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AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

APRIL 13, 1999

Item 1 Minutes

Submittal of the Minutes of the February 23, 1999 Cabinet Meeting.

RECOMMEND ACCEPTANCE

Item 2 Barbara Lipchak, et al. Option Agreement/Florida Keys Ecosystem CARL Project

REQUEST: Consideration of an option agreement to acquire 60.31 acres within the Florida Keys Ecosystem CARL project from Barbara Lipchak, et al.

COUNTY: Monroe

LOCATION: Section 29, Township 66 South, Range 29 East

CONSIDERATION: $191,700

APPRAISED BY

REVIEW Hrabko APPROVED PURCHASE OPTION

NO. PARCEL ACRES (05/18/98) VALUE PRICE DATE

906004 Lipchak, et al 60.31 $213,000 $213,000 $191,700 150 days

3114 after BOT

approval

STAFF REMARKS: The Florida Keys Ecosystem CARL project is ranked number 4 on the CARL Priority Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. The project contains 7,033 acres, of which 1,155.91 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 5,816.78 acres or 83 percent of the project will remain to be acquired.

On March 12, 1996, the Board of Trustees exercised its authority under section 259.041(1), F.S., to waive the normal appraisal procedures and to substitute other reasonably prudent procedures. This enabled the Division of State Lands to utilize approved appraised values that were based on land use regulations in effect as of January 1, 1996, in Monroe County.

All mortgages and liens will be satisfied at the time of closing. In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing.

A title insurance policy, a survey, an environmental site evaluation and, if necessary, an environmental site assessment, will be provided by the purchaser prior to closing.

The unique pine rocklands and hardwood hammocks of the Florida Keys, forests of West Indian plants that shelter several extremely rare animals, are being lost to the rapid development of these islands. The Florida Keys Ecosystem CARL project will protect all the significant unprotected hardwood hammocks left in the Keys and many rare plants and animals, including the Lower Keys marsh rabbit and the Key deer. It will also help protect the Outstanding Florida Waters of the Keys, the recreational and commercial fisheries, and the reefs around the islands, and will give residents and visitors more areas in which to enjoy the natural beauty of the Keys.

This property will be managed by the Florida Game and Fresh Water Fish Commission for the conservation and preservation of the natural resources of the property.

Board of Trustees

Agenda - April 13, 1999 Page Two

Item 2, cont.

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 2, Pages 1-21)

RECOMMEND APPROVAL

Item 3 Barker Purchase Agreement/Coupon Bight/Key Deer CARL Project

REQUEST: Consideration of a purchase agreement to acquire 1.14 acres within the Coupon Bight/Key Deer CARL project from William K. Barker and Josephine C. Barker.

COUNTY: Monroe

LOCATION: Section 26, Township 66 South, Range 29 East

CONSIDERATION: $103,500

APPRAISED BY

REVIEW Marr APPROVED PURCHASE CLOSING

NO. PARCEL ACRES (04/27/98) VALUE PRICE DATE

906003 Barker/8816 1.14 $115,000 $115,000 $103,500 150 days

after BOT

approval

STAFF REMARKS: The Coupon Bight/Key Deer CARL project is ranked number 2 on the CARL Mega-Multiparcel Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. This project contains 1,827 acres, of which 624.87 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 1,200.99 acres or 66 percent of the project will remain to be acquired.

A title insurance policy, a survey, an environmental site evaluation and, if necessary, an environmental site assessment, will be provided by the purchaser prior to closing.

The subtropical pine forests of rapidly developing Big Pine Key and the islands around it are the home of the endangered Key deer as well as of many Caribbean plants found nowhere else in the country. Rich coral reefs and other hardbottom communities flourish in the shallow water around the islands. The Coupon Bight/Key Deer CARL project will protect the remaining undeveloped land on Big Pine and No Name Keys, without which the Key deer will not survive; protect the water quality of the Coupon Bight Aquatic Preserve and the other waters surrounding the islands; and provide the public an area to appreciate the unique natural world of this part of Florida.

Board of Trustees

Agenda - April 13, 1999 Page Three

Item 3, cont.

This parcel will be managed by the Division of Marine Resources as a part of Coupon Bight State Buffer Preserve.

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 1-15)

RECOMMEND APPROVAL

Item 4 SFWMD/MacArthur Foundation Acquisition/Managing Agency Designation/ Management Policy Statement Confirmation/Pal-Mar CARL Project

REQUEST: Consideration of (1) authorization to acquire an undivided 50 percent interest from the South Florida Water Management District in 7,740.94 acres within the Pal-Mar CARL project; (2) designation of the Florida Game and Fresh Water Fish Commission and the Department of Environmental Protection, Division of Recreation and Parks as managing agencies; and (3) confirmation of the management policy statement.

COUNTY: Martin

LOCATION: Sections 18 through 20, 29 and 30, Township 40 South, Range 41 East; Sections 13 through 15, 21 through 25 and 28, Township 40 South, Range 40 East; and Sections 23 through 25, Township 40 South, Range 39 East

CONSIDERATION: $1,850,000 (The Board of Trustees' share of the total purchase price of $4,386,000)

STAFF REMARKS: The Pal-Mar CARL project is ranked number 1 on the CARL Bargain/Shared List approved by the Board of Trustees on February 10, 1998, and qualifies for purchase under the Division of State Lands' Land Acquisition Workplan. The project contains 34,129 acres, of which 2,482 acres have been acquired by the South Florida Water Management District (District). After the Board of Trustees approves this agreement, 23,906.06 acres or 70 percent of the project will remain to be acquired.

On June 27, 1995, the Board of Trustees authorized the Department of Environmental Protection to enter into an acquisition agreement with the District to acquire the John D. and Catherine T. MacArthur Foundation (Foundation) ownership, located in the Pal-Mar CARL project, in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S. This acquisition agreement was amended on January 21, 1998, to remove the Palm Beach County portion of this project. Acquisition of the Foundation lands in Palm Beach County (County) is being pursued under a multi-party acquisition agreement with the County.

Pursuant to the terms of the acquisition agreement, the District contracted to purchase the Martin County portion of the Foundation ownership at 119 percent of the approved value. The Board of Trustees' purchase price will be 50 percent of the appraised value plus 50 percent of the costs incurred in the purchase of the property. Title to the property acquired will vest jointly in the Board of Trustees and the District, with each owning an undivided 50 percent fee simple interest. The District shall be reimbursed 50 percent of all costs associated with its attempt to acquire lands within the project, including all pre-acquisition and closing related costs.

Board of Trustees

Agenda - April 13, 1999 Page Four

Item 4, cont.

As provided for in the acquisition agreement, on February 11, 1999, the Governing Board of the District adopted Resolution No. 99-17, requesting reimbursement of the Board of Trustees' share of the purchase price for the Foundation parcel, reimbursement of 50 percent of its pre-acquisition costs and reimbursement of 50 percent of its closing costs (recording, title insurance policy and survey costs). Pursuant to the acquisition agreement, the pre-acquisition and closing costs will be reimbursed from CARL incidental expense funds. The District's resolution contains all of the assurances required by the acquisition agreement. The District's resolution states that the purchase contract is subject to various conditions which include: (a) the seller's right to remove fill from canals and canal banks for a period of ten years, provided the purchaser determines such fill is available for such purposes in accordance with the management plan prepared by the managing agency; (b) the granting of a flowage easement over tracts 100-010, 100-011 and 100-012 to the Pal-Mar Water Control District to fulfill the requirements to terminate a 1995 settlement agreement between the seller and the Pal-Mar Water Control District; (c) the seller's right to use the property as a gopher tortoise relocation site for a period of ten years for the benefit of any property owned by the seller and to the extent such relocation may be permitted by applicable governmental and quasi-governmental regulations; and (d) the seller's right to terminate if the District is unable to obtain a commitment from Martin County to assume the seller's obligation to maintain the Ranch Colony Canal.

The appraiser assumed the property contained 7,815.38 acres when the appraisal was amended on January 7, 1999. Based on preliminary survey data, the District's resolution dated February 11, 1999, stated there were 7,686.68 acres; however, final survey figures indicate the acreage to be 7,740.94 acres. The appraiser has reviewed the revised acreage figure and has determined that the appraised value remains unchanged.

Agriculture and residential development have reduced natural areas in the interior of southeast Florida to fragments. One of the largest and best fragments, part of what was once a transition zone between pine flatwoods and the sawgrass marshes of the Everglades, will be protected by the Pal-Mar project. This project, by protecting these flatwoods and marshes, will protect habitat for the endangered Florida panther and the snail kite, among other kinds of wildlife, will preserve natural lands linking the J. W. Corbett Wildlife Management Area with Jonathan Dickinson State Park, and will provide land to the public of this fast-growing region for hiking, bicycling, camping, hunting, and learning about the original nature of this part of Florida.

Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate the Florida Game and Fresh Water Fish Commission as the managing agency for the project area west of I-95, to be managed as an addition to the J. W. Corbett Wildlife Management Area; and the Department of Environmental Protection, Division of Recreation and Parks for the project area east of I-95, to be managed as a part of Jonathan Dickinson State Park.

Section 259.032(9)(b)2., F.S., requires that the Board of Trustees, concurrent with its approval of the initial acquisition agreement within a project, "evaluate and amend, as appropriate, the management policy statement for the project as provided by section 259.035, F.S., consistent with the purposes for which the lands are acquired." The management policy statement for this project was included in the 1998 CARL Annual Report adopted by the Board of Trustees on February 10, 1998. Staff recommends that the Board of Trustees confirm the management policy statement as written:

The primary goals of management of the Pal-Mar CARL project are: to conserve and protect environmentally unique and irreplaceable lands that contain native, relatively unaltered flora and fauna representing a natural area unique to, or scarce within, a region of this state or a larger geographic area; to conserve and protect significant habitat for native species or endangered and threatened Board of Trustees

Agenda - April 13, 1999 Page Five

Item 4, cont.

species; to conserve, protect, manage, or restore important ecosystems, landscapes, and forests, in order to enhance or protect significant surface water, coastal, recreational, timber, fish or wildlife resources which local or state regulatory programs cannot adequately protect; and to provide areas, including recreational trails, for natural-resource-based recreation.

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 4, Pages 1-40)

RECOMMEND APPROVAL

Item 5 Kirk Option Agreement/Paynes Prairie Project

REQUEST: Consideration of an option agreement to acquire 9.9 acres within the Paynes Prairie Division of Recreation and Parks' Additions and Inholdings project from Nancy C. and William L. Kirk, Jr.

COUNTY: Alachua

LOCATION: Section 22, Township 10 South, Range 20 East

CONSIDERATION: $59,500

APPRAISED BY

REVIEW Candler APPROVED PURCHASE OPTION

NO. PARCEL ACRES (06/07/96) VALUE PRICE DATE

906002 Kirk/38 9.9 $59,500 $59,500 $59,500 150 days

after BOT

approval

STAFF REMARKS: The Paynes Prairie project has been identified on the Division of Recreation and Parks' Additions and Inholdings List. This agreement was negotiated by the Division of State Lands on behalf of the Division of Recreation and Parks (DRP) under the State Parks Additions and Inholdings Preservation 2000 program. The project contains 3,495 acres, of which 253.2 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 3,231.9 acres or 92 percent of the project will remain to be acquired.

A title insurance policy, a survey, an environmental site evaluation and, if necessary, an environmental site assessment, will be provided by the purchaser prior to closing.

This property will be managed by the DRP as an addition to the Paynes Prairie State Preserve.

This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

Board of Trustees

Agenda - April 13, 1999 Page Six

Item 5, cont.

(See Attachment 5, Pages 1-28)

RECOMMEND APPROVAL

Item 6 Flesher Option Agreement/Topsail Hill State Preserve Project

REQUEST: Consideration of an option agreement to purchase the leasehold interest of Alfred Flesher and Dorothy Jean Flesher in property located within the Topsail Hill State Preserve Division of Recreation and Parks' Additions and Inholdings project.

COUNTY: Walton

LOCATION: Section 32, Township 02 South, Range 20 West

CONSIDERATION: $20,353.75

APPROVED

APPRAISED BY VALUE LEASEHOLD

REVIEW Fruitticher (exclusive of PURCHASE OPTION

NO. PARCEL (10/16/98) improvements) PRICE DATE

906001 Flesher/1004 $86,000* $21,425 $20,353.75 150 days after

BOT approval

*Includes value of leasehold and park home

STAFF REMARKS: This acquisition, located within the Topsail Hill State Preserve, was negotiated by the Division of State Lands on behalf of the Division of Recreation and Parks (DRP) under the State Parks' Additions and Inholdings Preservation 2000 program.

On June 24, 1998, the Board of Trustees approved a contract to purchase the Emerald Coast RV Park (RV Park), subject to seventeen twenty-year leases (initial lease term of three years, renewable annually for seventeen additional years) to third parties which were not terminable prior to the state's acquisition of the RV Park. Subsequent to the approval of the June 24, 1998 item, it was discovered that there were eighteen leases instead of seventeen leases. The leases, which are now situated on state-owned land, grant exclusive use of the leased property to the leaseholders. Upon acquisition of the fee title to the land, the Board of Trustees assumed the role of lessor under these leases. Prior to acquisition by the state, the leaseholders had placed fixed improvements (park homes) on the leased properties, in the form of modular structures, porches, sheds, carports and landscaping. The DRP, the managing agency, does not intend to extend the leases beyond their present twenty-year term. The Flesher lease began in 1994. The leasehold interest will be acquired using P2000 funding. Because the improvements are considered to be the personal property of the tenants, the DRP will purchase the park home from its fixed capital outlay appropriation for Topsail Hill State Preserve ($61,346.25 for the Flesher park home, which is 95 percent of the appraised value). The improvement will be managed as a rental unit by the DRP as part of the RV Park. After the Board of Trustees approves this agreement, fifteen leaseholds will remain to be acquired.

All mortgages and liens will be satisfied at the time of closing. The DRP will furnish an endorsement to the Board of Trustees' existing title insurance policy deleting any current exception related to the leasehold and park home. In the event the title insurance search, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing.

Board of Trustees

Agenda - April 13, 1999 Page Seven

Item 6, cont.

This property will be managed by the DRP as an addition to the Topsail Hill State Preserve.

The acquisition of this leasehold is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 6, Pages 1-37)

RECOMMEND APPROVAL

Item 7 University of Central Florida Foundation, Inc., Option Agreement/BOR/UCF

REQUEST: Consideration of a "best estimate" option agreement to acquire 133 acres for the benefit of the Florida Board of Regents (BOR) and the University of Central Florida from the University of Central Florida Foundation, Inc.

COUNTY: Orange

APPLICANT: University of Central Florida

LOCATION: Section 09, Township 22 South, Range 31 East

CONSIDERATION: $155,000 Best Estimate (To be appraised by the BOR)

STAFF REMARKS: This acquisition was negotiated by the University of Central Florida (UCF). Funds for this parcel were appropriated by the 1997-1998 Florida Legislature and are still available.

In order for the St. Johns River Water Management District (District) to approve the UCF master surface water management plan for the main campus, UCF is required to set aside a permanent reserve of land to compensate for the impact of future development on campus wetlands and other environmentally sensitive areas. This parcel, which is primarily a wetland area, will satisfy the compensation/mitigation requirements of the District.

Section 240.209(9)(b), F.S., authorizes the BOR to negotiate and enter into option agreements prior to obtaining an appraisal. The negotiation was based on an appraisal obtained by the seller. Pursuant to section 253.025, F.S., the seller's appraisal cannot be used to determine the approved value. BOR is currently obtaining the requisite appraisal. In the event the appraisal obtained by BOR is less than the option amount of $155,000, the option agreement provides for the purchase price to be adjusted downward.

All mortgages and liens will be satisfied at the time of the closing. In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing.

A survey, an environmental site assessment and a title insurance policy will be provided by the seller prior to closing.

This parcel will be managed by UCF as a part of the existing campus through a lease to the Florida Board of Regents.

Board of Trustees

Agenda - April 13, 1999 Page Eight

Item 7, cont.

This acquisition is consistent with section 187.201(01), F.S., the Education section of the State Comprehensive Plan.

(See Attachment 7, Pages 1-17)

RECOMMEND APPROVAL

Item 8 Estero Bay CARL Project/Sahdev Corporation Acquisition/Delegation

REQUEST: Consideration of a request to (1) delegate authority to and authorize the Director of the Division of State Lands to extend bona fide offers, negotiate and approve counteroffers, and execute a contract, provided that the contract does not exceed the appraised value, for the purchase of approximately 1,245 acres of land owned by the Sahdev Corporation and located within the Estero Bay CARL project; and (2) waive the confidentiality of appraisal requirement contained in section 259.041(7)(e), F.S.

COUNTY: Lee

LOCATION: Sections 19, 29 and 30, Township 46 South, Range 25 East

STAFF REMARKS: The Estero Bay CARL project is ranked number 11 on the CARL Priority Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' (DSL) Land Acquisition Workplan. The project contains 15,784 acres, of which 5,494 acres have been acquired or are under agreement to be acquired. No lands have been acquired in the project since 1988. After the Board of Trustees delegates authority to acquire this property, 9,045 acres or 57 percent of the project will remain to be acquired.

The Estero Bay project is a "coastal resource," a resource identified in the 1997 Preservation 2000 Program Remaining Needs and Priorities Report as being inadequately represented in the state's public land inventory. One of the coastal resource categories focuses on projects with buffers to mangrove swamps that have a shoreline length of at least one mile and are 1,000 acres in size. The Sahdev parcel meets these criteria.

The Sahdev parcel is the highest acquisition priority within the area of the Estero Bay CARL Project. It contains mangrove fringe and forest, saltwater marsh, salttern, pine flatwoods, palmetto prairie and high quality sand scrub. In addition to the nesting, feeding, roosting, cover and migration resting areas these communities provide, they also provide nutrients to the bay, contributing substantially to its biological productivity, and, through buffering, help maintain high water quality and habitat in the Estero Bay Aquatic Preserve. Estero Bay is the state's first aquatic preserve, designated in 1966.

Although permitting requirements reduce impacts to acceptable levels, they do not eliminate impacts. Water quality and habitat degradation resulting from the cumulative impacts associated with upland development within the Estero Bay watershed is a focus of the Programmatic Environmental Impact Statement currently being conducted by the U. S. Army Corps of Engineers in Southwest Florida.

The property also contains three vegetative communities that are classified as Rare and Unique Uplands under the Lee County Comprehensive Plan. These include tropical hardwoods, cabbage palm hammock and sand scrub. A 1988 report to Lee County by Godschalk and Board of Trustees

Agenda - April 13, 1999 Page Nine

Item 8, cont.

Associates states these "native upland habitats currently exist in the coastal zone on a very limited basis because of over development, geographic limitations, or a combination of both." The 220,148-acre study also showed that the 13,494 acres of native upland habitats documented within the study area "were never very abundant, however, recent development activities have caused their acreages to dwindle. Without conservation, these habitats will probably disappear from private lands in the next decade." Listed species documented on the site include little blue heron, gopher tortoise, southern bald eagle (active nest), Florida black bear and Florida coontie. Numerous other listed species potentially occur on the site.

The parcel would connect two portions of the Estero Bay State Buffer Preserve to create a contiguous boundary of state-owned land around the bay, adding another two miles of coastal mangrove connection on the bay and approximately one mile of shoreline on the Estero River. With 500 acres of uplands on this parcel, acquisition would allow the Bureau of Coastal and Aquatic Managed Areas to manage a large, continuous land area with a greater potential for recreational opportunities and increased public access and awareness.

The Sahdev parcel is in imminent danger of development and must be acquired to protect this unique resource. Negotiations with the owner began five months ago. The owner has advised DSL staff that they are considering other offers from major developers which significantly exceed the state's appraised value for the property. The Department of Environmental Protection (DEP) is seeking authority to extend bona fide offers as a final step in attempting to reach an agreement with the seller on a voluntary basis.

One of the prerequisites to the Board of Trustees' voting to direct the DEP to exercise the power of eminent domain is the requirement that at least two bona fide offers to purchase land through negotiations must have been made and, notwithstanding those offers, an impasse between the state and the landowner has been reached. It has been judicially determined that offers made through the use of option agreements "subject to approval" by the Board of Trustees are not considered bona fide offers. Consequently, in order to satisfy the bona fide offer requirement, staff is recommending that the Board of Trustees substitute the alternative procedure of delegating authority to the Director of the Division of State Lands (Director) to make bona fide offers to Sahdev Corporation and execute purchase agreements, including the authority to negotiate and approve counteroffers, provided that such offers and counteroffers do not exceed the appraised value. This procedure would enable the DSL to make multiple offers, if necessary, without seeking additional approvals. Pursuant to section 259.041(1), F.S., the Board of Trustees may substitute other reasonably prudent procedures provided the public's interest is reasonably protected. By delegating authority to the Director, and limiting the offers in the proposed manner, DEP staff believes the public's interest is reasonably protected.

In an effort to encourage the owner to sell, DSL staff would like to share information from the appraisals. This requires the Board of Trustees to waive the confidentiality provision of section 259.041(7)(e), F.S., which can be done as provided for in section 259.041(1), F.S.

Estero Bay is one of the most productive estuaries in the state. Its mangroves shelter important nesting colonies of water birds, and feed and protect many aquatic animals. These animals, in turn, are the foundations of a commercial and sport fishery. The uplands around the bay include the largest rosemary scrub left in southwest Florida. Important archeological remains of the Calusa Indians dot the area. The Estero Bay CARL project will protect the bay's water quality, its native plants and animals, its archeological sites, and will improve recreational opportunities to the people of the rapidly growing Fort Myers area.

This property will be managed by the Division of Marine Resources as part of the Estero Bay State Buffer Preserve.

Board of Trustees

Agenda - April 13, 1999 Page Ten

Item 8, cont.

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 8, Pages 1-8)

RECOMMEND APPROVAL

Item 9 Surplus Land Sale/Duval County/Julien P. Benjamin, Jr.

DEFERRED FROM THE MARCH 23, 1999 AGENDA

REQUEST: (1) Consideration of bids submitted for a surplus land sale; and (2) acceptance of a bid submitted by Julien P. Benjamin, Jr., in the amount of $251,643.

COUNTY: Duval

LOCATION: Section 11, Township 02 South, Range 28 East

CONSIDERATION: $251,643, to be deposited in the Internal Improvement Trust Fund and/or CARL Trust Fund

STAFF REMARKS: The subject surplus property includes a 5,000 square-foot one-story dormitory style building with two out-buildings and sits on 7.67 acres. The primary building will require extensive repair and renovation and has been valued by the appraiser as a "shell." No value was assessed to the two outbuildings because of their poor condition. Historically the property was used by the Department of Health and Rehabilitative Services (now Department of Juvenile Justice) as a home for juvenile delinquent girls. The Department of Juvenile Justice determined that it had no further use for the property and so notified the Department of Environmental Protection, Division of State Lands (DSL) requesting a release from its lease.

State agencies and local governments were duly notified of the availability of the property and sale of the property was delayed for several months on two occasions when the City of Jacksonville considered leasing the property and the Department of Juvenile Justice reconsidered its need for the property. In the end, the property was returned to the surplus process.

On November 16, 1995, the Land Management Advisory Council designated the property as surplus. In September 1998, staff advertised the property for sale and only one bid, in the amount of $50,000, was received. On October 13, 1998, the Board of Trustees rejected this bid. In February 1999, DSL again advertised the property for sale and the following is a tabulation of the bids received and considered by the advertised deadline:

OFFER SUBMITTED BY AMOUNT OF BID

Julien P. Benjamin, Jr. $ 251,643

John W. McCarthy $ 180,566

Gregory Andriotis $ 82,000

The market value of the property on May 15, 1996, as appraised by Duncan R. Ennis, MAI, State Certified General Appraiser, was $204,000. The Bureau of Appraisal did not recommend Board of Trustees

Agenda - April 13, 1999 Page Eleven

Item 9, cont.

updating the appraisal since land values in the area have not increased more than two percent to three percent since the 1996 appraisal; however, the market value was adjusted from $204,000 to $208,580 based upon a new survey which reflected an acreage of 7.67 acres, versus the 7.398 acres used during the appraisal process.

A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has determined that surplus land sales are not subject to the local government planning process.

(See Attachment 9, Pages 1-24)

RECOMMEND APPROVAL

Item 10 Jefferson County Conveyance

REQUEST: Consideration of a request to convey 2.41 acres, more or less, of state-owned land to Jefferson County.

COUNTY: Jefferson

Deed No. 29989

APPLICANT: Jefferson County

LOCATION: Section 31, Township 02 North, Range 05 East

STAFF REMARKS: On July 6, 1955, Jefferson County (County) deeded 2.52 acres, more or less, referred to as the "reverter parcel," to the State of Florida for the use and benefit of the State Road Department (Department). The deed specified that if the Department ever abandoned the reverter parcel, title would revert to the County. In 1967, the reverter parcel was conveyed to the Board of Trustees by the Department pursuant to chapter 67-269, General Laws of 1967. The 1967 conveyance included an adjacent one-acre parcel acquired by the Department from a private individual. The deed for the one-acre parcel did not include a reverter clause. Until recently, the Department of Transportation (DOT), successor to the Department, managed both the reverter parcel and the adjacent one-acre parcel as a maintenance yard.

DOT recently moved its maintenance yard to a site in Gadsden County. It has requested that the Board of Trustees convey the reverter parcel to the County, less a 0.09-acre tower site and access easement that DOT will continue to use. The County has requested a lease on the adjacent one-acre parcel and will manage it in conjunction with the reverter parcel.

In 1998, the Board of Trustees acquired from the County a parcel of land located to the north of and adjacent to the DOT maintenance yard for a Department of Juvenile Justice (DJJ) facility. During the acquisition process it was discovered that a heavy gauge barbed wire fence and shed encroached on the DOT maintenance yard, affecting 0.02 acre of the reverter parcel and 0.04 acre of the one-acre parcel. The County subsequently issued a county deed to the Board of Trustees for the 0.02-acre encroachment as part of the 1998 DJJ acquisition; therefore it is not included in the land being returned to the County. The county also issued a county deed for the 0.04-acre encroachment, and it has been included in the lease to DJJ.

Board of Trustees

Agenda - April 13, 1999 Page Twelve

Item 10, cont.

A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has determined that land conveyances are not subject to the local government planning process.

(See Attachment 10, Pages 1-9)

RECOMMEND APPROVAL

Item 11 63rd Street Associates, Ltd., Release of Restrictions/Conveyance

REQUEST: Consideration of a request to (1) release the restrictions contained in Dedication No. 23589 (1429-13); (2) waive the restrictive covenant requirement of section 253.12(2)(b)3., F.S.; and (3) convey 2.77 acres of filled formerly sovereignty submerged lands in Dade County to 63^rd Street Associates, Ltd.

COUNTY: Dade

Dedication No. 23589 (1429-13)

Deed No. 30241 (4868-13)

APPLICANT: 63^rd Street Associates, Ltd.

LOCATION: Sections 11 and 14, Township 53 South, Range 42 East

CONSIDERATION: Appraised market value, to be deposited in the Internal Improvement Trust Fund

STAFF REMARKS: On September 17, 1963, the Board of Trustees approved the dedication of 2.77 acres of submerged land in Indian Creek to St. Francis Hospital, Inc. (St. Francis) by Dedication No. 23589 (1429-13). Use of the property was restricted to a vehicular parking lot under supervision of and to serve the hospital. The dedication further specified that in the event St. Francis or its successors failed to use said land for said purpose and for a period of three consecutive years shall fail and neglect to maintain and use the same for said purposes, or if the said land shall be used for any purpose not herein specifically authorized, the dedication herein shall, at the option of said Trustees, be subject to revocation upon sixty days notice in writing by the Trustees to St. Francis. The submerged lands were subsequently filled and used for a parking lot. In February 1999, the filled parcel and adjacent privately-owned land on which the hospital is located were purchased by 63^rd Street Associates, Ltd. (Developer). The Developer proposes to use the former hospital site for commercial and residential purposes. To do so requires release of the restrictions from the dedication. Since dedications do not convey fee title, the Developer must also purchase the 2.77-acre parcel from the Board of Trustees.

Pursuant to section 18-2.018(3)(e)5., F.A.C., deed or dedication restrictions or reverters shall be released to the record owner(s) if the Board of Trustees determines that there is no longer any present or future public purpose for retaining them and that the affected parcel contains no fragile environmental, historical, archaeological or recreational resources which would require protection through continued enforcement of the restrictions or reverter. State agencies and the county were notified of the application. No objections were received, and no agency expressed any interest in managing this parcel or gave any reason for maintaining state ownership of the parcel.

Pursuant to section 18-21.013(1), F.A.C., applications to purchase lands riparian to uplands may be made by the riparian owners only. The Developer is the upland riparian owner.

Board of Trustees

Agenda - April 13, 1999 Page Thirteen

Item 11, cont.

Pursuant to section 253.115(5)(b), F.S., the notice and publication requirements of section 253.115, F.S., do not apply to any conveyance of land lying landward of the line of mean high water, which land does not exceed five acres in area.

Pursuant to section 253.12(2)(a), F.S., the Board of Trustees may sell submerged lands if determined by the Board of Trustees to be in the public interest. Staff believes that the proposed conveyance is in the public interest in light of the following: (1) no agency responded with a reason for retaining state ownership; (2) the submerged lands have been filled and the parcel now functions as a paved parking lot and has no natural resource value; and (3) it would not be feasible to restore the land to its previously unfilled state.

Pursuant to section 253.12(2)(b)3., F.S., the Board of Trustees may convey submerged lands to an applicant who does not have before the Board of Trustees an application for a permit to dredge or fill lands if, as a condition of the conveyance, dredging is prohibited except for navigation purposes. The Board of Trustees may waive such restrictive covenant when such waiver is in the public interest. Staff believes that the waiver is in the public interest because the current bulkhead line was established at the time of the original dedication and the parcel has already been filled to the new bulkhead line.

If the release and subsequent conveyance are approved by the Board of Trustees, the Department of Environmental Protection, Division of State Lands will contract for an appraisal of the property. The Developer is prepared to pay the current appraised market value for the land.

During the course of reviewing the maps and survey for the filled land, a scriveners error was noted. The parcel is located in sections 11 and 14, not just section 11. The legal description in the proposed Release of Restrictions mirrors the legal description in the original dedication; however, the legal description in the deed has been corrected to reflect the additional section.

A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has determined that the proposed action is not subject to the local government planning process.

(See Attachment 11, Pages 1-15)

RECOMMEND APPROVAL

Item 12 Naples Bay Development, Inc., Recommended Consolidated Intent

REQUEST: Consideration of an application for modification of an existing 25-year sovereignty submerged lands lease containing 17,271 square feet, more or less, to: (1) increase the number of wetslips from five to nine; (2) modify an existing special lease condition; and (3) add three special lease conditions, all in conjunction with the construction and operation of a 178-unit dry boat storage facility.

COUNTY: Collier

Lease No. 111616199

ERP No. 11-0142910-001

APPLICANT: Naples Bay Development, Inc., a Florida corporation

Board of Trustees

Agenda - April 13, 1999 Page Fourteen

Item 12, cont.

LOCATION: Section 03, Township 50 South, Range 25 East, in Naples Bay, Class II waters, within the local jurisdiction of the City of Naples.

Aquatic Preserve: No

Manatee Area idle/slow speed/caution zone: Yes

Outstanding Florida Waters: No

CONSIDERATION: $1,996.53 as the initial lease fee computed at the base rate of $0.1156 per square foot, for the 17,271 square foot area. 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 annual rental value pursuant to section 18-21.011, F.A.C. Lease fees are current through May 1999.

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, Florida Statutes (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 land 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 a wetland 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 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 lessee is proposing to modify an existing fiveslip commercial docking facility by: (1) increasing the number of wetslips from five to nine within the existing lease area; (2) modifying an existing special lease condition; and (3) adding three special lease conditions, all in conjunction with the construction and operation of a 178-unit dry storage boat facility. The lessee rents wetslips and will sell dry slips in the upland boat storage facility, therefore, the project is a revenue generating/income related activity, pursuant to section 18-21.003(44), F.A.C., and use of the submerged lands requires a lease, pursuant to section 18-21.005(1)(b)2, F.A.C.

The existing dock access walkway will be removed and two 28-foot long by 18-foot wide launching (fork lift) platforms, one 28-foot long by four-foot wide access ramp, and two 16-foot long by four-foot wide access ramps will be constructed. The northern 90-foot long by seven-foot wide floating dock will be moved seven feet south of the existing location. Two existing wetslips will be used for large (45 feet to 70 feet long) vessels, and seven wetslips will be used for staging (in/out) operations for vessels 18 feet to 30 feet long. Sewage pumpout will be provided for vessels stored in the dry storage facility and permanent pumpouts will be provided at the docks for the two large vessel slips.

On May 14, 1991, the Board of Trustees approved a 25-year sovereignty submerged lands lease containing 8,245 square feet, more or less, to Andrew B. Wolfe, Trustee, for a private Board of Trustees

Agenda - April 13, 1999 Page Fifteen

Item 12, cont.

yacht club docking facility. The lease authorized an existing 12-slip docking facility to be replaced with a five-slip docking facility on sovereignty submerged lands. An additional 28 wet slips were proposed to be built in a manmade basin that would have been created from the lessee's uplands, but this was never done.

Under a delegation of authority (DOA), the lease was modified by DEP on July 20, 1995, to increase the lease area from 8,245 square feet to 17,271 square feet. The regulatory permit (no. 111616199) issued by the former Department of Environmental Regulation (DER) was modified on July 19, 1995, to decrease the total wetslips from 33 to five and totally eliminate the upland dredging proposed to create a manmade basin.

A second lease modification was done by DEP, under a DOA, on January 6, 1997, to change the name of the lessee to James F. Mann, Jr., James W. Amburn and J. Stephen Crawford, Trustees of the Naples Bay Projects Land Trust.

A third lease modification was done by DEP, under a DOA, on December 30, 1997, to: (1) change the name of the lessee to Naples Bay Development, Inc., a Florida corporation; and (2) change the use of the lease area from a private yacht club docking facility to the mooring of recreational vessels in conjunction with an upland private yacht club. Both of these modifications were minor, technical changes to the lease.

The current modified lease request was not required to be noticed due to an exemption for lease modifications, pursuant to section 253.115(5)(i), F.S.

An October 19, 1998 inspection showed that the applicant is in compliance with the existing lease. All fees are current through May 1999.

The existing lease prohibits fueling facilities and liveaboards, but authorizes a sewage pumpout facility. The environmental resource permit will authorize overnight occupancy of vessels moored at the two large vessel slips only. Those two slips will be the northern and southern slips, indicated on the permit drawing (sheet 2 of 3) and the survey. Therefore, the lease will be modified by inclusion of the following two special lease conditions to authorize vessels in these two slips to be occupied on an overnight basis:

If the lessee allows mooring at the leased facility of vessels occupied by a person or persons on an overnight basis, the lessee shall provide and make available to such vessels an operational and well-maintained sewage pumpout facility acceptable to the Department of Environmental Protection or local government, whichever entity applies the more stringent criteria.

Only the two large vessel wetslips of the nine total wetslips may be used by vessels occupied by a person or persons on an overnight basis.

The environmental resource permit will also require permanent direct sewage hookup to those two slips for both sewage and gray water discharges. The environmental resource permit will also allow a fueling facility to be constructed on the lessee's upland property. However, fueling facilities within the lease area will remain prohibited in the modified lease.

Recommendations from DEP's Division of Marine Resources regarding manatee protection include requiring the lessee to: (1) comply with the standard manatee protection construction conditions for all in-water construction; and (2) install and maintain permanent manatee informational displays and awareness signs. Item (1) will be addressed in the environmental resource permit. Item (2) is addressed by an existing lease condition which requires the lessee Board of Trustees

Agenda - April 13, 1999 Page Sixteen

Item 12, cont.

to maintain the existing manatee informational displays throughout the term of the modified lease and any subsequent renewals.

Existing special lease condition 28.b. requires the lessee to ensure that the purchaser of any slip at the docking facility enters into a signed agreement, between the lessee and the purchaser, stating that the slip purchaser agrees to comply with slow speed zones recommended by the Division of Marine Resources for weekends and holidays from marker 32 to marker 21, and idle speed zones seven days a week from marker 21 to marker 10 as recommended by the city council. After that condition was included in the lease, Collier County adopted a manatee protection plan that has been approved by the DEP Division of Marine Resources. Therefore, existing standard lease condition 28.b. is recommended to be modified as follows:

The lessee shall ensure that the purchaser of any dry slip and/or renter of any wet slip at the facility enters into a signed agreement, between the lessee and the purchaser and/or renter, stating that they agree to comply with the speed zones contained in the Department of Environmental Protection (DEP) approved Collier County Manatee Protection Plan or any revisions adopted by Collier County and approved by DEP and/or any speed zones established by the City of Naples and approved by DEP.

The upland dry storage boat slips have been submitted to condominium form of ownership, thereby creating "boataminiums." The draft condominium (boataminium) documents have been reviewed and approved by the DEP General Counsel. However, a special lease condition will be included to require the lessee to provide DEP a copy of the recorded (signed and notarized) condominium documents within 10 days after recording to ensure that no changes have been made to the documents approved by DEP. Furthermore, the lease will contain the new standard lease condition specifically prohibiting the inclusion of sovereignty submerged lands or the leasehold interest in sovereignty submerged lands in property subjected to any type of condominium ownership.

A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs determined that the plan is in compliance. The proposed action is consistent with the adopted comprehensive plan according to a letter received from the City of Naples.

(See Attachment 12, Pages 1-32)

RECOMMEND APPROVAL SUBJECT TO THE MODIFIED SPECIAL LEASE CONDITION, THE NEW SPECIAL LEASE CONDITIONS, AND PAYMENT OF $1,996.53

Item 13 Enforcement/Compliance Strategy for Boca Ciega Bay and Pinellas County Aquatic Preserves

REQUEST: Consideration of an Enforcement/Compliance Strategy for docking facilities in the Boca Ciega Bay and Pinellas County Aquatic Preserves that are unauthorized under the provisions of rule 18-20.019(11), F.A.C.

COUNTY: Pinellas

APPLICANT: Department of Environmental Protection (DEP)

Board of Trustees

Agenda - April 13, 1999 Page Seventeen

Item 13, cont.

LOCATION: Boca Ciega Bay and Pinellas County Aquatic Preserves

STAFF REMARKS: Chapter 18-20, F.A.C., (Aquatic Preserves) was amended in 1997 to incorporate new standards and criteria for urban and freshwater preserves. These revisions included a new section 18-20.019, F.A.C., which addresses standards and criteria specific to docking facilities in the urbanized Boca Ciega Bay and Pinellas County Aquatic Preserves. The new rule included special provisions for authorizing a large number (now estimated at 1,000) of docking facilities that had been built in the preserves in conformance with a Pinellas County permit, but without the requisite authorization from the Board of Trustees and the DEP. Rule 18-20.019(11), F.A.C., provides that those private residential multi-slip and commercial, industrial, or other revenue generating/income-related docking facilities constructed prior to September 29, 1997, could be "authorized" if the owner:

registered with the DEP on or before May 1, 1998, by providing a copy of the Pinellas County permit and a statement of intent to apply for a lease of sovereignty submerged lands by May 1, 1999;
submitted a complete application for lease by May 1, 1999; and
paid standard lease fees, including lease fees in arrears from April 9, 1991, or the documented date of the commencement of construction, whichever is later.

If the owner did not comply with the above requirements, the docking facility would be considered "unauthorized." This provided a process that allows existing structures that were built in conformance with a Pinellas County permit to remain without having to meet the dimensional and siting requirements of chapter 18-20, F.A.C., or the public interest requirements of section 258.42(1)(a), F.S., and rule 18-20.004(2), F.A.C. It was the intent of this process, including the rule deadlines, to bring the unauthorized structures under lease in an expedited manner that would be fair to applicants and without causing an unreasonable workload on staff of the DEP's Southwest District Office.

A rule challenge delayed the effective date of the rule by five months (until September 27, 1997). This left only a short time period for the DEP to provide notice to the public about the May 1, 1998 registration deadline. On January 30, 1998, the DEP mailed approximately 5,600 notices to waterfront property owners who received a Pinellas County permit (as determined from a database provided by Pinellas County). The majority of the recipients of this notice had never made application to the DEP for the required sovereignty submerged lands authorization. In addition, a press release describing the registration and application requirements was distributed in February 1998, and further notice was published in the St. Petersburg Times on April 22, 1998.

Approximately 400-500 registrations were received by the May 1, 1998 deadline. Of these, only 127 actually needed a lease. A review of the registrations indicated that most of the docking facilities were not located on sovereignty submerged lands, or otherwise did not require a lease. DEP accepted and continued to process registrations received after this date because of concerns over the short time period for noticing the new registration provisions and a belief that the late registrants were making a good faith effort to bring their docking facilities under lease by the May 1, 1999 deadline. However, as time went on, staff became concerned with the number of late registration requests and the "fairness" of treating late registrants in the same manner as those who had met the registration deadline. Staff also became concerned that a large number of affected upland owners had not yet received notice or have simply chosen to not register their docking facility or apply for the required lease. In an attempt to provide affected upland owners with additional notice and time to register, the DEP published a second notice in the St. Petersburg Times on November 30, 1998, which encouraged continued "registration" by December 31, 1998.

Board of Trustees

Agenda - April 13, 1999 Page Eighteen

Item 13, cont.

To date, a total of 26 registrations have been received after the May 1, 1998 deadline, a total of 153 facilities have applied for a lease, and an additional 14 applications for lease are expected in the near future. However, based on field inspections and the number of issued Pinellas County permits, staff believes that there may be as many as 850 additional docking facilities in Pinellas County that still need to be identified and brought under lease. Therefore, staff is of the opinion that those who missed the registration or lease application deadlines in 18-20.019(11), F.A.C., need to be processed according to the following Enforcement/Compliance Strategy. In addition, because of the large numbers of apparently unauthorized structures, staff believes additional notices in the local media, coupled with enhanced public outreach activities, are needed to advise the public of this proposed strategy. Staff also believes the public's voluntary compliance with this strategy could be enhanced if the deadline for making a lease application was extended from the current rule deadline of May 1, 1999, to June 30, 1999.

ENFORCEMENT/COMPLIANCE STRATEGY

Owners of private residential multi-slip and commercial, industrial, or other revenue generating/income related docking facilities in Pinellas County who would have qualified for the registration program in rule 18-20.019(11), F.A.C, but failed to register by the May 1, 1998 deadline would be considered "Grandfatherable Facilities." Owners who would not have qualified for the registration program because they did not have or were not in conformance with a Pinellas County permit would be considered "Unauthorized Facilities."

Grandfatherable Facilities

Upland owners who apply for a lease on or before June 30, 1999, will be treated the same as those facilities that registered by the May 1, 1998 deadline. This will involve an estimated 40 (26 applications already received; 14 additional expected in the near future) structures that would have qualified, but missed the rule registration deadline. These owners will be required to pay lease fees in arrears, without interest, from April 9, 1991, the documented date of the commencement of construction, or the date the upland owner acquired title to the property, whichever is later.

Upland owners who apply for a lease after June 30, 1999, will be required to pay lease fees in arrears, with interest, back to April 9, 1991, the date of construction of the docking facility, or the date the owner acquired title to the property, whichever is later.

In both cases above, the upland owner will not be required to modify the docking facility to meet current rule requirements, or to make a public interest demonstration, if it is in compliance with its Pinellas County permit. Sketches for these structures also will be acceptable in lieu of a survey, as was allowed for the past statewide grandfather registration program. In addition, provisions for reducing interest assessments and for extending the time period for payment of lease fees and interest, where appropriate, may be considered in accordance with rule 18-21.011(1)(b)11, F.A.C.

Unauthorized Facilities

Unauthorized facilities will be required to pay lease fees in arrears, with interest, back to September 30, 1984, and administrative fines may be assessed, if applicable, in accordance with section 253.04, F.S., and rule 18-14, F.A.C. In addition to payment of fees and fines, these facilities must be modified, as needed, to comply with current rule requirements, and applicants will have to meet the other standard requirements for a lease under chapters 18-20 and 18-21, including the requirement to demonstrate that the docking facility is in the public interest. Board of Trustees

Agenda - April 13, 1999 Page Nineteen

Item 13, cont.

Provisions for reducing lease fees in arrears and interest assessments, and for extending the time period for payment of these assessments, where appropriate, may be considered in accordance with rule 18-21.011(1)(b)11, F.A.C.

Staff is of the opinion that the proposed Compliance/Enforcement Strategy is equitable, provides incentives to those late registrants who are making a good faith effort to come under lease, and avoids the expenditure of significant staff resources in dealing with "grandfatherable facilities" under traditional enforcement remedies, but includes significant penalties for those owners who continue to violate the Board of Trustees' rules. This strategy is critical to staff in the DEP's Southwest District Office because of the large number of unauthorized structures which still remain in the Boca Ciega Bay and Pinellas County Aquatic Preserves. Without a streamlined strategy that addresses this issue, staff is very concerned that they will be overloaded with the workload associated with traditional means for resolving unauthorized structures.

RECOMMEND APPROVAL

Item 14 PEER Status Report

DEFERRED FROM THE FEBRUARY 23, 1999 AGENDA

REQUEST: Consideration of (1) a progress report and the Department of Environmental Protection recommendations from the discussions held to evaluate the issues contained in a petition filed by the Public Employees for Environmental Responsibility (PEER); and (2) adoption of a Third Amended Final Order that would dismiss the petitions filed by PEER and Save the Manatee Club, Inc., (SMC) and direct staff to initiate rule development by June 4, 1999, to determine to what extent, if any, the rule chapters 18-20 and 18-21, F.A.C., including the delegation of authority provisions of rule 18-21.0051, should be amended to address issues raised by PEER and SMC, and to address other issues concerning aquatic preserves and the rules governing the management of other sovereignty submerged lands. The Third Amended Final Order would also direct staff to implement certain agreements and commitments arising from discussions held with PEER, SMC and others, including Cabinet Aides.

APPLICANT: Department of Environmental Protection (DEP)

STAFF REMARKS: The Board of Trustees, at its December 8, 1998 meeting, accepted DEP's recommendation to convene a group of interested parties to evaluate the issues raised by PEER in its September 14, 1998 petition, and to report back to the Board of Trustees on the results of the discussions held between the parties. 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" (copy previously provided). SMC filed a petition to intervene in the proceedings.

Part II of the Proposed Actions of the PEER petition requested that the Board of Trustees initiate rulemaking to amend chapters 18-21, F.A.C, Sovereignty Submerged Lands Management, and 18-20, F.A.C., Florida Aquatic Preserves, to amend the delegations of authority for DEP and the Water Management Districts (WMDs) to process applications requesting permission to use sovereignty submerged lands, and to amend other rules pertaining Board of Trustees

Agenda - April 13, 1999 Page Twenty

Item 14, cont.

to the standards and criteria for docking facilities within aquatic preserves. Under section 120.54(7), F.S., the Board of Trustees had a deadline of 30 days to respond to the petition for rulemaking. However, in an effort to cooperatively evaluate the issues, PEER requested deferral of this item to be heard by the Board of Trustees at the April 13, 1999 Board of Trustees meeting, and extended its waiver of the deadline for the agency's final action on PEER's petition to and including April 23, 1999. The deferral of this item was to allow PEER time to meet with the DEP's new Secretary on the issues. PEER met with Secretary Struhs on March 18, 1999.

Progress Report and Recommendations

Meetings were held on December 17, 1998, and January 15, 1999, to evaluate the issues. Attendees included staff of DEP, the WMDs, PEER, SMC, and other interested persons, including several Cabinet Aides. At the meetings, the parties held serious, respectful, and constructive discussions on the following issues:

Oversight of the Sovereign Submerged Lands Program, including personnel policies;
Performance Reviews;
Delegations of Authority from the Board of Trustees to DEP and the WMDs;
Compliance and Enforcement Actions, including Temporary Use Agreements, and Reporting to the Board of Trustees;
Docking Standards and Criteria within Aquatic Preserves;
Public Noticing;
Protected Species Coordination; and
"SLAPP-Like" Lawsuits.

On January 8, 1999, PEER and SMC filed a proposed settlement agreement with the DEP. Much of the discussion at the January 15, 1999 meeting centered around the DEP and WMDs responses to the proposed settlement. While there is consensus or substantial agreement on some issues, agreement could not be reached on all of the issues. The attached progress report provides a summary of discussions from each meeting, a discussion of issues for which consensus was reached, issues of substantial agreement, and unresolved issues, along with a DEP recommendation on each issue.

Final Order of Dismissal of Petition

As discussed in the proposed Third Amended Final Order (attached), the DEP recommends that PEER's pleading and SMC's petition be dismissed, in part because of PEER's lack of standing to file such a petition. However, the DEP believes that PEER and SMC have raised significant issues that can best be evaluated through public rule development proceedings, and requests that the Board of Trustees, under its independent authority, direct the DEP, as its staff, to initiate rule development proceedings as discussed below.

Rule Development - Delegation of Authority

In its petition, PEER requested that the Board of Trustees create two new exclusions from the delegation of authority from the Board of Trustees to the DEP and WMDs to review and take final agency action on applications to use sovereignty submerged lands. Both would lower the thresholds for projects located in aquatic preserves (e.g., docking facilities of more than five slips or 5,000 square feet of preemption, and additions to docking facilities that increase the number of slips or preempted area by ten percent) under the premise that certain projects in aquatic preserves have a heightened public concern and potential for resource impacts which should be directly reviewed by the Board of Trustees.

Board of Trustees

Agenda - April 13, 1999 Page Twenty-one

Item 14, cont.

While the DEP believes it is appropriate to review the existing delegations of authority, we do not agree to the specific revisions to the delegations of authority proposed by PEER. Such revisions need to be more fully reviewed to determine the impact on staff resources, the benefits to the environment, and the effect on the public. Further, DEP believes that other alternatives may exist for revising the specific project thresholds in aquatic preserves, including but not limited to possibly revising or otherwise clarifying existing provisions which enable one or more members of the Board, the DEP, or the WMDs to request Board of Trustees' review of projects because of heightened public concern, controversy, or potential effect on the environment.

Therefore, it is recommended that rule development be initiated to further evaluate this issue, and allow broader public input into any recommendations regarding the delegations of authority under rule 18-21.0051, F.A.C.

Rule Development - Other Issues

PEER has agreed to withdraw its request to amend several criteria related to the standards and criteria for docking facilities within aquatic preserves. This agreement is based on discussions at the meetings over the intent of existing rule criteria and the force and effect of a draft staff memo. However, from the meeting discussions, it appears that several other issues could be further evaluated through rulemaking proceedings, such as public noticing, temporary use agreements, and the standards and criteria for docking facilities within aquatic preserves. Such rulemaking proceedings could also address the recommendations resulting from the administrative reviews and a recently completed process analysis of the Submerged Lands and Environmental Resource Permitting program. Therefore, it is recommended that rule development be initiated on certain provisions in chapters 18-20 and 18-21, F.A.C., including but not limited to:

Forms of authorization, including those for single family docks;
Public noticing;
Criteria for docking facilities in aquatic preserves;
Sufficient upland title interest;
Easement fees, including public easements, and application processing fees; *
Temporary Use Agreements for unauthorized facilities; and
Scope of delegation under rule 18-21.0051, F.A.C.

* On November 7, 1996, the Board of Trustees requested staff to prepare recommendations for rule revisions to address fees charged for leases and easements, including those for public utilities, extended term leases, and special discounts. In 1998, the Board of Trustees approved rule revisions that addressed among other things, criteria for approving extended term leases, extended term lease fees, wetslip rental fees, special event fees, and discounts for open-to-the-public docking facilities. The 1998 rulemaking did not address easement fees.

DEP recommends that rule development, as discussed above, be initiated by June 4, 1999, and that a Technical Advisory Committee be convened to assist in the rulemaking. The committee would be composed of DEP and WMD staff, representatives of the regulated industry and environmental communities, along with other interested parties.

(See Attachment 14, Pages 1-36)

RECOMMEND APPROVAL