STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY L. AND BURWELL C. HARRISON, ) THE LAKE IRMA ASSOCIATION AND ) CARL B. HATCHELL, )

)

Petitioner, )

and )

)

JESSE G. BAGWELL, JR., )

AND RICHARD E. THOMPSON, ) CASE NO. 79-2307

)

Intervenors, )

)

vs. )

) EDWINE K. CROWLEY and DEPARTMENT ) OF ENVIROMENTAL REGULATION, )

)

Respondents, )

)

RECOMMENDED ORDER

This matter cane on for hearing in Orlando, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 11, 1980. At the hearing, Mr. and Mrs. Durwell C. Harrison, and Mr. Carl B. Hatchell appeared pro se. Jesse G. Bagwell, Jr., sought to appear on behalf of the Lake Irma Association (Association) . On the authority of The Florida Bar v. Edward P Moses, No. 53,305 (Fla., Jan 17, 1980), the hearing officer declined to allow Mr. Bagwell, who is not a lawyer, to represent the Association. All members of the Association present at the final hearing, however, were given an opportunity to intervene in the proceedings, an opportunity of which Messrs. Thomson and Bagwell availed themselves. Mr.

Bagwell was allowed to intervene in his own right at the hearing, and was explicitly authorized to offer, in that capacity, all matters which he had intended to present on behalf of the Association. Respondents appeared through counsel.

Sam Charles Meiner, Esquire

26 Wall Street

Orlando, Florida 32801

For Respondent Edwine K. Crowley

Stanley J. Niego, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent Department of Environmental Regulation.

By application filed with the St. Johns River Water Management District on August 1, 1979, respondent Crowley seeks a permit to construct a water ski slalom course in a portion of Lake Irma. In support of the application, an affidavit of ownership or control, executed by Mr. Crowley, was submitted.

After respondent Department of Environmental Regulation (DER) issued its notice of intent to issue respondent Crowley a construction permit, owners of property fronting on Lake Irma and an unincorporated association of lake front property owners petitioned for a formal administrative hearing on the alleged grounds that construction of the slalom course and/or the intended use of the course would affect water quality adversely, would erode the lake shore, would create a safety hazard, would result in a large portion of the lake being used by one or two lakefront property owners, and would be very noisy.

FINDINGS OF FACT

1. For approximately a year and a half, respondent Crowley and his family have lived on Lake Irma, which lies in Orange County, Florida, and has a surface area of approximately 122 acres. Respondent Crowley is an avid water skier, as are his two sons, the younger of whom, Michael, is a Florida state slalom skiing champion. Mr. Crowley owns lot 168, Barber East, 1507 T. C. U. Boulevard, in Orlando, which has 85 feet of frontage on Lake Irma. The Crowleys have a Ski Nautique motor boat powered by a 255 horsepower engine equipped with a muffler system. The engine discharges exhaust into the air above the water's surface.

   
   

2. Even though there is no public access to Lake Irma, there is a lot of boat traffic on the lake. Some ten other families who live on Lake Irma also water ski. A majority of the boats on Lake Irma have engines rated at less than

   100 horsepower. The Crowleys are not the only family living on Lake Irma who owns a Ski Nautique, however, nor is their boat the noisiest on the lake. Mr. Bagwell, president of the Lake Irma Association, owns two ski boats. One has a

   60 horsepower engine, and the other has a 100 horsepower engine. His next door neighbor has a boat with a 55 horsepower engine and another neighbor has a boat powered by an 85 horsepower engine. There is no commercial boating on the lake, however.

   
   

3. Skiing over the deeper portions of Lake Irma does not affect the bottom directly underneath. The wake thrown by ski boats, however, causes waves to wash up on shore up to 100 yards away, with the result that sand becomes suspended in the water. Another consequence of the use of these boats is that oil and gas are introduced into the lake water.

   
   

4. Respondent Crowley's testimony to the effect that the Crowleys and their friend, Mr. Terry, would spend no more time skiing on Lake Irma if the ski slalom course should be built, than they spend skiing on Lake Irma at present, went unrebutted. Respondent Crowley plans to try to ski through the slalom course at 30 miles per hour. The fastest speed contemplated for skiing the course is 36 miles per hour. Slalom skiing is particularly demanding and no one person could expect to ski the course for more than twenty minutes or so, without taking a long rest.

   
   

5. At present, Mr. Crowley, his two sons, and Mr. Terry, regularly use the boat for water skiing on Lake Irma. Sometimes they ski in the same pattern over and over again. The Crowleys' boat pulls barefoot skiers at speeds of 32 to 36 miles per hour. These skiers throw a wake comparable to the wake slalom skiers throw. When he is "trick" skiing, Michael is pulled at only 17 or 18 miles per hour, but the resulting wake is larger than the wake slalom skiing creates. While Mr. Crowley belonged, at the time of the hearing, to two ski clubs (and a national skiing association) , he had never invited any other boat owner to launch his boat onto Lake Irma from the Crowley property, and had no intention of ever doing so.

6. The proposed slalom course would consist of a permanent underwater apparatus and 22 removable buoys with diameters of 16 to 21 inches. Attached to each buoy would be a three to five foot length of line fitted with a snap device at the free end. Before slalom skiing sessions, the free ends would be snapped onto the permanent installation so that the buoys would float on the lake surface; after each session they would be removed.

   
   

7. The permanent installation contemplates setting 22 screw anchors into the lake bottom. Lines would be tied to the anchors. Styrofoam blocks 10 inches by 10 inches by 14 inches would keep these permanent lines suspended vertically with their free ends three to five feet below the surface of the lake, depending on fluctuations in the water level. The free ends would be equipped with snap devices to which the buoy painters could be fastened.

   Neither setting the anchors nor fastening and unfastening the removable parts of the gear would create any measurable pollution.

   
   

8. Respondent Crowley proposes to construct the slalom course along a portion of the southern shore of Lake Irma, a considerable distance from his home. As proposed, the slalom course would cover an area 285 yards by 25 yards. Respondent Crowley has no proprietary interest in the bottom underneath. He testified that he chose the location for the slalom course with a view towards safety and in the hope of minimizing adverse impacts on lakefront dwellers.

   Land along the edge of thelake near the slalom course site is relatively undeveloped. Because of the shape of the lake, there are two "blind corners" for skiers, both of which the proposed site would avoid. In choosing the site, respondent Crowley also considered a canal which opens onto the lake, and sought to avoid interfering with boat traffic using the canal.

   
   

9. The average draft for the boats on Lake Irma powered by outboard motors is about one and one half feet. People might foul their fishing lines on the submerged styrofoam blocks.

   
   

10. Along the shore nearest the proposed site is a littoral botanical community in which marsh grasses and cattails predominate. Cattails and the tuber root system of the marsh grass have a good ability to dampen wave action and hinder erosion. Directly underneath the proposed site, which is 125 feet off shore, the lake is 14 to 17 feet deep. The bottom is mostly sandy with silt and fine mud covering portions of the bottom. Because sunlight does not penetrate to that depth, benthic vegetation is not present.

1. In the past, DER has followed the practice, when permitting docks, of requiring that they be built waterward of the applicant's upland lot and not in front of some other lot

   
   

2. DER's proposed findings of fact have been considered in preparation of the foregoing findings of fact. They have all been adopted, in substance, insofar as material.

   
   

   CONCLUSIONS OF LAW

   
   

3. A ski slalom course is a "stationary installation" within the meaning of Section 403.037(1), Florida Statutes (1977), for construction of which a permit is required. An applicant for a construction permit must provide "the Department with reasonable assurance 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 standards, rules or regulations." Rule 17-4.071, Florida

   Administrative Code. The question here is whether DER has reasonable assurance that water pollution in violation of the standards specified in Chapter 17-3, Florida Administrative Code, will not occur, if the slalom course is built and used as planned for water skiing. Similarly, in a road construction complex air source permit case, DER must consider how much pollution will be emitted by the automobiles which may reasonably be expected to travel the road. J. W. C. Company, Inc. v. Department of Environmental Regulation and Department of Transportation DOAH Case No. 76-832 (Final Order entered January 14, 1979) The evidence adduced by the applicant established, in the present case, that construction of the slalom course would not increase water pollution above what can reasonably be anticipated even without construction of slalom course.

   Actually installing the anchors, lines, floats and buoys poses no threat to water quality. The evidence showed that skiing the course will result in no more water pollution than skiing which would take place on Lake Irma without a slalom course. This is not a case where a new pollution source would add even imperceptibly to pollution that would otherwise occur. This is the rare case when a "new" source would only result in the same "old" pollution, pollution which would otherwise have resulted anyway. DER has reasonable assurance, therefore, that Chapter 17-3, Florida Administrative Code, would not be violated.

   
   

4. But the slalom course is proposed to be constructed on a portion of the lake bottom. By statute, DER is forbidden to "issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state...until the applicant for such permit...shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to [DER]." Section 253.77, Florida Statutes (1979). Perhaps as a means of ensuring that this statutory prohibition is observed, DRR routinely inquires into the ownership of submerged lands when work on such property is sought to be permitted. Whether or not the water body is navigable, DER has regularly limited permits to projects immediately waterward of upland owned by the applicants. This was proven as a matter of fact at the hearing and might be inferred as a matter of law from the affidavit of ownership or control, which has been promulgated as a form, as part of Rule 17-1.22(15), Florida Administrative Code. This affidavit recites that the applicant owns or otherwise controls "all the property that is contiguous to and landward of the area in which the work proposed in the permit application is to be conducted." Rule 17-1.122(15) 2X74, Florida Administrative Code. Although he executed such an affidavit, the evidence as a whole demonstrated that respondent Crowley did not have ownership of or legal control over the portion of the lake bottom proposed to be used for the ski slalom course. Respondent Crowley's ownership of an bauxite lot fronting on Lake Irma may give him rights to reasonable use of the entire lake waters, whether or not Lake Irma is navigable, Florio v. State, 119 So.2d 305, 310 (Fla. 2d DCA 1960); Duval v. Thomas, 114 So.2d 791 (Fla. 1959), but he has no ownership interest in the lake bottom with the possible exception of what may have been conveyed to him by deed.

   
   

5. Neither noise nor erosion are relevant concerns in permitting cases of this kind. The effect on navigation becomes pertinent only when construction in navigable waters is contemplated. It is not necessary, in the present case, to reach the question whether Lake Irma is a navigable body of water.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED

That respondent DER deny respondent Crowley's application for a construction permit.

DONE and ENTERED this 24th day of April, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Sam Charles Meiner, Esq. Mr. Richard F. Thomson

26 Wall Street R.R. 1, Box 130 Orlando, Florida 32801 Maitland, Florida 32751

Stanley J. Niego, Esquire Mr. & Mrs. Burwell C. Harrison Department of Environmental Route 1, Box 128

Regulation Matiland, Florida 32751 2600 Blair Stone Road

Tallahassee, Florida 32301

Mr. Carl B. Hatchell Post Office Box 4201

Winter Park, Florida 32793

Mr. Jesse G. Bagwell, Jr. Route 1, Box 126A Maitland, Florida 32751

Docket for Case No: 79-002307

Orders for Case No: 79-002307