Item 1 Final Rule Repeal Adoption/Chapter 18-8, F.A.C.
REQUEST: Consideration of the adoption of the final rule repeal for chapter 18-8, F.A.C.
APPLICANT: Department of Environmental Protection (DEP)
STAFF REMARKS: In 1999 the Florida Legislature enacted sections 259.105 and 259.1051, F.S., which established a new land acquisition program in the State of Florida known as "Florida Forever." These sections replaced the former Conservation and Recreation Lands (CARL) and Preservation 2000 programs for land acquisition. Under section 259.105, F.S., the Board of Trustees was required to adopt rules for acquisition of state conservation lands under the new program. The Board of Trustees adopted chapter 18-24, F.A.C., on July 17, 2001, to provide for acquisition of such lands. Chapter 18-8, F.A.C., the rule for acquisition under the old programs, is now obsolete.
Chapter 18-8, F.A.C., was noticed for repeal in the Florida Administrative Weekly on March 8, 2002. No public comments were received and no hearings were requested or held. The notice of repeal was submitted to the Joint Administrative Procedure Committee and the Office of Tourism, Trade and Economic Development for their review on March 12, 2002. Neither agency submitted any comments on the proposed repeal.
The Board of Trustees has not delegated authority to DEP to adopt or repeal Board of Trustees' rules. The Board of Trustees' deadline for adoption of this rule repeal under chapter 120, F.S., is June 6, 2002, or 45 days after the Board of Trustees' hearing and action on this item, whichever comes last.
(See Attachment 1, Pages 1-14)
Item 2 Tolbert Easement/Blackwater River State Forest
REQUEST: Consideration of a request for a non-exclusive, 30-foot-wide (2.13-acre, more or less) private access and utility services easement to Ricky Tolbert over state-owned land in Santa Rosa County within the boundary of Blackwater River State Forest.
APPLICANT: Ricky Tolbert
LOCATION: Section 27, Township 05 North, Range 26 West
Mr. Ricky Tolbert owns about 40 acres within the boundary of Blackwater
River State Forest on which he and his wife plan to build a residence.
He acquired the property on February 21, 2001. Mr. Tolbert has applied
for an access and utility services easement because he has no legal access
to his property which is surrounded on all sides by state-owned land.
In order to reach his property from the nearest public road, Mr. Tolbert
proposes using an existing graded road and two-track trail extending 1,810
feet northward and 1,085 feet eastward, respectively, to within 194 feet
of his property. The remaining distance will be crossed via a trail Mr.
Tolbert will cut through the intervening timberland. As
Item 2, cont.
surveyed, the 2.13-acre easement would extend along the centerline of the road and trails. Overhead utility lines will be strung along the entire extent of the easement to provide service to the Tolbert's residence. The road and two-track trail are maintained by the Department of Agriculture and Consumer Services, Division of Forestry (DOF), in connection with its management of Blackwater River State Forest under Board of Trustees' Lease Number 3686. The Board of Trustees hold title to the existing road and trail in fee simple. Mr. Tolbert will be solely responsible for maintaining the remaining 194-foot trail. Although the state forest road and trail are open to the public, they are not considered "public" roads by banks, and mortgage and utility companies because they are not dedicated to Santa Rosa County. Because of this, Mr. Tolbert, who intends to apply for a loan to build his residence, has applied for a recordable easement as a means of documenting his legal access to the property.
Mr. Tolbert qualifies under Florida law for a statutory way of necessity. Section 704.01(2), F.S., provides that a statutory way of necessity exists when land outside municipal boundarìes, used as a dwelling, or for agricultural, timbering or stock raising purposes, is shut off so that no practicable route of ingress or egress to the nearest public or private road exists. In such cases, the shut off landowner may lawfully use, with or without an easement, lands lying between the shut off property and the nearest public or private road for access and utility services. DOF supports the request for the 30-foot-wide easement provided that: (1) the easement runs along the centerline of the state forest road; (2) the road remains open to public access by issuance of a nonexclusive easement; (3) the applicant understands that the road is maintained to DOF standards and any additional improvements are borne by the applicant; and (4) no exotic species are introduced with fill material used to maintain the easement. The proposed easement runs through an overstory of scattered longleaf pine, with longleaf pine saplings and turkey oaks in the midstory, and wiregrass ground cover. The land was donated to the state by the federal government in 1955 for use as a state forest. As such, it is considered natural resource (conservation) land. Easements proposed for such land normally are subject to the Board of Trustees' Incompatible Use Policy (IUP). Except for the cutting of several saplings, DOF expects the main impact of the easement to be branch trimming. Mr. Tolbert has agreed to a DOF request that he provide a 20-foot long, 24-inch culvert with mitred ends as a net positive benefit to the state forest under the IUP. The culvert will be used at another location within Blackwater River State Forest. This request was not referred to the Acquisition and Restoration Council (ARC) in view of ARC'S policy of not considering easement requests with respect to the IUP when applicants qualify under section 704.01, F.S., and there are no mitigating or complicating circumstances.
The easement was valued at $2000. The appraisal was reviewed and approved by a staff appraiser.
A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. A compliance agreement between DCA and the local government has been finalized. The proposed easement is consistent with the goals, objectives and policies of the adopted Santa Rosa County Comprehensive Plan.
(See Attachment 2, Pages 1-18)
Substitute Item 3 Miami-Dade County Option Agreement/Dade County Archipelago Florida Forever Project
Consideration of an option agreement to acquire 25.58 acres within the
Dade County Archipelago Florida Forever project from Miami-Dade County.
Substitute Item 3, cont.
LOCATION: Section 13, Township 55 South, Range 39 East
CONSIDERATION: $1,182,500 (Board of Trustees' share of County's purchase price)
* The Approved
Value was arrived at by taking the higher of the two appraisals for the
Suchman parcel and 120 percent of
STAFF REMARKS: The Dade County Archipelago project is a "B" group project on the 2002 Interim Florida Forever Full Fee Project List approved by the Board of Trustees on January 29, 2002. The project contains 856 acres, of which 761 acres have been acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 95 acres or 11 percent of the project will remain to be acquired.
In July 1995, Dade County purchased the property, which was being considered by the Land Acquisition Advisory Council (LAAC) as an addition to the Dade County Archipelago CARL project, from several owners. Subsequently, the addition of the Tamiami Complex to the Dade County Archipelago CARL project was approved by LAAC and the Board of Trustees. Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands and Miami-Dade County (County), if this item is approved, the Board of Trustees will reimburse the County for 50 percent of the purchase price and closing costs paid by the County for the parcel, or 50 percent of the approved value, whichever is less. In no event will the Board of Trustees' share of the purchase price exceed 50 percent of the approved value. Title to the property acquired will vest in the Board of Trustees.
All mortgages and liens will be satisfied at the time of closing. On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them appropriately. Therefore, DEP staff will review, evaluate and implement the most appropriate resolution for any title issues that arise prior to closing.
The County will provide a title insurance policy certified to the Board of Trustees, certified survey and environmental site assessment prior to closing. The Board of Trustees will reimburse the County 50 percent of the cost associated with updating each item and bringing it into compliance with the DSL's standards. This reimbursement is contingent on the closing of this transaction.
On a limestone ridge east of the Everglades, where Miami and Homestead and surrounding farms now stand, were subtropical pinelands and hardwood hammocks unique in the United States. Now only tiny pieces of these forests remain, the best of which the Dade County Archipelago project will protect. In so doing, the project will conserve habitat for rare or threatened animals and plants, such as the short tailed hawk, osprey, Small's milpea and the Florida thoroughwort brickell-bush. It will also provide areas where residents and visitors can learn about and appreciate what was here before the development.
Substitute Item 3, cont.
This property will be managed by the County, allowing passive recreational use.
This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.
(See Attachment 3, Pages 1-25)
Substitute Item 4 Highgate Corporation/Hickory Corporation of Bonita Springs Acquisition Agreement/Critical CREW Portion of the Corkscrew Regional Ecosystem Watershed Project
REQUEST: Consideration of authorization to acquire 100 percent interest in 11 parcels totaling 190 acres within the Critical CREW portion of the Corkscrew Regional Ecosystem Watershed project from the Highgate Corporation and the Hickory Corporation of Bonita Springs.
LOCATION: Section 33, Township 47 South, Range 26 East
CONSIDERATION: $ 1,672,000
STAFF REMARKS: The Corkscrew Regional Ecosystem Watershed (CREW) project is an "A" group project on the 2002 Interim Florida Forever Full Fee Project List approved by the Board of Trustees on January 29, 2002. The project contains 61,568 acres, of which 22,308.24 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 39,069.76 acres or 63.5 percent of the project will remain to be acquired.
In 1994, the legislature enacted section 259.041, F.S., which provided the authority to adopt Water Management District procedures for joint acquisitions. On June 27, 1995, the Board of Trustees authorized staff to enter into an acquisition agreement with the South Florida Water Management District (District) acquire various ownerships located within the CREW project in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S.
30, 1995, the Land Acquisition Advisory Council expanded the CREW project
boundary, eliminated a $10 million cap on project funding and designated
the project a shared acquisition with the District. As a shared acquisition,
the District and the Board of Trustees are each expected to spend the
same amount in acquiring land within the project. Since the District has
already made some purchases for which it was credited, staff agreed that
it would be appropriate for the Board of Trustees to match those purchases.
Therefore, the acquisition agreement was amended to provide that the Board
of Trustees purchase $13,360,000 worth of land in the project at its sole
cost and expense before the 50/50 shared acquisitions will begin. The
District has provided documentation, acceptable to the Division of State
Lands, establishing the District's expenditure in this project. Following
the Board of Trustees' authorization of the acquisitions contemplated
in this item, $6,504,487 worth of land will have
Substitute Item 4, cont.
been purchased by the Board of Trustees towards matching the District's purchases in this project. The remaining matching balance will be $6,855,513.
On August 14, 2001, the Board of Trustees authorized the Division of State Lands to modify the acquisition agreement with the District to allow the District to (a) extend offers for that portion of the CREW project known as the Southern CREW Critical Project (Critical CREW) that exceed the appraised value by the greater of $5,000 or up to 125 percent of the appraised value; (b) purchase improved property; and (c) approve a substitute procedure allowing any resulting contracts to be approved according to the current delegations when appropriate. The Board of Trustees' approval of this amendment has allowed the District to increase voluntary acquisitions, reduce the number of lengthy and expensive condemnations and reduce the overall project acquisition cost.
The District has acquired agreements for sale and purchase for seventeen parcels within the Critical CREW project boundary. Pursuant to the terms of the amended acquisition agreement, the District shall be reimbursed for all costs associated with acquiring the eleven properties, including pre-acquisition and closing related costs. The Board of Trustees' purchase price will be 100 percent of the contract price negotiated by the District plus 100 percent of the cost incurred in the purchase of the properties. Title to the properties acquired will vest in the Board of Trustees.
As provided for in the amended acquisition agreement, the Governing Board of the District adopted Resolution 2002-021 requesting the Board of Trustees' release of funds for the purchase price for the seventeen parcels, reimbursement of 100 percent of its pre-acquisition and reimbursement of 100 percent of its closing costs. Six of the parcels are being processed pursuant to the authority delegated to the Department of Environmental Protection by the Board of Trustees. Pursuant to the amended acquisition agreement, the pre-acquisition and closing costs will be reimbursed from Florida Forever. The District's resolutions contain all of the assurances required by the amended acquisition agreement.
These properties will be managed by the District as a conservation and preservation area with passive public use.
These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.
(See Attachment 4, Pages 1-37)
Item 5 George
R. Schell Recommended Consolidated Intent
Consideration of an application for a five?year sovereignty submerged
lands lease containing 4,461 square feet, more or less, for a proposed
commercial marina to be used in conjunction with an upland boat repair
George R. Schell
Item 5, cont.
Section 19, Township 26 South, Range 37 East, in the Indian River, Class
II Prohibited Shellfish Harvesting Waters, near the city of Melbourne,
within the local jurisdiction of Brevard County
CONSIDERATION: $694.80, representing the initial lease fee computed at the base rate of $0.1246 per square foot, and including the initial 25 percent surcharge payment. Sales tax will be assessed, pursuant to section 212.031, F.S. The lease fee may be adjusted based on six percent of the annual rental value pursuant to section 18-21.011(1)(a)1, F.A.C.
STAFF REMARKS: In accordance with rules adopted pursuant to section 373.427(2) and 253.77(2), F.S., the attached "Consolidated Notice of Intent" contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., and the authorization to use sovereignty submerged lands under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for a permit, the Department of Environmental Protection (DEP) will issue a "Consolidated Notice of Intent to Issue" that will contain general and specific conditions. If the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity qualifies for a permit, DEP will issue a "Consolidated Notice of Denial."
The applicant is proposing to construct, in two phases, a 12-slip commercial marina along the Indian River to be used primarily in conjunction with an upland boat sales and repair facility. Six of the slips will be used for mooring of vessels for sale, and six of the slips will be available for rental mooring to the general public. The applicant has indicated that vessel testing from the facility will be limited, and in most cases the applicant, who is a licensed boat captain, will operate the vessels. The facility will primarily accommodate recreational type vessels ranging in lengths of between 10 to 25 feet. An area of seagrasses commences about 10 to 15 feet from the mean high water line (MHWL) and continues to approximately 50 feet waterward of MHWL. There is approximately 70 percent coverage of seagrasses along the entire shoreline, with the remainder composed of muck and sand bottom. The applicant will extend the docking portion of the marina beyond the seagrass area to avoid impacts to seagrasses. Also, the structure is designed with narrow, elevated access walkways to reduce shading impacts as has been recommended by the National Marine Fisheries Service.
Phase 1 construction of the marina will consist of the installation of a 23-foot-long by 4-foot-wide access ramp that will be located landward of the MHWL, and connected to a 101.83- foot-long by 4-foot-wide main access pier. This access ramp will be elevated 5 feet above mean high water (MHW) over the area that contains seagrasses then slope down to 3 feet above MHW for the remainder of the structure. The main access pier will initially contain two 16-foot-long by 2-foot-wide finger docks that will provide three wet-slips on the northside of the main access pier. Signage will be installed to notify boaters that docking is prohibited except in the three authorized slips. Wooden railings will be installed along both sides of the ramp and main access pier extending from the shore to the first slip. Rope railings from that point east will be installed to prevent additional boat dockage. This has been addressed as a specific condition in the environmental resource permit.
Phase 2 of
the project will consist of the construction of a 50-foot-long by 4-foot-wide
"T" shaped, terminal platform at the end of the main access
pier. This terminal platform will contain two 16-foot-long by 2-foot-wide
finger docks on the eastside of the terminal platform
Item 5, cont.
for four wet-slips and two wet-slips on the westside of the terminal platform, providing all together six wet-slips at the terminal platform. Also, two more 16-foot-long by 2-foot-wide finger docks will be constructed along the southside of the main access pier, providing three additional wetslips. The dockage provided in both phases of construction will provide a total of 12 wet-slips.
DEP, in an effort to assist the applicant, will issue an environmental resource permit for this phased project. The U. S. Army Corps of Engineers has consulted with the U. S. Fish and Wildlife Service and has issued a permit for phase 1 of this project.
The phase 2 construction of this project was contingent on the outcome of a final order regarding a challenge to Brevard County's proposed manatee protection rule. On February 27, 2002, the item was withdrawn to await the outcome of that final order. On April 17, 2002, a final order was issued which will result in the posting of new speed zones. Once the new speed zones are posted, the applicant may complete the construction of phase 2. In the event that the ruling is overturned, and posting of the signs is stopped, the project will be re-evaluated by DEP and formal consultation with the U.S. Fish and Wildlife Service will be reinitiated for the federal permit for phase 2 of this project.
The proposed commercial marina qualifies under delegation of authority for authorization to use sovereignty submerged lands. However, the project is located in Brevard County, one of the 13 critical manatee counties identified by the Florida Fish and Wildlife Conservation Commission (FFWCC). Since this project involves construction of a commercial marina in a county where FFWCC has determined that significant progress has not been made by Brevard County toward developing a manatee protection plan, this project must be brought to the Board of Trustees for consideration as a project of "heightened public concern," pursuant to section 18-21.0051(4), F.A.C.
resource permit will prohibit liveaboards and fueling facilities and will
require a sewage pumpout facility. The recommendations of FFWCC regarding
protection of manatees have been addressed in the permit. Protection of
seagrasses has also been addressed in the permit. The project was noticed,
pursuant to chapter 253.115, F.S.
(See Attachment 5, Pages 1-32)
RECOMMEND APPROVAL SUBJECT TO THE PAYMENT OF $694.80
Item 6 DB Holdings, L.L.C. Recommended Consolidated Intent
REQUEST: Consideration of an application for a ten-year sovereignty submerged lands lease containing 169,512 square feet, more or less, for a 52-slip commercial marina.
Item 6, cont.
DB Holdings, L.L.C.
Section 38, Township 02 South, Range 26 East, in the St. Johns River,
Class III Waters, within the local jurisdiction of the city of Jacksonville
CONSIDERATION: $20,065.14 representing the initial lease fee computed at the base rate of $0.1246 per square foot, discounted 30 percent because of the first-come, first-served nature of the facility and including the initial 25 percent surcharge payment. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fee may be adjusted based on six percent of the gross rental income pursuant to section 18-21.011(1)(a)1, F.A.C.
STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., the attached "Recommended Consolidated Notice" contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., and the authorization to use sovereignty submerged lands under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activities, which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for a permit, the Department of Environmental Protection (DEP) will issue a "Consolidated Notice of Intent to Issue" that will contain general and specific conditions. If the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity qualifies for a permit, DEP will issue a "Consolidated Notice of Denial."
The applicant is proposing the construction of a 52-slip commercial marina in downtown Jacksonville. Four of the slips will be for temporary mooring spaces for transient boats to be provided on the waterward side of the terminal platforms. The temporary mooring will not exceed 72 hours. The marina will have at least 90 percent of the slips available for rent to the public on a first-come, first-served basis. This has been addressed as a special lease condition. The marina is part of the overall city Community Redevelopment Plan for downtown, which is a chapter 163, F.S., Community Redevelopment Area.
The marina will accommodate vessels ranging 40 to 50 feet in length, with typical drafts of 3 to 7 feet. The marina will be located within an open water basin along the northbank of the river. The basin provides sufficient water depths for the intended boat drafts and does not contain any submerged or aquatic resources. No dredging is proposed and the floating docks are to be attached, without pile supports, to an existing bulkhead. The docks will be connected to H-beams bolted to the bulkhead and will slide up and down the beams with the tides.
The basin is bounded to the east by a large pile supported pier, to the north by high-rise apartments and multi-level parking garage, and to the west by townhouses. The apartments, parking garage and townhouses are part of the applicant's redevelopment project and are currently under construction. The large pier to the east is located on an adjacent parcel that is also undergoing redevelopment as part of the city's goal to increase residential housing downtown.
are being constructed on a pile supported public street and parking lot.
The area was former submerged, sovereignty lands deeded by the Board of
Trustees in 1963 to the city for public purposes. On August 12, 1999,
the Board of Trustees approved the partial
Item 6, cont.
release of restrictions on 3.5 acres, more or less, of the deeded lands to allow for the redevelopment project. The city committed funds to increase public access along the river and additional parks as part of the request to release the deed restrictions.
At present, the applicant is the fee simple owner of the riparian property along the basin and marina location. As part of the redevelopment agreement between the applicant and the city, an extension of the city's northbank riverwalk will be constructed around the marina basin for public access. Upon completion of the extension according to the redevelopment agreement, the applicant has the obligation to convey fee title to the city; however, the applicant will maintain sufficient interest in the riparian uplands to conduct activities on sovereignty submerged lands. The applicant's legal counsel has provided a letter stating that the applicant agrees to consult with DEP on specific language in the legal documents to be executed between the applicant and the city. This will ensure that the applicant will maintain the sufficient upland interest necessary to use and maintain the marina facility. A special lease condition has been included that requires the applicant to retain sufficient upland interest in the riparian property. In addition, the applicant will maintain control and operate the marina. Use of the marina will not require ownership of an upland unit and no preferential reservations of slips for tenants will be made.
DEP's environmental resource permit does not authorize liveaboards or fueling facilities. Portable sewage pumpout is authorized in DEP's environmental resource permit. The Florida Fish and Wildlife Conservation Commission states that the project appears to be consistent with the Duval County Manatee Protection Plan, and its recommendations regarding protection of manatees are being addressed in the environmental resource permit and special lease conditions. In a February 4, 2002 letter, the U.S. Fish and Wildlife Service determined that the project is not likely to adversely affect manatees.
The project was noticed to two property owners within 500 feet of the proposed lease area as required by section 253.115(1), F.S. No objections or comments have been received to date.
A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the compliance agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The proposed marina is authorized by an amendment to the Jacksonville Consolidated Development of Regional Impact, Northside East Downtown and approved by DCA on July 20, 2001.
(See Attachment 6, Pages 1-28)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITIONS, AND PAYMENT OF $20,065.14
Substitute Item 7 Yachting Promotions, Inc. Recommended Consolidated Intent
REQUEST: Consideration of an application for a 30-day, Class IV special event, sovereignty submerged lands lease to preempt approximately 201,535 square feet of sovereignty submerged lands for a temporary boat show
Substitute Item 7, cont.
STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., this "Recommended Consolidated Notice" contains a recommendation for issuance of both the permit required under part IV of chapter 373, F.S., and the authorization to use sovereignty submerged lands under chapter 253, F.S. The Board of Trustees is requested to act on those aspects of the activity, which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands, and the activity also qualifies for a permit, the Department of Environmental Protection (DEP) will issue a "Consolidated Notice of Intent to Issue" that will contain general and specific conditions. If the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity qualifies for a permit, DEP will issue a "Consolidated Notice of Denial."
The applicant proposes the construction of 32,700 square feet of temporary, commercial, floating docks for the purpose of mooring 209 vessels at the Emerald Coast Boat Show, that will be held May 30 through June 2, 2002. The proposed lease area is 201,535 square feet (4.62 acres). The temporary docks will be utilized as a centralized sales center for public display of vessels by various brokers. The applicant proposes to construct the facility, run the sales operation for four days, and dismantle the facility all within a 30-day timeframe. The applicant is also proposing to construct two 22-foot-long by 4-foot-wide temporary ramps to allow the smaller boats, which have been trailered to the site to be placed in the water. The applicant is also proposing to have a floating refreshment barge, which is standard practice at other special event boat shows in Florida. The applicant has satisfied the financial assurance requirements for removal of the temporary structures in accordance with section 18-21.0082, F.A.C., by having a satisfactory track record with the sponsorship of previous boat shows. The boat brokers and exhibitors will lease mooring space from the applicant. The applicant is required to report the gross rental income collected from the special event to the Division of State Lands as part of the annual certification required for its lease, pursuant to section 18-21.011(1)(d) 3, F.A.C.
is located in Choctawhatchee Bay in an area of good flushing with water
depths ranging from -3 feet mean low water to -16 feet mean low water.
Due to the rapid flushing of the area, no hydrographic study, water quality
testing or water quality monitoring was requested of the applicants. The
209 vessels displayed at the boat show will range from under 20 feet to
60 feet or more in length and have drafts ranging from 1.5 feet to 5.4
feet. The smaller boats (20 to 30 feet) will be moored closer to the shoreline
in water depths with a minimum of 3 feet mean low water (MLW). The larger
boats (30 to 60 feet) will be moored further offshore in water depths
with a minimum of 16 feet MLW. No seagrasses or other
Substitute Item 7, cont.
submerged resources are located within the lease area or within several hundred feet of the proposed lease area. Additionally, no seagrasses are located in the area used by the boats for ingress or egress to the boat show. Temporary buoys will mark the optimum navigational route for vendor ingress and egress to the docks. Navigation charts will be provided to all vendors in advance of the show. No sea trials are allowed during the boat show, which will also eliminate any concerns with destruction of adjacent seagrass beds, or discharges to adjacent waters from boat bilges or heads. The applicant will provide for continuous patrol by law enforcement during the show.
The applicant has proposed a plan and procedure to protect nearby Class II waters and water quality. Pilings for the boat mooring area will consist of 40-foot, steel I beams which will be driven rather than jetted. For the access walkway, jetted 20-foot wood pilings will be used since the shallow waters prevent access by the pile driver. The pilings will anchor floating docks, which are constructed of polystyrene blocks with wood decking. These floating docks and steel pilings have been used at other boat shows and virtually eliminate concerns regarding potential leaching of hazardous chemicals. All pilings and floating docks will be removed immediately after conclusion of the boat show. Best management practices include the prohibition of discharges of other common pollutants such as: waste or new oil, anti-freeze/engine coolants, waste gasoline, diesel, kerosene, mineral spirits, grease or batteries.
The project is located in Class III Waters, Prohibited for Shellfish Harvesting, however, the adjacent waters are Class II Waters, Conditionally Approved for Shellfish Harvesting. The Department of Agriculture and Consumer Services, Shellfish Environmental Assessment Section, had no objections to the project in a letter received on April 15, 2002. No permanent liveaboards are permitted at the boat show, however, crews of approximately three people per boat, on the 20 largest brokered (pre-owned) boats, are authorized to remain overnight with their vessels for safety purposes. The applicant has provided assurances that these boats have sufficient holding tank capacity to accommodate overnight use without having to discharge. The stay-on-board crews will be using upland facilities during the day. This is standard practice for all larger boats in the event of any unexpected concerns and is customary at other special event boat shows in Florida. The smaller boats and the new boats will not need to have permanent crews stationed on board the boats during the show or at night. Commercially maintained restroom facilities will be provided on the uplands for boat show attendees and staff. The applicant will have a 40-foot-long by 40-foot wide floating platform located on the waterward end of the facility, which will be used for educational displays. Additionally, the applicant has invited the Choctawhatchee Bay Alliance to operate an informational booth during the show to facilitate public education.
DEP's wetland resource permit prohibits sewage pumpout facilities, authorizes temporary liveaboards, and prohibits fueling facilities. According to an April 15, 2002 letter FFWCC, Bureau of Protected Species Management, the proposed project will not significantly affect the endangered manatee so long as the applicant follows the standard manatee construction conditions for all in-water construction. This has been included as a specific condition in the wetland resource permit and as a special lease condition. Okaloosa County is not one of the thirteen designated counties earmarked by the Board of Trustees in 1989 to develop a manatee protection plan. The Department of Community Affairs stated in an April 15, 2002 letter that it had no objections to the project. Noticing of property owners within a 500-foot radius of the project is complete. No objections have been received. The proposed project will be located within the 25-foot setback area and a waiver has been obtained from both affected adjacent property owner(s).
A local government
comprehensive plan has been adopted for this area pursuant to section
163.3167, F.S.; however, the Department of Community Affairs (DCA) determined
that the plan was not in compliance. In accordance with the compliance
agreement between DCA and the local government, an amendment has been
adopted which brought the plan into compliance. The
Substitute Item 7, cont.
(See Attachment 7, Pages 1-25)
RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITIONS AND PAYMENT OF $2,615.76
Substitute Item 8 David & Rita Law Lease Modification
FROM THE SEPTEMBER 11, 2001 AGENDA
REQUEST: (1) Consideration of an after-the-fact authorization for modification of an existing 25-year sovereignty submerged lands lease containing 30,296 square feet, more or less, for an existing commercial marina; and (2) authorization for an existing unauthorized concrete pad and associated unauthorized fill.
APPLICANTS: David G. Law and Rita Law (d/b/a Goodland Bay Marina)
Section 19, Township 52 South, Range 27 East, in Blue Hill Creek, Class
II Waters, within the local jurisdiction of Collier County
STAFF REMARKS: A request for revocation of Sovereignty Submerged Lands Lease No. 111536925 (Lease) was presented for Board of Trustees' consideration on September 11, 2001 (minutes attached). The Department of Environmental Protection (DEP) recommended that the Board of Trustees defer action on DEP's request until November 14, 2001 to provide DEP and the Lessee additional time to enter into a Consent Final Judgment (CFJ) to resolve the Lessee's violations of the Lease that expires on January 26, 2018 at Goodland Bay Marina (Marina). The Board of Trustees subsequently deferred the request to provide DEP and the Lessee additional time to resolve outstanding technical details of the CFJ.
For several months, DEP and the Lessee diligently worked to complete the CFJ. As a result, on April 24, 2002, DEP concurrently filed its Complaint and a CFJ in circuit court in Leon County, to settle the Lessee's Lease violations. The CFJ resolves nearly all of the issues of non-compliance with the Board of Trustees' proprietary statutes and rules, DEP's regulatory statutes and rules, and prior DEP consent order no. 99-1944. Those non-compliance items, most of which have been corrected, are discussed in more detail in an attachment to this request. That attachment discusses the types of violations, administrative fines, civil penalties, DEP costs, whether the violation has been corrected and the date of correction, and other information.
the Board of Trustees to authorize the Lease modifications referenced
in the CFJ. The lease modifications would authorize the following: (a)
the unauthorized 12-foot-long expansion to the travel lift/forklift area;
(b) the unauthorized expansion of the travel lift
Substitute Item 8, cont.
ramps outside of the existing lease area to be included in a Temporary Use Agreement (TUA); (c) the unauthorized 5-foot-wide by 55-foot-long dock access walkway and finger pier; (d) the unauthorized asphalt treatment of the parking area located on the northern end of the lease area, and to authorize parking of vehicles, storage of boats, or other similar non-water dependent uses; (e) the unauthorized concrete pad over the previous gravel area (approximately 11 feet wide by 29.5 feet long); (f) the unauthorized 14.4-feet-wide by 28.3-feet-long roofed area located landward of the gasoline dispenser; and (g) the two unauthorized 3.5-foot-wide finger piers.
The Marina is located in an aquatic preserve, thus, modifications to the Lease must be clearly in the public interest, pursuant to section 258.42, F.S., and section 18-20.004(1)(b), F.A.C. To comply with the public interest requirement, the CFJ requires the Lessee to purchase and donate a water quality portable sampler (Isco, Inc., Model #6712 or equivalent) to DEP for use at the Rookery Bay National Estuarine Research Reserve (RBNERR). If the Board of Trustees denies the recommended Lease modifications, the CFJ requires the Lessee to comply with the existing Lease within 20 days of the Board of Trustees' action.
The Lessee and DEP have agreed to recognize a change in location of the approximate mean high water line from the location shown on the original survey attached to the Lease. As a result, approximately 3,083 square feet of area preempted by the Marina and upland fill, on the northwest corner of the Marina, have been removed from the Lease. The resulting 27,213- square-foot Lease area is shown on the Lessee's modified survey and legal description, and it will be reflected in the modified lease.
The CFJ requires the Lessee to formally request authorization from the Board of Trustees to retain an existing unauthorized 14.4-feet-long by 12.3-feet-wide concrete pad and associated unauthorized fill. The CFJ outlines the criteria for the Lessee to remove and subsequently restore the concrete pad site, if the Board of Trustees denies the Lessee's request to retain the concrete pad and fill. DEP recommends that the Board of Trustees deny this part of the Lessee's request for reasons discussed below.
The concrete pad and fill at the Marina are located in an aquatic preserve; thus, these structures are subject to the criteria of chapter 18-20, F.A.C. Section 18-20.004(1)(c), F.A.C., provides "There shall be no construction of seawalls waterward of the mean or ordinary high water line, or filling waterward of the mean or ordinary high water line, except in the case of public road and bridge projects where no reasonable alternative exists except as provided in Section 258.42(3)(e)4, F.S." Additionally, section 258.42(3)(e)4, F.S., provides "there shall be no erection of structures within the preserve, except: Structures for shore protection, including restoration of seawalls at their previous location or upland of or within 18 inches waterward of their previous location, approved navigational aids, or public utility crossings authorized under paragraph (a) may be approved." If, prior to constructing the concrete pad and fill, the Lessee had adequately demonstrated that its shoreline was eroding, DEP could have authorized the Lessee to install riprap to protect his shoreline. Under no circumstance would DEP have authorized the Lessee to construct a concrete pad and fill in an aquatic preserve, because the concrete pad and fill are not consistent with the aquatic preserve rules and statute.
the concrete pad and fill are non-water dependent structures/activities.
Section 18-21.004(1)(d), F.A.C., limits activities on sovereignty lands
to water dependent activities only unless the board determines
that it is in the public interest to allow an exception as determined
by a case by case evaluation." DEP contends, that authorizing the
concrete pad and fill is contrary to the public interest for the following
reasons: (1) the Lessee installed the
Substitute Item 8, cont.
submerged lands; (2) the concrete pad and fill could be removed easily without harming aquatic preserve resources; and (3) the concrete pad and fill does not enhance public access to the aquatic preserve. Prior to installing the concrete pad, the Lessee used a wooden deck to access the aquatic preserve. Thus, DEP recommends that the unauthorized concrete pad and fill be removed. This recommendation has been addressed as a special approval condition.
The Lessee expressed concern about its need to provide access to the aquatic preserve for persons with disabilities. Recognizing this concern, the CFJ allows the Lessee to replace the concrete pad and fill with a pile-supported structure in the same location as the concrete pad. The CFJ requires the decking on the pile-supported structure to be open cell grating with spaces no greater than ½ inch (13 mm) wide in one direction. Open cell grating is consistent with the Americans with Disabilities Act 4.8.8. guidelines for walking surfaces. It is preferable because it prevents water accumulation on walking surfaces and eliminates the possibility of a wheelchair wheel becoming lodged. Furthermore, installing open cell grating is consistent with section 18-20.004(5)(3), F.A.C., which provides "Alterations to the criteria in rule 18-20.004(5), F.A.C., shall be authorized to accommodate persons with disabilities or to comply with the Americans with Disabilities Act."
If the Board of Trustees does not require removal of the unauthorized concrete pad and fill, DEP recommends that the annual lease fee for this structure be adjusted. Section 18-21.011(1)(b)6, F.A.C., provides that "The annual lease fees for restaurants and other non-water dependent uses shall be negotiated by the Department or water management district staff. In negotiating the annual lease fee, the Department or water management district staff will consider the appraised market rental value of the riparian upland property and the enhanced property value, benefits, or profit gained by the applicant if the proposed lease is approved." The Board of Trustees has previously approved a modified lease fee of ten times the base lease rate for several different leases containing non-water dependent structures/activities. If the Board of Trustees approves the Lessee's request to retain the concrete pad and fill, DEP recommends that the ten times rate be approved for the existing unauthorized concrete pad. The current lease rate multiplied by a factor of ten would result in an annual lease fee of $220.54, at today's rate, for the 177 square feet preempted by the existing concrete pad.
The CFJ also requires the Lessee to refrain from mooring vessels beyond the boundaries of the Lease, and the boundaries proposed in the TUA application received by DEP on December 19, 2001. The TUA will provide temporary authorization for the Lessee to preempt an additional 10,527 square feet of sovereignty submerged lands for existing unauthorized mooring and structures outside of the Lease boundary. The TUA requires the Lessee to pay $2,448.06 as Lease fees in arrears, with interest, for this area from October 6, 2000 to May 7, 2002, and the Lease fee for the 2002 - 2003 Lease term. A special approval condition requires the Lessee to execute the TUA within 30 days of Board of Trustees' approval of the lease modification.
If the Lessee complies with the CFJ and the three special approval conditions, the Lessee anticipates submitting an application for another lease modification to include the TUA area and additional mooring areas totaling 16,565 square feet of sovereignty submerged lands. DEP anticipates submitting that request for consideration by the Board of Trustees upon the Lessee's satisfactory completion of the CFJ.
(See Attachment 8, Pages 1-28)
Item 9 Prohibited Waterbodies for Removal of Pre-cut Timber List Amendment
REQUEST: Consideration of amendments to Attachment B of the Sovereignty Submerged Lands Use Agreement for Recovery of Pre-Cut Submerged Timber titled "PROHIBITED WATERBODIES FOR REMOVAL OF PRE-CUT TIMBER" as approved by the Board of Trustees on December 14, 1999.
Department of Environmental Protection (DEP)
Upon further review of the value of precut timber to fisheries by FWCC, and due to slow economic times in Florida, in the panhandle in particular, the issue of deadhead logging was revisited. DEP brought an item, which was approved, to the Board of Trustees to revisit the legal recovery of pre-cut timber from Florida waters on December 8, 1998. An application was made by L.C. Pinson to recover timber from Newnan's Lake, also known by its Seminole name Lake Pithlachocco, in Alachua County on November 29, 1999. At the time the application was received, there was water in the lake. On December 14, 1999, a decision was made to suspend approval of new deadhead logging applications in Florida to address a variety of concerns. By the time the moratorium was lifted on April 25, 2000, the water level in Newnan's Lake had dropped to less that ½ the normal surface area. Mr. Pinson's application was reviewed based on the low lake level, and DEP's Environmental Assessment Section determined that the recovery from a dry lakebed would present less of an environmental impact than that of a lake at a normal level.
application was approved by DEP on May 25, 2000, the Use Agreement was
granted on May 26, 2000, and recovery of pre-cut timber was begun May
27, 2000. At the same time, an archeological research project being conducted
on the lake, by a local high school, resulted in the discovery of numerous
ancient canoes. During the initial few days of deadhead logging, there
was a working agreement between Mr. Pinson and Mr. Steve Everett, who
represented himself to be the coordinator of the research project, whereby
the parties would notify each other of any artifacts found to avoid potential
damage. This situation soon changed as the scope of the discovery of canoes
and prehistoric artifacts was realized, and a professional archeologist
from the Department of State (DOS) arrived on site. There were many allegations
of canoes being damaged and destroyed and, upon request, Mr. Pinson terminated
recovery activities and removed his equipment while these allegations
were investigated. FFWCC conducted an investigation into the allegations
of historical resource damages and DEP's Environmental Assessment Section
responded to the claims of environmental damages. All of these allegations
proved to be unsubstantiated. After this investigation was completed,
Mr. Pinson submitted a modification application to DEP to complete the
recovery of the pre-cut timber remaining on the lakebed. Representatives
Item 9, cont.
DOS met with him on site to develop a means of recovery to protect the resources DEP's Environmental Assessment Section performed another environmental assessment of the proposed recovery areas.
To date, field investigations have resulted in a 682-acre portion on the north shore of Newnan's Lake being listed, in March 2001, on the National Register of Historic Places as the Lake Pithlachocco Canoe Site, due to the significant number of prehistoric canoes and associated prehistoric artifacts identified in the lake. The site contains 93 identified in situ canoes and associated artifacts. Radiocarbon dates from 52 of the canoes indicate that the canoes range from 500 to 5,000 years old. The site is significant because it affords the rare opportunity to document and study a wide array of prehistoric watercraft in the context in which they were used. The canoe site also shows the continuity of boat building traditions that continue to be an important aspect of modern Native American culture in Florida. It should also be noted, that the discovery of such canoes dates back to 1934, and that recent investigations by DOS's Bureau of Archaeological Research archaeologists have located additional canoes in the east, northwest and southwest parts of the lake. Discussions with the National Park Service staff about appropriate National Register boundaries have suggested that, because the entire lake has not been surveyed, National Register listings should be limited to known, actual sites, rather than the entire lake as a single site. However, in consideration of the broad distribution of canoes in various parts of the Lake, Lake Pithlachocco as a whole, is considered to be a high probability area for the location of significant archaeological resources.
Objections to the modified proposal have been received from Patricia R. Wickman, Ph.D., Director of Anthropology and Genealogy, Seminole Tribe of Florida; Mr. Billy Cypress, Chairman of the Miccosukee Tribe of Indians of Florida; the Sierra Club; Robert Hutchinson, Chairman, Alachua County Board of County Commissioners.
Based on the wide distribution of the historic canoes on the bottom of Newnan's Lake and the concerns expressed regarding the potential damage to that historically significant resource by renewed deadhead logging activities, DOS considers renewal of such activities to be a matter of heightened public concern. Therefore, DOS supports the recommendation of Chairman Billy Cypress that the Board of Trustees thoroughly review and take such action, as is necessary, to ensure the protection of the cultural and historical resources at the Newnan's Lake Canoe Site by adding Newnan's Lake to the list of waterbodies upon which deadhead logging is prohibited. Also, amend Attachment B to read "Recovery of pre-cut timber shall be prohibited in those waterbodies that are considered pristine due to water quality or clarity or where the recovery of pre-cut timber will have a negative impact on, or be an interruption to navigation, recreational pursuits, or significant cultural resources."
(See Attachment 9, Pages 1-13)
RECOMMEND (1) ADD NEWNAN'S LAKE TO THE LIST OF "PROHIBITED WATERBODIES FOR THE REMOVAL OF PRE-CUT TIMBER; AND (2) CLARIFY THAT THIS LIST MAY INCLUDE WATERBODIES WITH SIGNIFICANT CULTURAL RESOURCES