no logical meaning outside an environmental context
in light of the jurisdiction to adjudicate all actions involving the title and boundaries of real property conferred upon circuit courts by section 26.012(2), Florida Statutes. And, as noted by appellee, agencies would not, by their nature, ordinarily have jurisdiction to decide issues of law inherent in evaluation of private property impacts.
Id.
Except for the situation addressed by the Miller decision, it is
apparent from the criteria that, if consideration of the criteria is restricted to "an environmental context," the "environmental context" must be construed in its broadest terms. Consideration of criteria such as "the public health, safety and welfare," "navigation," "fishing or recreational values," "significant historical and archeological resources," and "current condition and relative value of functions being performed" essentially involves the DER in a process in the nature of land and water use determinations.
It is appropriate to first consider an aspect of the seventh criterion in Section 403.918(2)(a): the current condition and relative value of functions being performed by areas affected by the proposed activity. Lake Emma, and the entire Clermont Chain of Lakes, is an Outstanding Florida Water. Rule 17- 3.041(4)(i), Florida Administrative Code (1986). The Legislature granted DER the authority to promulgate "rules which provide for a special category of water bodies within the state, to be referred to as "Outstanding Florida Waters," which water bodies shall be worthy of special protection because of their natural attributes." Section 403.061(27)(a), Florida Statutes (Supp.1986). By Rule 17-3.041(1), Florida Administrative Code (1986), the DER has stated: "It shall be the Departmental policy to afford the highest protection to Outstanding Florida Waters ...." See also Rule 17-3.011(8), Florida Administrative Code (1986).
In addition, again as relating to the seventh criterion, Lake Emma primarily has been used for recreational fishing and boating in quiet, relatively natural surroundings. Boating generally had been either without engines or with low- powered engines. Water skiing on the lake has been a relatively minor part of the overall recreational use of the lake.
In order for his application to pass the "public interest" test Roberts has stated that his proposed ski course will be open to the public. But, ironically, the more the ski course is used by the public, the more that
use will clash and interfere with existing use of the lake. To deal with the irony, and indeed to preserve conditions satisfactory to Roberts himself, Roberts proposed to "control" public use, either by submerging the ski course when he is not using it or by appointing himself as the sole arbiter to decide which members of the public will be allowed to use the course. In either case, trying to "control" public use underscores the essentially private purpose of Roberts' ski course.
While the ultimate issue is not the need for a permanent slalom water ski course on Lake Emma, it is relevant to the question whether the proposed project is clearly in the public interest that there are several other lakes in the area that currently have permanent slalom water ski courses that are accessible and available to, and used by, the general public. The Order Of Remand, Port Everglades Authority v. Dept. of Environmental Regulation, et al., DOAH Case No. 86-0039, entered April 6, 1987, deals with a different question (among others, whether, after a finding that a project is contrary to the public interest, consideration must be given to a "no action altern ative" before consideration is given to mitigation of adverse impacts). It does not make irrelevant the availability and accessibility of other permanent slalom ski courses in the area.
Similarly, the consideration of criterion 5 leads to irony. Projects of a temporary nature may often be more in the public interest. But in this case, the very permanence of the ski course encourages, indeed makes possible, general public use of the ski course. Ironically, it is the permanence which leads to general public use which could lead to adverse effects on current use of the lake.
As to criterion 1 of Section 403.918(2)(a), the project will not adversely affect the public health and safety. It will affect the public welfare only in the broadest sense, as explained in connection with criterion 7, above, and criteria 3 and 4, below.
As to criterion 2, the project will not adversely affect the conservation of fish and wildlife or their habitats in any significant way.
Nor, relative to criterion 6, will the project either adversely affect or enhance significant historical and archaeological resources. (None are apparent from the evidence.)
As to criterion 3, neither the project nor use of the project is expected to cause harmful erosion or shoaling or to adversely affect the flow of water. The ski course itself will have no effect on navigation, but its use will. Obviously, it would be difficult for other recreational users of Lake Emma to navigate in the vicinity of the course while it is in use. On the other hand, skiers using the course will navigate in a discrete, predictable pattern. But, if general public use of the ski course becomes intense, a large number of high-powered ski boats could not be expected to confine themselves to the ski course, resulting in some degree of adverse effect on navigation.
As to criterion 4, the project will have no adverse effect on the fish population or marine productivity but will have some adverse effect on fishing. When the ski course is installed, drift fishing and trolling in the area is restricted and fishing of any kind within the course ends with fishing lines tangled in the ski course's underwater lines and pipes. Obviously, the more the ski course is used, the more adverse the effect on fishing in the area. As to recreational values, a permanent ski course obviously will add a recreational option not now continuously available on the lake, and the lake is large enough
to accommodate a ski course with the other type of recreational uses currently in use. But, at the same time, addition of a water ski course, especially one that is used often, will have an adverse effect on the quantity and quality of use that can continue to be made of the existing recreational uses. It is difficult to decide whether a slalom ski course on Lake Emma will enhance or detract from the lake's recreational value. For similar reasons, it cannot be found or concluded that the applicant has provided "reasonable assurance that the project will be clearly in the public interest," as required by Section 403.918(2), Florida Statutes (1985).
RECOMMENDATION
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order denying the application of George A. Roberts for a permit for a permanent slalom water ski course on Lake Emma.
RECOMMENDED this 31st day of July, 1987, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987.
1/ Rulings on the parties' proposed findings of fact can be found in the attached Appendix To Recommended Order, Case Nos. 87-1188 and 87-1253.
2/ The man who sold the Lake Emma property to Roberts testified to having no objection to the course. He has moved to Lawnwood on the east coast of Florida but plans to use the small house now rented to Roberts a retreat cottage. He and his wife, two other couples and two other individuals who reside on the lake also signed a letter saying they have no objection, but the letter states: "The use of the slalom course is intended for Lake Emma and Lake Lucy [the lake immediately to the south of the south channel from Lake Emma] waterfront property owners."
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1188 AND 87-1253
The following rulings on the parties' proposed findings of fact are required by Section 120.59(2), Florida Statutes (1985):
A. Applicant's Proposed Findings of Fact.
5. Rejected as contrary to facts found. As to the first sentence, not proved; as to the rest, recreational use is now made of the entire lake, including the east side.
6.-8. Accepted and incorporated.
1.-4. Accepted and incorporated.
5. Accepted and incorporated except the last clause is irrelevant and unnecessary.
6.-8. Accepted and incorporated.
William G. Law, Jr., Esquire ROBERTS & LAW
Vivian F. Garfein, Esquire Department of Environmental Regulation
Daniel H. Thompson, Esquire General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
