STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST A. MARSHALL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2210

) 80-175

DEPARTMENT OF ENVIRONMENTAL ) REGULATION and HORSESHOE COVE ) RESORT, INC., H.C. GREEN and ) JOSEPH F. GARROTT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on August 26, 27 and 28, 1980, in the Manatee County Courthouse, Bradenton, Florida. The issues for determination at the hearing were whether the respondents Horseshoe Cove Resort, Inc., H.C. Green and Joseph F. Garrott are entitled to permits to construct nine stormwater outfall pipes and three culverts, to realign an existing drainage ditch (Case No. 79-2210) and to construct approximately 14,000 square feet of walkways, bridges and docks. (Case No. 80-175).

APPEARANCES

For Petitioner: Ernest S. Marshall

615 9th Street West Bradenton, Florida 33505

For Respondent David M. Levin and (DER): H. Ray Allen

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

For Respondents: I. W. Whitesell

Wood, Whitesell and Karp, P.A. 3100 South Tamiami Trail Sarasota, Florida 33579

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage

   ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license.

   
   

2. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading.

   
   

3. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators.

   
   

4. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels.

   
   

5. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level.

   
   

6. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site.

7. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus.

   
   

8. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters.

   
   

9. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.

   
   

   CONCLUSIONS OF LAW

   
   

10. The applicants in this proceeding have adequately demonstrated that the proposed projects will not result in harmful obstructions to or alteration of the natural flow of navigable water and will not result in harmful or increased erosion, shoaling of channels or the creation of stagnant areas of water. It has been demonstrated that the proposed projects will not interfere with fish, marine, wildlife and other natural resources to such an extent as to be contrary to the public interest. While there will be a short-term localized effect upon grass flats and marine soils during construction, such effect will be minimized by the use of turbidity screens and construction mats.

    Furthermore, the applicants have agreed to replace any vegetation destroyed during construction. Thus, the adverse effects from construction will not be to such an extent as to be contrary to the public interest. The applicants have given reasonable assurances that the proposed project will not result in short- term or long-term violations of water quality standards.

    
    

11. The concerns raised by petitioner in these proceedings regarding pollution of the waters and the elimination of marine habitats, fish and wildlife have been demonstrated to be without foundation. The petitioner has failed to illustrate that he will suffer material injury or monetary damage as a result of the proposed project.

    
    

12. Completion of the proposed projects in compliance with the conditions listed in the notice of intent to issue the permits will result in insignificant and minimal adverse effects. In conclusion, it is found that the applicants are

entitled to permits for the proposed construction pursuant to Chapters 253 and

403 of the Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that:

1. the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED;

   
   

2. the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted.

   
   

3. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and

4. the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in

Tallahassee, Florida.

DIANE E. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980.

COPIES FURNISHED:

Ernest S. Marshall 625 9th Street West

Bradenton, Florida 33505

David M. Levin and

1. Ray Allen

   Department of Environmental Regulation

   Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

   
   

2. W. Whitesell

Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579

Honorable Jacob Varn Secretary, Department of

Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-002210

Orders for Case No: 79-002210