STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILLIP BUCHNER, STAN KRUPSKI, ) and JACK K. AUSTIN, )
)
Petitioners, )
)
vs. ) Case Nos. 02-2940
) 02-2941
MARK GRONLUND and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )
)
Respondents. )
__________________________________)
RECOMMENDED ORDER
On September 27, 2002, final administrative hearing was held in this case in Leesburg, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioners: Stan Krupski, pro se
38545 County Road 44A Post Office Box 685 Umatilla, Florida 32784
Phillip Buchner, pro se 38615 North County Road 44A Umatilla, Florida 32784
For Respondent Department of Environmental Protection:
Craig D. Varn, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
For Respondent Mark Gronlund:
Mark Gronlund, pro se Post Office Box 1476 Umatilla, Florida 32784
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Mark Gronlund, to modify his Standard General Environmental Resource Permit for water ski jump and slalom courses on Lake Blanchester in Lake County, Florida, to increase the size of the jump course and combine it with a new slalom course, so that buoys are shared by the two courses, and to add gate alignment buoys to the existing slalom course.
PRELIMINARY STATEMENT
DEP gave notice of intent to issue the requested modification, and two timely requests for an administrative hearing contesting both the existing permit and the proposed modification were filed by neighbors of Gronlund who reside on Lake Blanchester--one by Phillip Buchner, and a second by Stan Krupski and Jack K. Austin. On July 23, 2002, DEP referred the requests to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge. Buchner's request was given DOAH Case No. 02-2940; the request by Krupski and Austin was given DOAH Case No. 02-2941. The cases
were consolidated and scheduled for final hearing on
September 27, 2002. A Joint Prehearing Statement was filed on September 11, 2002.
On September 25, 2002, Krupski filed a Request for Continuance on behalf of all Petitioners, and Gronlund filed an objection, a telephone hearing was held, and the Request for Continuance was denied.
At final hearing, Gronlund called six witnesses and had Applicant Exhibits 1-7 admitted in evidence. DEP called one witness (DEP Environmental Manager, Tammy Dabu) and had DEP Exhibits 1-4 admitted in evidence. Krupski called one witness (Bobby Grinstead, a fisheries biologist), had Krupski Exhibits 1-5 admitted in evidence, and testified in his own behalf, as did Buchner.
No transcript of the final hearing was requested, and the parties were given until October 7, 2002, to file proposed recommended orders (PROs). DEP timely filed a PRO; Krupski and Buchner filed written argument. The post-hearing submissions have been fully considered, along with the oral argument and evidence presented at final hearing.
FINDINGS OF FACT
Mark Gronlund owns property which includes some lake bottom and shoreline at the southeast corner of Lake
Blanchester in Lake County, Florida. His property also includes a residence on the uplands.
Lake Blanchester is a small, Class III waterbody located in Section 20, Township 18S, Range 27E in Lake County. It is not classified as an Outstanding Florida Water. It is roughly triangular in shape, with angles roughly in the west, southeast, and northeast. The eastern shoreline of the lake appears to be approximately 2400 feet in length; the southern shoreline is longer, about 3200 feet; the northern shoreline is in between, approximately 2800 feet long. The lake bottom is not owned by the State of Florida; instead, it appears to be owned by individual riparian owners around the lake.
Other than Gronlund's courses and proposed courses, there are no other water ski courses on Lake Blanchester. There also are no others under construction, and there was no evidence of any reason to expect other courses in the future.
Existing Permit
On June 21, 2000, DEP issued Gronlund a Standard General Environmental Resource Permit, No. 35-167439-001, to construct a private, single-family use only dock, a boat ramp, and skiing facilities in Lake Blanchester. The permitted skiing facilities consisted of "a 850 feet long by 75 feet 5 1/2 inches wide slalom course and 623 feet long by 74 feet 10 inches wide ski jump course that is equipped with a 24 feet
long by 25 feet wide ski jump ramp. The slalom course will comprise 22 buoys and the ski jump course will comprise 7 buoys. All buoys are 8 inches in diameter and anchored to the bottom of Lake Blanchester with galvanized screws."
The permitted ski slalom course was oriented approximately parallel to the southern shoreline of the lake, at least 350 feet from the shoreline, apparently over and on lake bottom owned by riparian owners along the southern shoreline of the lake. The ski jump course was oriented approximately south-southeast to north-northwest. One end of the jump course was near the southeast corner of the lake, near Gronlund's property, approximately 350 feet from the shoreline; from there, the course angled slightly away from the eastern shoreline of the lake towards the north-northwest, so that the other end of the course was well over 350 feet from the eastern shoreline of the lake. Despite the proximity of the jump course to Gronlund's property, because Gronlund appears to own so little lake bottom, the entire jump course also appears to be located on and over lake bottom owned by his neighbors.
Among other general conditions, the permit limited
Gronlund to implementation of the plans, specifications, and performance criteria approved by the permit; deviations would constitute a violation of the permit. General and special
conditions also required permitted activities to be conducted in a manner so as not to cause violations of state water quality standards. Gronlund also was advised by a general condition of the permit: "This permit does not convey to the permittee or create in the permittee any property right, or any interest in real property, nor does it authorize any entrances upon or activities on property which is not owned or controlled by the permittee, or convey any rights or privileges other than those specified in the permit and chapter 40C-4 or chapter 40C-40, F.A.C."
Permit Violations
After issuance of the permit, DEP received complaints about Gronlund's activities. First, and most significant, it was alleged that Gronlund was clearing most of his shoreline (approximately 500 linear feet) and was placing sand on it without a permit. It also was alleged that his dock structure was larger than permitted and that he added unauthorized buoys to his ski jump and slalom courses.
DEP's investigation of the first complaint confirmed a violation. It appears from the evidence that Gronlund began to take corrective action to restore his disturbed shoreline while DEP was investigating. It also appears from the evidence that DEP's enforcement section ultimately required Gronlund to restore at least part of his shoreline. The
details of DEP's requirements for restoration and Gronlund's performance of restoration requirements are not clear. The testimony presented by Petitioners was that the restoration does not yet match conditions before Gronlund cleared the shoreline. But DEP's witness testified that, according to DEP's enforcement section, Gronlund was in compliance with the terms of the consent agreement entered into to resolve that complaint as of September 19, 2002.1
It does not appear from the evidence that Gronlund's dock itself was oversized. However, it appears that Gronlund included a pole and swing structure that was not included on the permit drawings and might constitute a violation. DEP's witness characterized the issue as a possible enforcement matter.
It is not clear from the evidence when Gronlund began adding buoys to those originally permitted. The first additions probably were for alignment gates for the two existing permitted courses. It appears from the evidence that Gronlund eventually also put in a new slalom course without authorization; it was not clear from the evidence whether this occurred before or after Gronlund applied for permission to do so. It appears that Gronlund subsequently removed most if not all of the unauthorized surface buoys but that the anchors, polypropylene rope, and sub-buoys remain in place.
Permit Modification
On April 2, 2002, Gronlund applied to modify his ski courses, listing himself and his wife as "Owner(s) of Land." First, he applied to add four buoys and 360 feet of length to the east-west slalom course and to modify the angle of the jump course, bringing it closer to the eastern shoreline. Second, he applied to add a slalom course to the north- northwest end of the jump course, for a combined jump/slalom course 1615 feet long by 124 feet wide.
In response to a request for additional information (RAI), Gronlund explained that the change to the east-west slalom course added two gate alignment buoys and 180 feet in length to either end of that course. He also explained that the new slalom course would have the same number of buoys and length but would share some buoys with the combined jump course, reducing the number of additional buoys and length otherwise required for separate jump and slalom courses.
In Gronlund's modification application, the combined jump/slalom course appeared to be less than 250 feet from Gronlund's shoreline and less than 300 feet from some of the shoreline of the riparian owner to Gronlund's immediate north. Petitioner, Buchner, testified that some of the sub-buoys in place at this time actually are only approximately 200 feet from the nearest shoreline. Farther away from Gronlund's
property, the course's angle to the north-northwest and the eastern shoreline's angle to towards the north-northeast combine to separate the course from the shoreline by more than
300 feet. In his response to DEP's RAI, Gronlund gave assurances that both courses would be least 300 feet from all shorelines, except "at the south end of the [proposed combined] ski course and ski jump ramp [which are] located closer to the shoreline, directly adjacent to the applicant's shoreline . . . to avoid placing the ski jump where it could interfere with other boating traffic."
DEP's RAI also asked Gronlund to "provide documentation from other properties [sic] owners with riparian rights to Lake Blanchester, stating no objections to your proposed project." Gronlund's response stated only: "The other property owners with riparian rights to Lake Blanchester that do no object to my proposed project are the same ones that have not issued any complaints in the two years I have been skiing on the lake."
Based on Gronlund's response to DEP's RAI, DEP gave notice of intent to modify Gronlund's permit to allow "62 buoys in Lake Blanchester (26 buoys for the slalom course and
36 buoys in the combined ski/slalom course). These buoys will range in size from 7-9 inches in diameter and will be made of soft, lightweight, plastic. The buoys will be anchored into
Lake Blanchester using galvanized screw attached to polypropylene rope, sub-buoys, and rubber strips. This modification will increase the size of the slalom course from 850 feet long by 75 feet and 5.5 inches wide to 1210 feet long by 75 feet and 5.5 inches wide. This modification would increase the size of the ski-course from 623 feet long by 74 feet and 10 inches wide to accommodate the combined ski/slalom course at 1615 feet long by 124 feet wide."
Permit Challenges
Petitioners not only seek to have DEP deny Gronlund's application for modification, they also want DEP to revoke Gronlund's existing permit for the ski slalom and jump courses. Except for general testimony from Buchner that he was not aware of Gronlund's original permit application and DEP's notice of intent to issue a permit, Petitioners introduced no evidence as to why any challenge to Gronlund's existing permit should not be considered untimely.
Petitioners contended that Gronlund's existing and proposed ski courses themselves interfere with navigation, infringe riparian rights, and are unsightly. There is no contention or evidence that the installation and maintenance of the ski courses themselves cause any significant environmental impacts. However, Petitioners presented evidence in support of their contention that the use of the
ski courses will adversely impact water quality, aquatic vegetation, and fish populations. They also contended that use of the ski courses interferes with navigation and other uses of the lake, causes unsafe conditions, infringes riparian rights, and constitutes a trespass on others' property, including the property of Petitioner, Austin.
The evidence was that the buoys and ski jump ramp themselves are not navigation hazards. The buoys are tethered in position so that they are half in and half out of the water and easily visible to boaters. If a boat were to approach close to one, the bow of the boat would likely push the buoy out of the way. Even if a boat made contact with a buoy, the "collision" probably would not even be noticed by the boater since the buoys are made of soft, lightweight plastic. While the jump ramp could cause damage in a collision with a boat, it is easily visible and should not pose a navigation or safety hazard to other boats.
The ski courses themselves do not impair access to the lake and do not infringe any riparian rights. While they change the view, the buoys are fairly unobtrusive visually, and the ski jump is comparable to a large dock or boat house.
As to Petitioners' contentions regarding the use of the ski courses, it is first noted that all of the alleged impacts are similar to the impacts from skiing on the lake
without a course (or, for that matter, any other similar operation of a similar boat on the lake). One primary difference is that impacts from use of a course would tend to be repetitive and confined to one part of the lake. Another difference is that, at least for the slalom courses, the tow boat usually accelerates from a stop and decelerates to a stop at the beginning and end of end run down the length of the course. (It was not clear from the evidence whether the jump course is used in the same manner.)
Petitioners accused Gronlund of dominating Lake Blanchester, causing a hazard to navigation, and infringing riparian rights by his use of the existing and proposed ski courses. Petitioners also accused Gronlund of exacerbating these problems by operating his ski boat in a reckless manner, often illegally without a spotter.
Gronlund put on ample evidence that he operates his boat in a safe and considerate manner. When there is no spotter in the boat, the driver utilizes a wide-view mirror to maintain eye contact with the skier, as allowed by law. When possible, Gronlund alerts other boaters on the lake of his intention to use the course and attempts to obtain the other boaters' agreement that Gronlund's skiing will not endanger or interfere with the other boat. Sometimes, Gronlund will
choose a course he thinks will not conflict with the other boaters.
It appears that most of the boating conflicts on the lake to date have been the result of misunderstandings. First, it appears that some other boaters view all slalom skiing and ski jumping as inherently reckless regardless whether standard safety protocols are being used. Secondly, it appears that boaters sometimes miscommunicate or misinterpret intentions. This type of problem once led Petitioner, Buchner, to erroneously believe that Gronlund's boat was intentionally moving into the way of Buchner's small boat, while the operator of Gronlund's boat thought Buchner was intentionally moving into the way of Gronlund's boat.
Third, it appears that Gronlund sometimes thinks other boaters are far enough away not to be disturbed by skiing when the other boater thinks the skiing is still to close. Finally, Gronlund has allowed a neighbor to use Gronlund's boat ramp on occasion, and it is possible that boaters on the lake have mistaken the other boat for Gronlund.
Obviously, as a practical matter, when Gronlund's ski courses are in use, no one else can use the part of the lake being used for skiing. But this kind of preemption of part of the lake, which is inherent in any ski course and
boating in general, does not constitute a navigation hazard or an infringement of riparian rights to access to the lake.
Petitioners complained of the noise level generated by Gronlund's use of his ski courses. Gronlund responded with evidence that his boat, a 1997 Ski Nautique, is well-muffled. The decibel level generated when this type boat passes by at a distance of 25 feet is between the decibel level of normal conversation and the decibel level next to a busy street; when this type ski boat accelerates away from a location, by the time it is 100 feet away, the decibel level at the starting location already would be lower than normal conversation.
Turbulence created by a boat's propeller can cause prop scouring and turbidity, which can adversely impact water quality and fish populations, if the water is shallow enough. But the evidence was that these problems would not be expected in water four or more feet deep. Gronlund reported to DEP that the water in the vicinity of his existing and proposed ski courses ranges from approximately 16-22 feet deep. While Petitioners questioned the accuracy of those reported depths, it appears from the evidence that the water in the vicinity of the ski courses is at least nine feet deep. No prop scouring or turbidity should result from use of the courses.
Usually, the impact of waves from a boat's wake would not be expected to create much environmental impact,
even when the waves reach shallow water. Their impact would not differ much from naturally wind-driven waves. But wind- driven waves depend on wind strength and direction, and the possibility of significant additional turbidity and even erosion from constant waves generated by a ski boat going back and forth on a ski course cannot be completely disregarded, especially if the course is used a lot.
In addition to how often a ski course is used, the impact of wake-generated waves would depend on several other factors as well, including: the size of the wake-generated waves; the proximity of the shallow water; slope of the bottom; the composition of the bottom substrate; and the amount of vegetation present to absorb and attenuate wave energy.
Addressing the first factor, a well-designed ski boat such as Gronlund's minimizes the size of the wake. At competition-level slalom speed--approximately 34 miles per hour--the wake directed back towards the skier from Gronlund's boat would be only approximately 3-4 1/2 inches high. (Exact measurement is difficult, but tests of an open-bowed 1995 model Ski Nautique indicated wakes of 4.7 inches at slalom speed. The wake from Gronlund's newer 1997 model, which appears to be closed-bow, would be expected to be lower than that.) A relatively small wake also would be expected at high
ski-jumping speed. A larger wake would be generated at the lower speeds skied by younger and less-skilled skiers. Trick skiing also is done at lower speeds, but trick skiing does not occur on a marked course and is not relevant to a permit for a slalom or jump course. But even at lower speeds, the wake directed back towards the skier still would not be extremely high--certainly not as high as 2 1/2 to 3 feet.
Petitioners contend that the bow of Gronlund's ski boat throws a larger wake off to the side which is higher than the wake measured behind the boat where the skiing takes place. But the videotape placed in evidence by Gronlund does not support this contention. There does not appear to be any additional wake forward of the wake involved in slalom skiing.
The largest wakes are generated during acceleration (before the boat planes off) and deceleration (after it comes off its plane). In slalom skiing at least, the course normally is used repeatedly in alternating directions, with a stop between runs.2 As a result, the ski boat accelerates at the beginning and decelerates at the end of each run down the length of the course. But even then, it does not appear from the videotape that the wake generated at those times is very large or that it remain larger for very long.
Addressing the other factors, the closest shallow water to the existing and proposed ski courses would be the
nearest shoreline of Lake Blanchester. Based on the evidence, much of the lake bottom near the shoreline is relatively silty (except where Gronlund placed sand on his property), which increases the likelihood of erosion and turbidity. But the slope of the shoreline bottom is relatively gentle; and there is considerable vegetation (including maiden cane, native rushes, and spatterdock) along the eastern shore of Lake Blanchester (again, except where Gronlund cleared his shoreline), and the vegetation along the southern shoreline of the lake is even denser, reducing the likelihood of erosion and turbidity.
Krupski's witness, Bobby Grinstead, who is a fisheries biologist, testified that Lake Blanchester is a "perched lake" which is high in acidity and low in nutrients, making its shoreline relatively fragile. It was his opinion that adverse impacts on aquatic flora and fauna (primarily, fish) can be expected from use of Gronlund's ski courses. But DEP's witness, who has had considerable experience reviewing similar applications, disagreed; instead, she supported the testimony of Gronlund's witness, based on a literature review, that no adverse environmental impacts should be expected from use of Gronlund's course. Based on all of the evidence, it is found that Gronlund gave reasonable assurances that his existing and proposed ski courses will not result in
significant adverse impacts to water quality, aquatic vegetation, or fish populations.
As found, Gronlund gave reasonable assurance that his proposed ski courses will not adversely impact navigation, public safety, or riparian rights of neighbors. However, as noted, the courses are placed on and over lake bottom owned by persons other than Gronlund. It is not clear that Gronlund has the permission of these owners to put his courses on their property. At least one of these owners--namely, Petitioner, Austin--clearly objects.
Need for Additional Condition
To address some of Petitioners' concerns, Gronlund presented evidence that he actually has spent relatively little time skiing on the lake--approximately 300 engine hours, including engine warm-up time, time to the course, time picking up skiers (after each trip down the course), and time returning to the dock), in two and one-half years. Gronlund's evidence also refuted Petitioners' contention that Gronlund is operating a ski school out of his house--to date, Gronlund has used the facilities by himself, with a ski partner, and with his immediate family. Gronlund's purpose in presenting this evidence was to assure Petitioners and DEP that he plans to continue to use his courses in a similar manner.
Gronlund also devoted a great deal of his presentation to evidence of how important it is to the continued success of competitive skiing, as well as the ski industry as a whole, in this country, for his application (and others like his) to be granted. His evidence emphasized the world water skiing championships being held in Lake County in 2003, and their expected contribution to the local economy. Those aspects of Gronlund's presentation raised some question as to the reliability of Gronlund's assurances that his relatively elaborate proposed ski facilities will only be for personal use in the future. To allay these concerns, and to assure that the ski courses are operated as represented by Gronlund, an additional permit condition to that effect would be appropriate.
CONCLUSIONS OF LAW
The evidence was that Petitioners' challenges to Gronlund's existing permit were untimely. In addition, Petitioners do not have standing to initiate a proceeding to revoke an existing permit. Only DEP has such standing. See Friends of the Robert Crown Wilderness Area, Inc., v. Dept. of Environmental Reg., OGC Case No. 89-0068, 1989 WL 197902 (DER 1989), aff'd, 558 So. 2d 20 (Fla. 1st DCA 1990). As a result, Petitioners' challenges must be limited to the modification application.
Sections 403.087(1) and 373.413, Florida Statutes, and the pertinent administrative rules, required Gronlund to obtain a permit for his water ski jump and slalom courses. Florida Administrative Code Rule 62-312.815 grants a general permit for ski jumps and slalom courses, but Gronlund does not seek to use this general permit. For one thing, the general permit cannot be used under Rule 62-312.815(1)(c) because part of the proposed combined jump/slalom course is not "placed at least three hundred (300) feet from any shoreline that is not under the ownership or control of the permittee . . . ." For another, the general permit also was not utilized for the existing permit (although the existing ski courses appear to have been placed arguably at least 300 feet from "any shoreline" not owned or controlled by Gronlund). Instead, the existing ski jump and slalom courses were included in Gronlund's Standard General Environmental Resource Permit, No. 35-167439-001, which also included Gronlund's private, single- family use dock and boat ramp, and his proposed ski courses were processed as a modification of the existing Standard General Environmental Resource Permit--apparently as a major modification under Florida Administrative Code Rule 62- 343.100(1)(b).
DEP only cited two statutes and one rule in its PRO.
(Krupski cited one in post-hearing argument, and no other
party cited any.) But it actually appears necessary to follow a complicated maze of administrative rules to ascertain the applicable law in this case.
Since Gronlund's Standard General Permit was required in part by Section 373.413, Florida Statutes, most of Parts I and III of DEP's Florida Administrative Code Rule Chapter 62-4 do not apply. See Florida Administrative Code Rules 62-4.001 and 62-4.510. Instead, certain rules of the St. Johns River Water Management District, including those cited infra, are adopted by reference for use in this case in conjunction with applicable DEP rules.
Since Gronlund was issued a standard general permit, Florida Administrative Code Rule 40C-40.302 might apply.3
This rule states: "To qualify for a standard permit under this chapter, the permittee must give reasonable assurances that the surface water management system meets subsection (1) and all of the threshold conditions of subsection (2)." But Gronlund's proposed ski courses is not a surface water management system. In addition, by its terms, Section (1) of the Rule applies to surface water management systems; and the threshold conditions in subsection (2) do not seem at all applicable to ski jump and slalom courses. However, while referring to conditions that must be met by a surface water management system, subsection (1) references the conditions
for issuance specified in Florida Administrative Code Rules 40C-4.301 and 40C-4.302, some of which appear to be applicable to a ski jump and slalom course.
Pertinent to this case, Rule 40C-4.301 requires applicants for "a standard individual, or conceptual approval permit under this chapter or Chapter 40C-40" to provide reasonable assurance that a surface water management system:
Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
Will not adversely affect the quality of receiving waters such that the water qualify standards set for the in Chapters 62-3, 62-4, 62-302, 62-520, 62-522, and 62- 550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;
Will not cause adverse secondary
impacts to the water resources; . . . .
Since Gronlund's proposed ski courses do not appear to constitute a "surface water management system," these rules may not apply. If they do, it is clear from the evidence that there will be no adverse impacts under Subsections (1)(d)-(e) from the installation and maintenance of the ski courses in Class III waters; the only possible consideration would be secondary impacts under Subsection (1)(f).
"Secondary impacts are impacts caused not by the construction of the project itself but by 'other relevant activities very closely linked or causally related to the construction of the project.' See Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So. 2d 772, 777 (Fla. 1st DCA 1991); Florida Power Corp., Inc. v. Department of Environmental Regulation, 605 So. 2d 149, 152 (Fla. 1st DCA 1992)." Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140, 1142 fn.3 (Fla. 2d DCA 1998).
The possible secondary impacts from Gronlund's proposed ski courses include impacts on water quality and fish populations from waves generated by boat wakes, impacts on navigation, impacts on safety, noise impacts, and the impact of preemption of part of the lake when the course is in use. But, as found, most of these possible impacts differ little from impacts from skiing on the lake without a course (or, for that matter, any other similar operation of a similar boat on the lake). In addition, Gronlund gave reasonable assurances that there will be no adverse secondary impacts from his use of the proposed ski courses.
Rule 40C-4.302 states in pertinent part:
In addition to the conditions set forth in Rule 40C-4.301, F.A.C., in order to obtain a standard individual, or conceptual approval permit under this chapter or Chapter 40C-40, F.A.C., an applicant must provide reasonable assurance
that the construction, alteration, operation, maintenance, removal, and abandonment of a system:
located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 12.2.3 through 12.2.3.7 of the Applicant's Handbook: Management and Storage of Surface Waters:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, FRS.; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 12.2.8 through 12.2.8.2 of the Applicant's Handbook: Management and Storage of Surface Waters adopted by reference in Rule 40C- 4.091, F.A.C.
There is no language in this rule that would limit its application to surface water management systems, and it presumably would apply to Gronlund's proposed ski courses. In addition, the assurance required under Subsection (1)(a) of this rule essentially mirrors the assurance required under Section 373.414(1)(a), Florida Statutes--namely, in this case, reasonable assurance that the "activity regulated" is not contrary to the public interest.
If the "activity regulated" was considered to be just the construction and maintenance of the ski facilities, it would be relatively easy to decide that Gronlund's modification application would not be contrary to the public interest. Actual construction and maintenance has very little environmental impact. But DEP's predecessor agency has held:
applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So. 2d 523
(Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the
project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America
v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989).
Sarasota County, et al. v. Dept. of Environmental Reg., et al., DOAH Case No. 90-3533, OGC File No. 90-0857, 1991 WL
161053, at *10 (DER Final Order 1991). See also Florida Power Corporation v. Dept. of Environmental Reg., et al., DOAH Case No. 91-2148, OGC File No. 90-1520, 1992 WL 279020, at *15 (DER
Final Order 1992). For this reason, secondary and cumulative impacts must be considered as part of the regulated activity in applying the public interest test.
Secondary impacts already have been addressed in Conclusions 43-44, supra. "Cumulative impacts analysis involves consideration of 'the cumulative impacts of projects which are existing, under construction or reasonably expected in the future" upon surface waters and wetlands. See, e.g., Florida Power Corp. v. Dep't of Envtl. Regulation, 638 So. 2d
545 (Fla. 1st DCA 1994), rev. denied, 650 So. 2d 989 (Fla.
1994)." Sierra Club v. St. Johns River Water Management District, 816 So. 2d 687 (Fla. 5th DCA 2002). In this case, there are no other ski jump or slalom courses existing on Lake Blanchester, under construction, or reasonably expected in the
future. Petitioners' cumulative impact arguments are speculative.
Based on the facts of this case, and balancing the factors listed in Section 373.414(1)(a), Florida Statutes, and in Florida Administrative Code Rule 40C-4.302(1), Gronlund's evidence was sufficient to provide reasonable assurance that his proposed ski courses will not be contrary to the public interest.
As mentioned, this is not a proceeding to determine whether Gronlund should be allowed to use the general permit for ski jumps and slalom courses granted by Florida Administrative Code Rule 62-312.815. But the requirements for use of the general permit are instructive as to what kind of ski jump and slalom courses would be likely to meet the criteria for issuance of a standard general environmental resource permit for these facilities. As already noted in Conclusion 38, supra, Gronlund would not meet the criterion set out in Rule 62-312.815(1)(c). But his proposed ski courses would meet the other criteria for use of the general permit. Otherwise, as found, the proposed modification would not create a navigational hazard or interfere with public use of waters of the state (other than the obvious preemptive use of the waters of the courses while being skied). Also, as
found, no riparian rights (as opposed to other property rights) would be infringed.
As to other property rights, no applicable statute or rule explicitly requires Gronlund to demonstrate ownership or control of the lake bottom on and over which he intends to place his proposed ski courses. Instead, as found, Gronlund's permit conditions are explicit that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Gronlund. See Finding 6, supra. See also Florida Administrative Code Rule 62-343.020(5). Contrast, e.g., Florida Administrative Code Rules 40D-4.101(2) and 40D-1.6105(1). Contrast also Brown v. Winter Haven Ski Club and Dept. of Environmental Reg., DOAH Case No. 82-988, OGC Case 82-0228, 1983 WL 36417, at *2 (DER Final Order 1983)(where Rule 17-1.122(15) required an applicant to execute an "affidavit of ownership or control," which was not done, and DER adopted a Recommended Order to deny a permit for a ski jump and slalom course, stating it "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property"). For these reasons, it appears that Gronlund's permit modification can be granted without a showing of ownership or control, leaving those issues to a state circuit
court in an action in trespass or some other action involving title and boundaries of real property under Section 26.012(2), Florida Statutes.
Rule 40C-4.302 states in pertinent part:
When determining whether a permit applicant has provided reasonable assurances that District permitting standards will be met, the District shall take into consideration the applicant's violation of any Department rules adopted pursuant to sections 403.91 -- 403.929, F.S. (1984 Supp.), as amended, which the District had the responsibility to enforce pursuant to delegation, or any District rules adopted pursuant to Part IV, Chapter 373, F.S., relating to any other project or activity and efforts taken by the applicant to resolve these violations. . . ..
As found, Gronlund was found to have provided the necessary reasonable assurances after consideration of the pertinent enforcement matters and Gronlund's efforts to resolve them.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application for modification of Standard General Environmental Resource Permit, No. 35-167439-001, with the additional condition that the permitted ski jump and slalom courses will be for personal use only, and will not be used for a ski school or for organized ski tournaments.
DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida.
___________________________________
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
ENDNOTES
1/ Petitioner, Buchner, testified that approximately 92 feet of Gronlund's shoreline remained sandy beach at the time of final hearing. It is not clear from the evidence whether the consent agreement complied with Section 369.20, Florida Statutes, which requires a permit to remove "herbaceous aquatic plants and semiwoody herbaceous plants, such as shrub species and willow" except "within an area delimited by up to
50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water."
2/ See Endnote 1, supra.
3/ According to Rule 40C-40.011, these rules apply to systems which have been determined to be not harmful to the water resources of the water management district and not inconsistent with its objectives.
COPIES FURNISHED:
Stan Krupski Jack Austin
38545 County Road 44A Post Office Box 685 Umatilla, Florida 32784
Phillip Buchner
38615 North County Road 44A Umatilla, Florida 32784
Mark Gronlund
Post Office Box 1476 Umatilla, Florida 32784
Craig D. Varn, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
David B. Struhs, Secretary
Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Kathy C. Carter, Agency Clerk Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 18, 2002 | Agency Final Order | |
| Nov. 13, 2002 | Recommended Order | Applicant to modify water ski jump and slalom courses in general standard permit gave the necessary reasonable assurance, subject to a condition for personal use only. |
