Submittal of the minutes of the October 13, 1998 Cabinet Meeting.

REQUEST: Consideration of an application for a five-year sovereignty submerged land management agreement containing 1,136,916 square feet, more or less, to construct and operate a managed anchorage mooring field.

COUNTY: Martin

Management Agreement: MA-43-124

File No.: 430219306

Application No.: 43-0143979-001

APPLICANT: City of Stuart

LOCATION: Section 05, Township 38 South, Range 41 East, in the South Fork St. Lucie River, Class III Waters, Manatee Area slow speed zone, within the local

jurisdiction of the City of Stuart.

Aquatic Preserve: No

Outstanding Florida Waters: No

CONSIDERATION: No fees are required for management agreements pursuant to section 18-21.011, F.A.C.

STAFF REMARKS: The Board of Trustees authorized a rule amendment on September 14, 1995, to "link" the two processes of regulatory and proprietary reviews and authorizations. The rule became effective October 12, 1995. As a result of this linkage, the recommended Department of Environmental Protection (DEP) regulatory permit decision and the recommendation to the Board of Trustees on the proprietary authorization are contained in one document, the "Consolidated Notice of Intent to Issue," which is attached. The attached consolidated intent contains a recommendation for issuance of a permit under Part IV of chapter 373, F.S., and a recommendation for granting authorization to use sovereignty submerged lands under chapter 253, F.S., for the activity described therein. This recommendation is provided to the Board of Trustees pursuant to section 373.427(2), F.S. A description of the requested activity is provided in Section I, "Description of the Proposed Activity." The specific basis for recommending approval of the authorization to use sovereignty submerged lands is contained in Section III, "Background/Basis for Issuance."

Approval by the Board of Trustees is requested only for 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 an environmental resource permit and no challenges are successful, the Consolidated Notice of Intent will be issued and will contain general and specific conditions. In the event the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity otherwise qualifies for an environmental resource permit, the DEP will issue a "Consolidated Notice of Denial" for both the environmental resource permit and the authorization to use sovereignty submerged lands.

The applicant is proposing to construct and operate a 26.1-acre managed anchorage mooring field in the South Fork St. Lucie River adjacent to municipally-owned property, on an open-to-the-public, first-come, first-served, not-for-profit basis. The mooring field will consist of 69 mooring spaces with anchors, cables and buoys designed for the temporary mooring of recreational vessels. The applicant is proposing to utilize the municipally-owned upland property for amenities that will include: convenient sewage pumpout facilities, waste receptacles, a dinghy dock for land access, an on-site harbormaster, laundry facilities, rest room and shower facilities, and a ship store. The applicant hopes that by offering these amenities, boaters will be encouraged to use the mooring field. A nominal rental fee will be collected by the applicant from tenants of the mooring field in order to cover the cost of operations of the mooring field.

The primary goal of the applicant is to gain control of random mooring and to improve water quality in that portion of the St. Lucie River. At present, there are approximately 50 vessels ranging in size from 12 feet to 65 feet in length that use the proposed project site as an anchorage for transient and seasonal purposes. The boat operators randomly moor wherever there appears to be room. This creates a safety and navigational concern when boats are moored in close proximity to each other or are moored in areas adjacent to navigational channels. Because of the concentrated use of vessels within this area, there is concern that these vessels contribute to existing water quality problems. The moored vessels routinely discharge domestic sewage from marine heads and showers and other waste materials into waters of the state. The applicant wishes to formalize the anchorage area in order to establish specific individual mooring buoys, thereby creating orderly vessel orientation and to deter the discharge of contaminated water and material into waters of the state. This area of the river has not been known to support aquatic vegetation due to the lack of adequate substrate and diminished water clarity. A site inspection conducted DEP staff, in conjunction with representatives from federal and local regulatory agencies, found no significant aquatic resources within the project area.

The design, operation guidelines, and criteria for this proposed project are comparable to a similar mooring field operated by the City of Vero Beach (Management Agreement No. 31-0001), which was a fee-waived management agreement approved by the Board of Trustees on March 8, 1988.

The applicant has developed a management plan which provides background information, design, operational rules and regulations, and objectives for the applicant’s management of the mooring field.

The applicant will provide a harbormaster to assign and authorize moorings, oversee the mooring field, and manage the upland facilities. All tenants of the field will be required to enter into a rental agreement with the harbormaster within twelve hours of achieving anchorage. This rental agreement will bind the tenants to the rules and regulations as provided in the management plan. The management plan will not allow for the permanent mooring of vessels. Only authorized and operational vessels, those capable of maneuvering under their own power, and those in compliance with the United States Coast Guard regulations and safety standards shall be allowed within the mooring field. Vessels without integral mechanical power for propulsion will not be allowed.

Upon entering the mooring field, all vessels will be required to empty their sewage holding tanks into the sewage pumpout facility and then secure their tanks. No pumping of sewage in any area within the mooring field will be allowed, except at the pumpout stations. Liveaboard vessels will be required to empty their sewage holding tanks not less than every three days. Major repairs or refitting of vessels, including any activity that could result in a deposition of

materials into the waterway or within the anchorage field will be strictly prohibited.

The DEP environmental resource permit will require sewage pumpout facilities, allow liveaboards, and not allow fueling facilities. The manatee recommendations from the DEP’s Division of Marine Resources have been addressed within the specific conditions of the environmental resource permit. The applicant has also agreed to recommendations that will enhance local manatee location and identification efforts, which will be included as a specific permit condition. The project is being noticed pursuant to section 253.115, F.S.

A BellSouth public easement, T.I.I.F. Easement No. 25913 (2821-43), crosses the area of this proposed anchorage field. BellSouth stated in a letter dated October 1, 1998, that they have no objection to this project, as long as their easement is shown on the construction drawings, BellSouth is notified 14 days prior to commencement to allow them to mark their facility location with markers/buoys, and that a minimum of 15 feet clearance is maintained from the facility location. These requirements will be included as a specific condition in the environmental resource permit.

Staff is of the opinion that this project will result in a net improvement to the environment, as well as to the safety of the boating community. Construction activities will be limited to the installation of 69 helical screw systems for anchoring and mooring buoys.

Section 163.3194(3)(b), F.S., in summary, states that a local development approved or undertaken by a local government shall be consistent with the comprehensive plan if it meets all criteria of the plan and all criteria enumerated by the local government. The management agreement is consistent with the adopted plan according to a letter received on October 15, 1998, from the City of Stuart.

(See Attachment 2, Pages 1-38)

REQUEST: Consideration of adoption of a Final Order of Denial of Petition for Declaratory Statement.

COUNTY: St. Johns

APPLICANT: C.R. & D. Developers, Inc., Petitioner

STAFF REMARKS: On August 28, 1998, C.R. & D. Developers, Inc., owners of Hat Island, filed a Petition for Declaratory Statement under section 120.565, F.S., requesting that the Board of Trustees find that Hat Island is not a "coastal island" within the meaning of section 18-21.003(13), F.A.C. and is not an "undeveloped coastal island" within the meaning of section 18-21.003(52), F.A.C. [now (53)]. Rule 28-105.003, F.A.C., requires the Board of Trustees to take action on a Petition for Declaratory Statement only at a duly noticed public meeting. Hat Island is located in a salt marsh adjacent to the Intracoastal Waterway near the Tolomato River channel and near Guana River Marsh State Park. The waters surrounding a portion of Hat Island are within the Guana River Marsh Aquatic Preserve (Aquatic Preserve) owned by the State of Florida.

This petition is related to two administrative actions brought by Petitioner’s predecessors in title, which were consolidated and on which an appeal is pending in the Fifth District Court of

Appeal. Petitioner has been substituted as appellant in that appeal. Petitioner’s predecessor challenged the Department of Environmental Protection’s (DEP) intent to deny Florida Power and Light (FP&L) a permit and easement across sovereignty submerged lands to provide upgraded electrical services to Vilano Beach via Hat Island. Hat Island has no electrical service. The reason for the intent to deny was that the DEP’s Northeast District had determined that Hat Island was an unbridged, undeveloped coastal island under the above-stated rules, and section 18-21.004(1)(h), F.A.C., prohibits activities on sovereignty submerged lands which will provide new or upgraded electrical service to customers on unbridged, undeveloped coastal islands. The coastal island rules were held to be valid in Lost Tree Village Corp. v. Board of Trustees of the Internal Improvement Trust Fund, 698 So. 2d 634 (Fla. 4th DCA 1997). Subsequently, FP&L amended its application such that its easement over sovereignty submerged lands would not provide new electricity to Hat Island, and the DEP issued an intent to issue the permit and easement. Petitioner’s predecessors challenged both actions in administrative proceedings, both challenges were ultimately denied for lack of standing, consolidated, and appealed.

Petitioner argues that Hat Island is not within the Aquatic Preserve under section 18-21.003(13)(a), F.A.C., because Hat Island is not sovereignty submerged land; rather, it is private land which has not been included in the Aquatic Preserve pursuant to the provisions of chapter 258, F.S. Petitioner further argues that since Hat Island is more than one mile upstream of the mouth of the Tolomato River, it is not a "coastal island" under section 18-21.003(13)(b), F.A.C. The DEP disagrees, as explained more fully in the draft Final Order of Denial of the Petition for Declaratory Statement. Hat Island is a "coastline geological feature lying above mean high water that is completely separated from the coastal mainland by marine or estuarine waters. . . and is composed of any substrate material," and thus meets the primary definition of "coastal island" in the first paragraph of section 18-21.003(13), F.A.C. Whether Hat Island is within the Aquatic Preserve under 18-21.003(13)(a), F.A.C., is irrelevant because it meets the primary definition of coastal island, and it meets the definition under subsection (b) as well. Hat Island is further an island "within confined or semi-confined marine or estuarine waters with an open connection to the Atlantic Ocean. . . such as bays, lagoons, or inlets" under section 18-21.003(13)(b). Hat Island does not meet the exception of (13)(b) because it is not within a river "leading into marine or estuarine waters" because the marine system in which it lies is not a "river" but rather a coastal marine lagoon. The Hearing Officer in his Final Order in the coastal island rule challenge, Remington, Ott, et al. v. Board of Trustees, et al., 14 F.A.L.R. 3089 (D.O.A.H. 1992), made findings of fact, and the Minutes of the December 19, 1989 Board of Trustees’ meeting, state that the intent of section (13)(b) was to include islands within coastal bays, lagoons, and estuaries (e.g., Indian River Lagoon along the east coast and Charlotte Harbor/Pine Island Sound along the west coast), and not to include "islands that occur in river and lake systems within the interior portion of the state" such as the St. Johns or Caloosahatchee Rivers. Hat Island is like an island in the Indian River Lagoon. Therefore, the DEP finds, as it found in the previous two permit proceedings, that Hat Island is a "coastal island." Because Hat Island has no known development on it in accordance with the criteria in section 18-21.003(53), the DEP finds that it is also an "undeveloped coastal island" within the meaning of that rule. Therefore, because the petition requested a declaratory statement that Hat Island is not a "coastal island" and is not an "undeveloped coastal island," the petition must be denied. No hearing was timely requested, and none was held. Hearings are discretionary under section 28-105.003, F.A.C.

(See Attachment 3, Pages 1-22)

STAFF REMARKS: On September 24, 1998, the Board of Trustees received a petition filed by the organization Public Employees for Environmental Responsibility (PEER). The petition was titled: "Emergency petition to review the implementation of the delegated authority for sovereign submerged lands, to issue a protective order for personnel within the Sovereign Submerged Lands and Environmental Resource Permitting Program, to take other appropriate action to protect sovereign submerged lands, and to initiate rulemaking."

By letter dated October 5, 1998, Deputy Secretary Kirby B. Green, III, notified the Board of Trustees that the Department of Environmental Protection (DEP) was looking into the issues contained in the PEER petition and would prepare and submit a comprehensive report.

As detailed in the attached report, the DEP, as staff to the Board of Trustees pursuant to section 253.002, F.S., takes seriously its public trust responsibilities for the management of sovereign submerged lands, including aquatic preserves. The report provides information on each of the issues raised in the PEER petition.

(Report will be submitted separately.)