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AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND MARCH 13, 2001 ***************************************************** Item 1 Becton Springs Consent of Use DEFERRED FROM THE FEBRUARY 6, 2001 AGENDA REQUEST: Consideration of an application for a sovereignty submerged lands consent of use containing approximately 37.5 square feet, more or less, for a proposed wooden slat stream diversion structure. COUNTY: Washington Application No. 67-0148551-001-DF APPLICANT: Harold W. & Linda Creamer Vickers and Rueben A. & Lorrie A. Laurel a/k/a Becton Springs LOCATION: Section 24, Township 03 North, Range 15 West, in Becton Springs, Class III Waters, near the town of Bonifay, within the local jurisdiction of Washington County Aquatic Preserve: No Outstanding Florida Waters: No Designated Manatee County: No Manatee Aggregation Area: No Manatee Protection Speed Zone: No CONSIDERATION: No payment is required. STAFF REMARKS: The applicant is proposing to construct a 410-foot-long by 0.75-foot-wide wooden slat diversion structure, approximately 50 feet of which is located on sovereignty submerged lands, and excavate a 120-foot-long by 25-foot-wide by –1-foot-deep stream by-pass channel, not on sovereign submerged lands, adjacent to Becton Springs. The project is located in central Washington County, south of Interstate 10 on State Road 79, south of Bonifay. Currently, Becton Springs and Holmes Creek are connected via a secondary flowway which carries turbid water, sediments, tannins and other organics into the spring area, resulting in diminished water clarity. The diversion structure and by-pass channel are proposed to prevent debris and turbid water from Holmes Creek from entering the springhead area during periods of high water flow. Diversion of the secondary stream into the proposed by-pass channel will not reduce the flow of water into Becton Springs, nor is it expected to impede navigation, and has been designed to allow access by the same-sized boats that may use the existing stream channel. The Department of Environmental Protection (DEP) issued an Intent to Issue and a Draft Permit on December 21, 1999, to construct the 410-foot-long by 0.75-foot-wide wooden slat diversion structure, and to excavate a 120-foot-long by 25-foot-wide by –1-foot-deep stream by-pass channel. The springhead, stream, and Holmes Creek are considered to be sovereignty submerged lands. The by-pass will not be located on sovereignty submerged lands. DEP has received letters of opposition from the public and the Washington County Board of County Commissioners. Their concerns include: blocking of public access, flooding of private property, shoaling and erosion within Holmes Creek, water quality impacts, the stability of the structure, and impacts to the wetlands. The Washington County Board of County Commissioners has petitioned for an administrative hearing for both the water diversion structure and the by-pass channel, citing all of the above referenced reasons. Litigation is still pending on the administrative hearing.
Board of Trustees Agenda – March 13, 2001 Page Two
***************************************************** Item 1, cont. The project has been reviewed by DEP’s hydrographic section and Washington County’s concerns were addressed in that review. The flowway that the diversion structure is proposed to cross acts as a floodplain and is located off the main channel of the creek. Therefore, DEP is not concerned that the structure will cause any upstream flooding, erosion or shoaling. The hydrographic section has expressed concern that the structure may potentially fail during flood stages of the creek. The permit has addressed these concerns by adding a special condition that if the diversion structure is damaged by flooding, debris or other events, DEP shall be contacted within 48 hours of the event, and the cause of failure shall be determined. DEP shall also determine if the structure can be rebuilt or if design changes are necessary. Several individual homeowners and the Bay County Audubon Society have also expressed concerns about the project blocking public access to the springhead. A special permit condition has also been added which prohibits the applicant from constructing any additional structures, which would impede public access to the springhead. The springhead will be accessible via the southerly outflow from the springhead. The project was not required to be noticed, as the project is for a consent of use. 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 plan according to a letter received from Washington County. RECOMMEND DEFERRAL ***************************************************** Item 2 Brickell Key Marina/Swire Properties Recommended Consolidated Intent DEFERRED FROM THE JULY 25, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 12, 2000 AGENDA DEFERRED FROM THE SEPTEMBER 26, 2000 AGENDA DEFERRED FROM THE NOVEMBER 29, 2000 AGENDA DEFERRED FROM THE FEBRUARY 6, 2001 AGENDA REQUEST: Consideration of an application for a five-year sovereignty submerged lands lease containing 204,861 square feet, more or less, for a proposed commercial multi-use marina. COUNTY: Miami-Dade Application No. 13-0132744-001 APPLICANT: City of Miami and Swire Properties, Inc. d/b/a Brickell Key Marina LOCATION: Section 07, Township 54 South, Range 42 East, in Biscayne Bay, Class III Outstanding Florida Waters, within the local jurisdiction of the city of Miami Aquatic Preserve: Biscayne Bay, Resource Protection Area 1 Designated Manatee County: Yes, with an approved manatee protection plan Manatee Aggregation Area: No Manatee Protection Speed Zone: Yes, slow speed zone Outstanding Florida Waters: Yes, Class III Board of Trustees Agenda – March 13, 2001 Page Three
***************************************************** Item 2, cont. STAFF REMARKS: In accordance with rules adopted pursuant to sections 373.427(2) and 253.77(2), F.S., this "Recommended Consolidated Intent" contains a recommendation for denial 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 applicants, the City of Miami (City) and Swire Properties, Inc. (Swire), are proposing to construct a 112-slip commercial multi-use marina facility on the western shoreline of Brickell Key Island, located just south of the mouth of the Miami River in downtown Miami. The lease area, 204,861 square feet, will be divided into three separate parcels, with two parcels located north of an 840-foot-long by 66-foot-wide public bridge connecting the island to the mainland, and one parcel on the south side of the bridge. Parcel One is the northernmost parcel, and contains 10,301 square feet. Parcel Two is located immediately north of the bridge, and contains 102,910 square feet. Parcel Three is located immediately south of the bridge, and contains 91,650 square feet. The City owns approximately 1,694 linear feet of shoreline on Brickell Key immediately landward of the proposed marina, per the recent conveyance of that land to the City by Swire. Swire owns 2,831 linear feet of Brickell Key shoreline, as verified by Miami-Dade County tax records, and also controls the development rights of the parcel conveyed to the City, pursuant to the declaration of covenants, reservations and restrictions tied to the parcel. Current upland activities on the island include a public park in the conveyed area, private residential units, a hotel, offices, and commercial retail activities.
Representatives of Swire have stated that the marina slips will be open to the public, except for six law enforcement slips, with some slips being used for long-term rental and some used for short-term rental. They’ve also stated that the expected users of the marina will primarily be residents of the island, guests at the hotel, and visitors to island businesses, but it will be open on a first-come, first-served basis. Swire will be responsible for the construction, operation, and maintenance of the marina, with the operation responsibilities to be contracted out to a separate marina management company. Swire proposes to limit 46 of the 106 private slips for powerboats, with remaining private slips designated for sailboat mooring only. Six slips in Parcel One will be dedicated to marine law enforcement vessels. Each slip is proposed to have a wastewater pumpout, connected to the island’s collection system. Swire describes the marina as a "docks only" facility. No fueling or boat repair facilities, liveaboards, or other such activities are proposed. As stated above, the riparian uplands are a public park, and the marina is proposed to be open to the public. Public access to the island will be limited between the hours of 10 P.M. and 8 A.M., during which time only island residents or guests may pass through the security gate on the island side of the bridge. The only available parking on the island is beyond the gate. Likewise, the proposed public baywalk will be open during regular City park operating hours (approximately sunrise to sundown). According to Swire, the marina management firm will determine how to manage public access and security issues, particularly in regard to short term rental slips. Based on visits to the island, adequate public parking may be an issue. A wetland resource permit for a 53-slip marina was originally issued by the former Department of Environmental Regulation on May 28, 1985. A concurrent application for a sovereignty submerged lands lease was submitted on November 2, 1982, to the former Department of Board of Trustees Agenda – March 13, 2001 Page Four
***************************************************** Item 2, cont. Natural Resources for processing. After review, staff prepared an agenda item recommending denial due to the project not meeting the rule requirements of "extreme hardship" and "public interest". The applicant withdrew the application, and it was subsequently deactivated. The applicant requested that the lease file be reactivated on January 25, 1989. Staff again prepared an agenda item recommending denial for the same reasons as before. The applicant again withdrew the application, and it was again subsequently deactivated. The proposed project will be located on a bridged coastal island and is, therefore, not subject to the coastal island rule. The proposed project will be located in Biscayne Bay Aquatic Preserve, established under section 258.397, F.S. As such, activities in this aquatic preserve must be consistent with the provisions of the statutes and rules governing the preserve. Section 258.397(3)(a), F.S., states that, "No further sale, transfer, or lease of sovereignty submerged lands in the preserve shall be approved or consummated by the board, except upon a showing of extreme hardship on the part of the applicant and a determination by the board that such sale, transfer, or lease is in the public interest." In addition, section 18-18.006(3)(b), F.A.C., states, "There shall be no further use, sale, lease, or transfer of interests in sovereignty submerged lands unless an applicant affirmatively demonstrates sufficient facts to support a finding by the board that: (i) an extreme hardship exists for the applicant at the time the application is filed; (ii) the use, sale, lease, or transfer of interest and the project planned in conjunction with the use, sale, lease or transfer of interest is in the public interest; and (iii) the project planned in conjunction with the use, sale, lease, or transfer of interest is consistent with these rules and management plans when developed for the preserve." Based on the information provided, the marina is expected to serve as an amenity associated with upland, private-residential and commercial activities; owned, operated, and maintained by a private entity. Section 18-18.004(7), F.A.C., clearly defines the project to be a private, "commercial/industrial dock" marina. Staff is of the opinion that the proposed project contradicts the requirements of section 258.397(3)(a), F.S., and section 18-18.006(3)(b), F.A.C., which both state that leases in the Biscayne Bay Aquatic Preserve must meet the test of extreme hardship. Extreme hardship is defined in section 18-18.004(11), F.A.C. as "…a significant burden, unique to the applicant and not shared by property owners in the area. Self-imposed circumstances caused to any degree by actions of any person subsequent to the enactment of the Act shall not be construed as an extreme hardship. Extreme hardship under this act shall not be construed to include any hardship which arises in whole or in part from the effect of other federal, state or local laws, ordinances, rules, or regulations. The term may be inherent in public projects which are shown to be a public necessity." Swire asserts that the project meets the extreme hardship test because the City will be a co-lessee, which makes the marina a public project. The consultant states that the purpose of the facility is to provide public waterfront access, reinforcing the assertion that this is a public project. Staff is of the opinion that the marina is not a public project for three reasons. First, the right to use the property in connection with the development of the marina was reserved by Swire in the declaration of covenants, restrictions and reservations, and not conveyed to the City. Therefore, the City does not have the requisite riparian upland property interest required by statute and rule to be a lessee on their own, and can only be a co-lessee with Swire, the private holder of the riparian upland interest. Secondly, the declaration states that the public can be denied use of the park, with prior written approval of the City. Swire has stated that the Board of Trustees Agenda – March 13, 2001 Page Five
***************************************************** Item 2, cont. marina management firm will control public access to the park as necessary for security requirements. There are no provisions which state that Swire cannot request approval from the City to deny public access to ensure the security of the marina, which is expected to be predominantly used by Swire’s Brickell Key residents and guests. Finally, Swire has stated that all revenues and profits from operation of the marina will go to Swire and not to the City. Swire states that the City will get the benefits of Swire maintaining the City’s park and the City marine patrol having the six slips and office space for a headquarters. As stated above, in meeting the test of extreme hardship, a public project must be shown to be a public necessity, which is defined in section 18-18.004(22), F.A.C., as "…works or improvements required for the protection of the health and safety of the public, consistent with the Act and these rules, for which no other reasonable alternative exists." Swire states that the City has endorsed the marina as part of a downtown revitalization, and that the six law enforcement slips will provide increased protection, both of which make the project a public necessity.
Staff is of the opinion that even if this marina was found to be a public project, it is not a public necessity, for four reasons. First, Swire did not demonstrate how the stated revitalization protected public health and safety. Second, the applicants assert that the six police slips and the relocation of the City’s marine patrol headquarters to the island will provide the public necessity, since they will increase officers’ time "on the water" by reducing travel time between the headquarters and the patrol boats. Although both parties have agreed to the slips and the on-island headquarters, no other details, such as a timeline for providing the office space or whether the marine patrol would still have to travel to and from other, off-island facilities, were provided. This assertion also does not demonstrate how the rest of the marina’s slips are required to protect the health and safety of the public. Third, the project as proposed is not consistent with the Act, chapter 258, F.S., nor rule 18-18, F.A.C., for reasons stated below, which include concerns about potential impacts to manatees. Finally, the applicants have not provided evidence that no other reasonable alternatives exist, such as relocating the marine patrol to another nearby marina. Absent the demonstration of how the marina is a public project that is a public necessity, the applicant has not provided any other demonstration of how the project meets the test of extreme hardship. Section 18-18.006(3)(b), F.A.C., requires that a lease in Biscayne Bay must be in the public interest, pursuant to section 18-18.004(20), F.A.C., and defines such as demonstrating environmental, social, and economic benefits to the public at large, which would clearly exceed all similar cost. Application of the balancing test results in the costs of the proposed marina exceeding the benefits. Costs include: private preemption of almost five acres of public land from public use; increased boat traffic congestion in and near a navigation channel; shading impacts to seagrass, macroalgal habitat, other hard bottom benthic communities; and potential impacts to the West Indian manatee. The Florida Fish and Wildlife Conservation Commission (FFWCC) has recommended against a commercial or public marina at the site, and has stated that the project could impact manatees. Minimal benefits are expected. The primary benefit is a proposed conservation easement to extend along 4,106 linear feet of the island shoreline. However, this conservation easement is of limited value, since it is not likely that additional docking activities or facilities could be approved along the island. The applicants propose to offset shading impacts by providing artificial substrate for new algal growth in another site within the project area. Staff is of the opinion that this project is not in the public interest. Board of Trustees Agenda – March 13, 2001 Page Six ***************************************************** Item 2, cont. This item was deferred from the July 25, 2000, September 12, 2000, and September 26, 2000, agendas in order to give the applicant’s agent time to refute several of staff’s points in the item. The item was deferred from the November 29, 2000, agenda to give the applicant’s new agent time to do the same. The item was deferred from the February 6, 2001, agenda to give Swire an opportunity to address revised comments from FFWCC concerning manatees and concerns raised by staff. In summary, staff’s opinion is that the proposed project will have no net public benefit and is not itself a public project, and meets neither the extreme hardship nor the public interest tests necessary for approval. An objection to the project was received from Friends of the Everglades on August 14, 1998. The objection stated that the project did not meet the "extreme hardship" criteria of section 18-18.006(3)(b), F.A.C., and that the City did not have sufficient interest in the uplands to be considered a co-applicant or co-lessee. Staff has discussed the project with representatives of Friends of the Everglades since the date of that letter, and found that Friends of the Everglades still has concerns about the project. A second objection to the project, in the form of a copy of a letter from the Save the Manatee Club (SMC) to the United States Army Corps of Engineers, was received on December 21, 1998. The objection stated that the project was not consistent with the Dade County manatee protection plan (MPP), that the project was not in the public interest, and that the mitigation measures proposed at that time were insufficient to offset potential manatee impacts. Staff has continued to discuss the project with SMC since the date of that letter, including the most recent discusssion on February 6, 2001, and has found that SMC’s position is still that the project would adversely impact manatees and is inconsistent with the Miami-Dade County MPP. A third objection to the project was received from Miami-Dade County, Division of Environmental Resource Management (DERM), on September 14, 1998. The objection stated that the project would adversely impact manatees, and was inconsistent with the Miami-Dade County MPP. Staff has continued to discuss the project with DERM since the date of that letter, including the most recent discusssion on February 6, 2001, and has found that DERM’s position is still that the project would adversely impact manatees and is inconsistent with the Miami-Dade County MPP. A February 11, 2000, letter from FFWCC’s Office of Environmental Services, Bureau of Protected Species Management, stated that the project would increase the number of watercraft operating in the area, contribute to the accumulation of risks to manatees from watercraft collisions, and increase the probability of boat/manatee collisions. The letter went on to state that to satisfy the requirements of section 373.414(1)(a)(2), F.S., and the Dade County MPP, among other recommendations, slips should only be available for use by law enforcement vessels or individuals that reside on Brickell Key. DEP staff discussed this recommendation with staff from FFWCC’s Bureau of Protected Species Management, and were advised that a public or commercial marina, as proposed, would not meet the requirements. A January 19, 2001, letter from FFWCC’s Office of Environmental Services, Bureau of Protected Species Management, provided additional comments on the project based on information received since the February 11, 2000, letter. The new letter stated that the site was not appropriate for a commercial marina, that Brickell Key is located entirely in essential manatee habitat, that the project is located approximately 1.25 miles from the Virginia Key No-Entry Zone, and that their records indicated that between January 1974 and September Board of Trustees Agenda – March 13, 2001 Substitute Page Seven ***************************************************** Item 2, cont. 2000, there had been 16 manatee deaths related to watercrafts within a five-mile radius of the site, representing 41 percent of all watercraft-related deaths in Miami-Dade County. A DEP environmental resource permit application has been processed concurrently with the lease application. Both applications were deemed complete on May 5, 2000. Based on DEP’s staff recommendation to the Board of Trustees that the lease application be denied, and the concerns about the use of the facility and manatee impacts, staff will also recommend denial of the environmental resource permit application. 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 City has sent letters supporting the project. However, no local permits have been issued for the project. (See Attachment 2, Pages 1-34) RECOMMEND DENIAL ***************************************************** Substitute Item 3 SWFWMD/Potts Preserve Consent of Use/Lake Tsala Apopka REQUEST: Consideration of an application for a consent of use to remove 21,095 cubic yards of sovereign material for the purpose of hydrologic and wetlands restoration in Potts Preserve. COUNTY: Citrus Application No. 09-01779443-001 APPLICANT: Southwest Florida Water Management District (SWFWMD)
LOCATION: Sections 04, 07 through 10, 15 through 23, and 27, Township 18 South, Range 20 East, in Lake Tsala Apopka, Class III Waters, within the local jurisdiction of Citrus County Aquatic Preserve: No Outstanding Florida Waters: Yes Designated Manatee County: N/A Manatee Aggregation Area: N/A Manatee Protection Speed Zone: N/A CONSIDERATION: The project qualifies for a waiver of the severance fee pursuant to section 18-21.011(3)(c), F.A.C. STAFF REMARKS: The applicant proposes to remove fill that was placed on sovereignty submerged lands of Lake Tsala Apopka in the late 1960s. The fill was placed for the purpose of constructing a dike and access road to facilitate the previous owner’s ranching operation, as well as allowing greater opportunity to control water levels on the property. The road/dike connect a series of small marshy islands, and encircles a portion of the wetlands associated with the lake that are now state-owned and known as Potts Preserve (Preserve). Filling for the road/dike severed the natural connection between marshy ranch lands adjacent to the lake and the Hernando Pool, which is the northernmost of three pools in the Lake Tsala Apopka chain of lakes. The Preserve is a four-parcel tract (9,348-acres) containing a mosaic of hardwood Board of Trustees Agenda – March 13, 2001 Substitute Page Eight
***************************************************** Substitute Item 3, cont. hammocks, pasture lands, marshes, and herbaceous wetlands. This area was purchased by SWFWMD between 1988 and 1993 for preservation and passive recreation. The Preserve boundary also encompasses approximately 3,000 acres of navigable waters of the Hernando Pool that have been determined to be sovereign below the 39.5 foot elevation (NGVD) by the Department of Environmental Protection (DEP). The fill placement for the road/dike appears to be an unauthorized use of sovereignty submerged lands; however, no records could be found in DEP archives that reflect whether the area of submerged lands was conveyed to other entities, or if authorization was ever granted for the placement of the fill. The results of the diking were: (1) the severance of the connection to the Hernando Pool; (2) the isolation of the ranch from the rest of Lake Tsala Apopka; and (3) the obstruction of navigable access to 3,000 acres of navigable waters by the public. Whether to leave the dikes in place has been a contentious issue between, basically, two user groups in the Preserve area. The group that supports removal of the road/dike connections between the former islands wishes for the area to be restored in order to regain access to the enclosed area for boating (airboats and conventional motors), fishing and hunting. This group contends that the dikes have caused: (1) the loss of habitat; (2) the inability of fish to migrate in and out of the Preserve; and (3) the obstruction of surface water flow from entering the Hernando Pool. The other group includes the Preserve’s trail users, who pushed for the construction of a series of boardwalks in 1994 to facilitate access to the road/dike so that the access road could be incorporated into the existing trail network. The trail users contend that the removal of the dike connections would result in: (1) denial of access to a significant part of the trail via the uplands of the Preserve; (2) removal of a buffer that, over the last 30-35 years, has preserved the ecosystem of the marshy areas inside the dike roads, mainly by precluding airboats from entering the area; and (3) the reduction of the applicant’s ability to manage the preserve for the purposes originally intended, including the provision of a safe haven for wildlife, for which the property was purchased under the Save Our Rivers Act. Also, advocating the retention of the road/dike is an endangered species coalition, whose recent letter to DEP expressed concern about scrub jay habitat that would allegedly be adversely impacted as a result of the erosion and noise anticipated from airboat use. In order to make a determination regarding what would be best, environmentally, for the marshy areas of the Preserve, at the April 1999 meeting of the Withlacoochee River Ecosystem Management Initiative Committee a work group was formed consisting of representatives from the various user groups and stakeholders. Those making up the group represented the interests associated with hiking, boating, fishing, hunting, and birdwatching. Also included were adjacent landowners with a vested interest in the uses of the Preserve, who expressed concerns about the potential for flooding in some areas or lowering of water levels in other areas. After a series of meetings over a period of eight months in 1999, a consensus emerged from the group that a study on the effects of leaving the road/dike in place or removing it should be conducted. Most members of the group agreed that data derived from a scientific study should provide the foundation upon which any decision regarding the disposition of the road/dike should be made. The results of an extensive study conducted cooperatively by DEP restoration scientists and SWFWMD engineers revealed that the ecosystem inside the road/dike would benefit from the removal of the road/dike connections and restoration of the historic hydrology of the area. In addition, SWFWMD has conducted modeling studies that demonstrate that restoring the historic hydrological patterns should not affect private properties in the area by either flooding or reducing lake levels. Board of Trustees Agenda – March 13, 2001 Substitute Page Nine ***************************************************** Substitute Item 3, cont. In order to remedy the unauthorized placement of fill on sovereignty submerged lands and restore the road/dike to its pre-construction natural condition, SWFWMD is proposing to excavate approximately 21,095 cubic yards of sovereignty material from a total of 17 road/dike connections. The excavated material will be disposed of on the riparian upland property owned by SWFWMD, and as such, qualifies for a waiver of the severance fee pursuant to section 18-21.011(3)(c), F.A.C. In addition, the proposed activities include the restoration for one overflow area on sovereignty submerged lands by removing double culverts and plugging the ditch in order to restore it to its historic grade. The purpose of this activity is to restore historic overflow patterns into adjacent wetlands. Currently, a management agreement exists between SWFWMD and the Florida Fish and Wildlife Conservation Commission (FFWCC) for the management of upland activities such as hunting, camping, and hiking within the Preserve. Presently, negotiations are underway between DEP and SWFWMD concerning the acceptance of management responsibility for the sovereignty submerged lands in the Preserve. Once negotiations have been completed to the satisfaction of both parties, a request for a management agreement to SWFWMD for the sovereignty submerged lands in the Preserve will be presented to the Board of Trustees by DEP. Since FFWCC already has management authority over the uplands in the Preserve, it is anticipated that, at a later date, the management agreement between SWFWMD and FFWCC would be extended to include the management of the sovereignty submerged lands as well. In presenting this item to the Board of Trustees, it should be noted that DEP is not requesting approval by the Board of Trustees of any management activities within the Preserve at the present time. The subject application is being presented to the Board of Trustees pursuant to section 18-21.0051(4), F.A.C., because the nature of the project may elicit heightened public concern. SWFWMD was notified on February 16, 2001 that the project qualifies for use of the Noticed General Permit for wetlands restoration pursuant to section 62-341, F.A.C. The proposed project was not required to be noticed. A local government comprehensive plan consistency statement has not been obtained for this project.
(See Attachment 3, Pages 1-3) RECOMMEND WITHDRAWAL ***************************************************** Item 4 Chapter 18-24, F.A.C. Rule Adoption/Florida Forever Program REQUEST: Adoption of a rule guiding the project selection proceedings for the Florida Forever Program, chapter 18-24, F.A.C. COUNTY: Statewide APPLICANT: Division of State Lands, Department of Environmental Protection (DEP)
Board of Trustees Agenda – March 13, 2001 Page Ten ***************************************************** Item 4, cont. STAFF REMARKS: This rule chapter is promulgated in recognition of the legislative intent expressed in subsection 259.105(2), F.S. The rule sets forth the procedures for the evaluation and selection of lands proposed for public acquisition, restoration, and capital improvements under the new Florida Forever Act. The proposed new rule chapter governing the Florida Forever program, chapter 18-24, F.A.C., will guide the expenditures of 35 percent of the Florida Forever Trust Fund allocated to DEP pursuant to subsection 259.105(3)(b), F.S., and will provide more accountability by using Florida Forever goals and measures to evaluate proposals. The new rule will also provide guidance regarding restoration and capital improvement projects that are allowed under the Florida Forever program, and will allow for a more timely response to owners wishing to have property added to the acquisition list. The Notice of Rule Development was published in the January 26, 2001 issue of the Florida Administrative Weekly, and a public hearing was conducted by the Acquisition and Restoration Council (Council) on February 12, 2001. The proposed rule chapter will be considered for approval by the Council at its March 9, 2001 meeting. (See Attachment 4, Pages 1-13) RECOMMEND APPROVAL ***************************************************** Item 5 Hackenberg Option Agreement/Tomoka State Park REQUEST: Consideration of an option agreement to acquire 20.80 acres within the Tomoka State Park, Division of Recreation and Parks’ Additions and Inholdings project from Wilheim F. Hackenberg. COUNTY: Volusia LOCATION: Section 40, Township 14 South, Range 32 East CONSIDERATION: $370,000
STAFF REMARKS: The Tomoka State Park 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. All mortgages and liens will be satisfied at the time of closing. The isolated wetlands and uplands along the northwesterly boundary of the property do not have legal access. DRP, the future managing agency, has determined that this portion of the property can be accessed through adjoining state-owned land along the northwesterly boundary of the property. The remaining portion of the property has legal access. 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,
Board of Trustees Agenda – March 13, 2001 Page Eleven
***************************************************** Item 5, cont. evaluate and implement the most appropriate resolution for any title issues that arise 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.For over a decade, there has been state and local government interest in protecting the valuable tributary and associated uplands between, and including, this property and the Tomoka River. Acquisition efforts have been highly successful. Tomoka State Park contains a variety of wildlife habitats and protects several rare and endangered species. The best known animal in the park is the West Indian manatee. The waters within the surrounding property have long been recognized as an active manatee area. Bottlenose dolphins occasionally surface in the lower Tomoka River. Approximately 165 species of birds have been observed in the park and surrounding waters. The bald eagle, peregrine falcon and northern harrier are seasonal inhabitants of Tomoka Basin. The uplands within the property may be suitable for limited public park use compatible with manatee protection goals. The majority of these uplands are readily accessible to US 1. The property will be managed by DRP as an addition to the Tomoka State Park. 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 5, Pages 1-15) RECOMMEND APPROVAL ***************************************************** Item 6 TNC Purchase Agreement (Inlet Grove Partnership)/SJRWMD/Indian River Lagoon Blueway (Snagg Point) CARL Project REQUEST: Consideration of authorization to acquire an undivided 89.1 percent interest with the St. Johns River Water Management District in 221.905 acres within the Indian River Lagoon Blueway (Snagg Point) CARL project from The Nature Conservancy, Inc. COUNTY: Brevard Review Number 010404 LOCATION: Sections 23 and 26, Township 29 South, Range 38 East CONSIDERATION: $3,260,000 (The Board of Trustees’ 89.1 percent share of the total purchase price of $3,660,000) STAFF REMARKS: The Indian River Blueway CARL project is ranked number 9 on the CARL Bargain/Shared Project List approved by the Board of Trustees on February 22, 2000, and is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition Workplan. This project contains 5,178 acres, of which 1,230.24 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement and Brevard County (County) acquires the 66.295-acre parcel, 3,659.56 acres, or 71 percent of the project, will remain to be acquired.
Board of Trustees Agenda – March 13, 2001 Page Twelve ***************************************************** Item 6, cont. On June 24, 1998, the Board of Trustees authorized staff to enter into an acquisition agreement with the St. Johns River Water Management District (District) to acquire the Indian River Blueway CARL project in accordance with section 259.04(16), F.S. (1994), utilizing the procedures set out in section 373.139, F.S. The Nature Conservancy, Inc. (TNC), pursuant to its Agreement for Land Acquisition Services with the District, contracted to purchase 288.2 acres from Inlet Grove Partnership in fee simple for $5,000,000 utilizing District acquisition procedures set out in section 373.139, F.S. TNC has split the property into two parcels. On February 20, 2001, TNC assigned its contract interest in Parcel 1 (referred to as Parcel A in the appraisals), containing 66.295 acres of citrus located in the southeast portion of the property, to the County. The County will purchase Parcel 1 for $1,340,000 and construct recreational improvements, including a softball field, soccer field, community center and pavilion, for operation by its Department of Parks and Recreation. On February 14, 2001, TNC assigned its contract interest in Parcel 2 (referred to as Parcel B in the appraisals) to the District for $3,660,000, or 88 percent of the Parcel 2 approved value of $4,150,000. Parcel 2 contains 221.905 acres, including all areas of impounded saltwater marsh and approximately 170 acres of citrus groves. The property is improved with structures and equipment used in operating the citrus groves. The appraisers accorded no value to the improvements (including the actual citrus trees). This is a bargain/shared project, which requires a 50 percent contribution by an acquisition partner in the entire project. This project covers multiple counties and two water management districts. This acquisition is within the St. Johns River Water Management District’s portion of the project. The District and the County have contributed $7,647,997.62 towards the purchase of land in the project, to which title is partially held by the District or the Board of Trustees, and to date the Board of Trustees have only contributed $3,017,234.50. While not required to do so on this transaction, the District agreed to contribute $400,000 towards the purchase of this acquisition. Title to Parcel 2 will vest jointly, with the Board of Trustees holding an undivided 89.1 percent fee simple interest and the District holding an undivided 10.9 percent fee simple interest. The Board of Trustees' purchase price will be 89.1 percent of the contract price negotiated by TNC plus 89.1 percent of the costs incurred in the purchase of the property. Parcel 1 and Parcel 2 will be closed independently, although simultaneously, on or before April 30, 2001. Inlet Grove is supported by DSL primarily due to its frontage on the Indian River Lagoon (1.7 miles) and the potential future implications associated with development or continued agricultural practices on the site. In addition to the intrinsic values associated with the proposed purchase, the site provides a buffer from existing and future land uses near the lagoon. The acquisition will result in restoration of shoreline integrity and flushing associated with restoration of the mosquito control ditches on the property, thus further protecting and enhancing water quality. The grove is, if left untreated with chemicals, no threat to water quality in the lagoon or to adjacent natural systems. Its restoration is thus not critical in the short term and may, if properly administered, supply limited funding for use in the restoration of the site by contracting the sale of non-fertilized citrus until the grove is either no longer productive or the site is ready for restoration. Board of Trustees Agenda – March 13, 2001 Page Thirteen ***************************************************** Item 6, cont. As provided for in the acquisition agreement, on February 14, 2001, the Governing Board of the District adopted Resolution No. 2001-17, requesting the Board of Trustees’ share of the purchase price for the Inlet Grove Partnership parcel, reimbursement of 89.1 percent of its preacquisition costs and reimbursement of 89.1 percent of its closing costs (recording, title insurance policy and survey costs). Pursuant to the acquisition agreement, the preacquisition 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. Public acquisition would help preserve and improve the aquatic natural communities of the Indian River Lagoon, one of the country’s most productive, diverse and commercially and recreationally important estuaries. A third of the country’s manatee population lives in the Indian River, and the area is important for many migratory birds as well as for oceanic and estuarine fishes. Additionally, public acquisition would provide natural resource-based recreation in a developing area of Florida. The Inlet Grove property is adjacent to the Indian River-Malabar to Vero Beach Aquatic Preserve, in addition to conservation property owned by the state, District and the County. The property presents approximately 1.7 miles of lagoon shoreline for preservation. The property will be managed to conserve, protect, and restore important ecosystems in order to enhance and protect the significant surface water, recreational, fish and wildlife resources of one of North America’s most biologically diverse estuaries. The property contains approximately 50 acres of impounded and hydrologically altered saltwater marsh, the restoration of which will provide protection for the Indian River Lagoon, increase estuarine habitat, and improve recreational opportunities for the public. The District and County, as part of the Indian River Lagoon Surface Water Improvement and Management plan, will install and maintain control structures to reconnect the mosquito control impoundments to the lagoon. Interior dikes will be removed to allow restoration of additional estuarine habitat. These saltwater marshes provide excellent habitat for waterfowl, wading birds, and viewing opportunities for the public while enhancing the water quality and fisheries of the adjacent aquatic preserve. The Department of Environmental Protection, Office of Coastal and Aquatic Managed Areas is the lead manager for this project. Management of this 221.905-acre parcel, which will become part of the Indian River Lagoon State Buffer Preserve, will be accomplished through a management agreement with the District. 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 6, Pages 1-48) RECOMMEND APPROVAL ***************************************************** Item 7 TNC Assignment of Option Agreement (Rayonier)/Managing Agency Designation/Management Policy Statement Confirmation/Pinhook Swamp CARL Project REQUEST: Consideration of (1) the acceptance of an assignment of an option agreement from The Nature Conservancy to acquire 57,379 acres (a 100 percent title interest in 33,800 acres and an undivided 50 percent title interest in 23,579 acres) within the Pinhook Swamp Board of Trustees Agenda – March 13, 2001 Page Fourteen ***************************************************** Item 7, cont. CARL project from Rayonier Woodlands LLC and Rayonier Timberlands Operating Company, L.P.; (2) designation of the Department of Agriculture and Consumer Services, Division of Forestry, as the managing agency; and (3) confirmation of the management policy statement. COUNTY: Baker LOCATION: Sections 29 through 36, Township 01 North, Range 19 East; Sections 01 through 18 and 24 through 36, Township 01 North, Range 20 East; Sections 05 through 08, 16 through 20 and 29 through 31, Township 01 North, Range 21 East; Sections 17 through 23, 25, 26 and 36, Township 02 North, Range 19 East; Sections 23 through 36, Township 02 North, Range 20 East; Sections 19 through 21, 30 and 31, Township 02 North, Range 21 East; and Sections 01 through 18, Township 01 South, Range 19 East CONSIDERATION: $47,521,985 (Board of Trustees’ 100 percent share of western portion and 50 percent share of the eastern portion, which includes $79,000 (79 percent) of the overhead payment to TNC).
* Includes 98 acres of roads that were not appraised. ** Rayonier acquired the property as part of a 979,000-acre purchase from Smurfit Stone Container, Inc. in October 1999. STAFF REMARKS: The Pinhook Swamp CARL project is ranked number 7 on the CARL Bargain/Shared List as it appears on the 2000 Interim Report approved by the Board of Trustees on October 24, 2000, and is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition Workplan. The project contains 113,108 acres, of which 40,025 acres have been acquired by the United States Department of Agriculture (USDA) Forest Service. USDA Forest Service also owns the adjacent 158,255-acre Osceola National Forest and the U.S. Fish and Wildlife Service owns the 438,000-acre Okefenokee National Wildlife Refuge to the north. This is the first acreage to be acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 15,704 acres, or 14 percent of the project, will remain to be acquired. Pursuant to a multi-party acquisition agreement entered into between DSL and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase this 57,379-acre parcel from Rayonier Woodlands LLC and Rayonier Timberlands Operating Company, L.P. (Rayonier). On March 14, 2001, the Governing Board of the St. Johns River Water Management District (District) will consider a partial assignment of option to acquire a 50 percent interest in 23,579 acres of the Rayonier parcel lying east of Eddy Grade Road. The District’s Governing Board will also vote on approving the payment of 21 percent of the total TNC overhead and total closing costs associated with the acquisition of the entire Rayonier parcel. After the Board of Trustees approves this acquisition, and if the District’s Governing Board approves its item on March 14, 2001, the Board of Trustees and the District will acquire the option from TNC for $100,000, which represents agreed upon compensation to TNC for overhead associated with acquiring the option. The Board of Trustees and the District may then exercise the option and purchase the property. The assignment of option agreement provides that payment to TNC is contingent upon the Board of Trustees and the District Board of Trustees Agenda – March 13, 2001 Page Fifteen ***************************************************** Item 7, cont. successfully acquiring the property from the owner. The assignment of option agreement further provides that in no event will the purchase price for the option and the purchase price of the property exceed the DSL approved value of the property. DSL will close the transaction with Rayonier on behalf of the District and the Board of Trustees. The option agreement provides for an initial closing to take place on or before April 30, 2001, at which time 90 percent of the proceeds of the sale will be disbursed to Rayonier. A final disbursement will take place on or before July 31, 2001, when the final acreage determination is made and the final appraised value is certified. A breakdown of the contributions of the District and Board of Trustees is illustrated in a spreadsheet included in the backup of this item. The actual amount of each party’s contribution may change, depending on the final determination of acres and the final accounting of closing costs. All mortgages and liens will be satisfied at the time of the initial 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 57,379-acre parcel includes approximately 98 acres of roads that are titled to Rayonier but have been graded by Baker County (County) from time to time. The County does not claim these roads as County-maintained, but in the event they may decide to claim them in the future, Rayonier is not being compensated for the acres associated with these roads nor have the roads been appraised. The Board of Trustees will hold title to the roads with an easement being granted to the District post-closing. If, prior to closing, the County claims the roads as publicly maintained roads, they will be conveyed to the County by Rayonier. If the County claims the roads after closing, staff recommends that the Board of Trustees convey the claimed right-of-way to the County, at no cost, under the provisions of section 18-2.018(3)(b)(1)(c), F.A.C. The seller is reserving approximately 2,261 acres of merchantable pine plantations throughout the property for up to five years. The seller has explained this was done to retain its existing work force in this region. The seller will coordinate with the managing agency prior to initiating harvest activities in these areas. There are approximately 1,265 acres of active timber sales that were issued by the seller during or before May 2000, with sale terms of 18 months. The reserved timber and the timber under active harvesting were excluded from the purchase and consequently were not appraised. Reforestation of the above mentioned reserved and active timber sale areas will be handled by the managing agency. There are approximately 2,929 acres that have been harvested, which have been replanted by the seller. An escrow agreement sets aside $366,125 to ensure success of the tree planting activity, and provides for a disbursement to the Department of Agriculture and Consumer Services, Division of Forestry (DOF) to replant any areas that are classified as "Failed Plantings." DOF has been involved with these elements of the agreement, and finds these conditions acceptable. The District is providing the title insurance policy. Rayonier will pay 50 percent of the title insurance premium with the Board of Trustees and District each paying its proportionate share of the remaining cost of the title insurance. A survey and an environmental site assessment will be provided by the Board of Trustees with the Board of Trustees and District each paying its proportionate share of the cost. The initial survey work will provide documentation of any and all boundary issues, and a sufficient calculation of acres to support the disbursement at the initial closing. Board of Trustees Agenda – March 13, 2001 Page Sixteen ***************************************************** Item 7, cont. Acquisition of this tract will help protect and restore a large natural area linking the 438,000- acre Okefenokee National Wildlife Refuge with the 158,225-acre Osceola National Forest, filling in a missing puzzle piece creating a huge conservation area of over 795,000 acres. The wetlands and the pine flatwoods ecosystem are important for the long-term conservation of the Florida black bear, the sandhill crane and other wetlands-dependent species, and for maintaining the water flows to the Suwannee and St. Mary’s rivers. Portions of the tract have had recurring foresting operations, but approximately half of the area consists of natural pine areas, natural non-pine areas or bays. The public will be able to enjoy diverse low-impact recreational activities. It is anticipated that the state and USDA Forest Service will finalize an exchange of federal mineral interests and certain other surface tracts for a portion of this tract (up to approximately 33,700 acres west of Eddy Grade Road) by the end of 2002. Any exchange would be based on value-for-value. Obtaining the federal mineral interests under state-owned surface rights has been a state goal since the early 1970s. In 1957, USDA Forest Service deeded approximately 182,300 acres of land to the state of Florida for Blackwater River State Forest, reserving 75 percent of the mineral interests. In 1958, the Withlacoochee National Forest was sold to the state of Florida through a 25-year lease-purchase agreement, with USDA Forest Service reserving 100 percent of the mineral interests. In 1994, the U.S. Department of the Interior (USDI), Bureau of Land Management, and USDA Forest Service initiated serious discussions with Florida regarding a lands for minerals and other properties exchange. In 1996, the Land Acquisition Advisory Council (now the Acquisition and Restoration Council) approved the addition of the federal mineral rights (Split Estate tract) to the Pinhook Swamp CARL project for exchange purposes. On February 24, 1998, the Board of Trustees approved a Memorandum of Understanding between USDA Forest Service, USDI, Bureau of Land Management, and the Board of Trustees concerning mineral appraisal procedures. In the past year and a half, all parties have intensified their efforts to expedite the exchange process and have been meeting regularly to work out the multitude of details required by both the federal and state governments for such a transaction. Although the state owns several small tracts within or adjacent to national forests that could suitably be used in the exchange, all parties realized that the success of the exchange would depend upon the state acquiring large tracts within the Pinhook Swamp project area, such as the Rayonier tract. It is estimated that all parties will complete the formal documents and procedures required to finalize the exchange by the end of 2002. Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate DOF as the managing agency for the entire tract until an exchange with the USDA Forest Service occurs. At that time, the western portion, approximately 33,700 acres, would be owned and managed by USDA Forest Service. 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 included in the 2000 CARL Annual Report was originally developed by USDA Forest Service and adopted by the Board of Trustees on February 22, 2000. Staff recommends that the Board of Trustees reaffirm this management policy statement. Board of Trustees Agenda – March 13, 2001 Page Seventeen ***************************************************** Item 7, cont. The primary goals of management of the Pinhook Swamp CARL project are: to conserve and protect significant habitat for native species or endangered and threatened 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. DOF proposes to manage the land under a multiple-use management regime consistent with the state forest system, in a manner designed to accomplish the acquisition goals and objectives as approved by the Acquisition and Restoration Council, thus enabling a quicker and more effective land exchange. DOF also proposes to manage the land in a manner consistent with the above mentioned management goal, including, but not limited to, those multiple-uses such as conserving and protecting wildlife habitat, timber management and restoration, ecosystem management and restoration, archaeological and historic sites management, and providing low-impact diverse use recreational opportunities to best balance resource protection needs and the needs of the people of the state. 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 7, Pages 1-80) RECOMMEND APPROVAL ***************************************************** Item 8 BOT/Future Farmers of America Land Disposition Determination/Exchange REQUEST: A discussion on an exchange under which the Board of Trustees would convey a 12.43-acre parcel of Board of Trustees’ land to the Florida Future Farmers of America (FFA) in exchange for a 24.86-acre parcel of land owned by FFA that was approved by the Board of Trustees on January 23, 2001; and confirmation of the Board of Trustees’ previous approval to proceed to closing of the exchange transaction. COUNTY: Polk LOCATION: Sections 10 and 14, Township 29 South, Range 28 East STAFF REMARKS: On January 23, 2001, the Board of Trustees approved the FFA’s requested exchange of 24.86-acres of FFA-owned land for a 12.43-acre parcel of state-owned land located on the periphery of the Catfish Creek CARL project. The state-owned land is currently managed as part of the Allen David Broussard Catfish Creek State Preserve by the Department of Environmental Protections’ Division of Recreation and Parks (DRP). FFA asked to acquire the state-owned parcel to fulfill a development need at its Florida Leadership Training Center that is adjacent to the preserve. FFA has conditioned the exchange on it being a value-for-value transaction. The exchange is in the closing process and expected to be closed by June 2001. During the February 27, 2001 Cabinet Meeting, Dr. Broussard, who contributed funds to The Nature Conservancy, Inc. (TNC) for the initial purchase in the project (which TNC
Board of Trustees Agenda – March 13, 2001 Page Eighteen ***************************************************** Item 8, cont. subsequently sold to the state for the appraised value), expressed his concerns that a part of the original or core project is being exchanged for a lower quality wetland resource. On December 9, 1999, the Land Acquisition and Management Advisory Council (LAMAC) approved the following recommendations: (1) that the state-owned parcel is no longer needed for conservation purposes pursuant to section 253.034(6), F.S.; (2) that the state-owned parcel no longer needs to be preserved in furtherance of the intent of the Preservation 2000 Act pursuant to section 259.101(6)(b), F.S.; (3) that the state will receive property that is of greater resource value than that proposed for transfer; and (4) that the 24.86-acre parcel that the state will receive contains diverse natural communities and would provide a transition zone from xeric uplands to the floodplain along Lake Pierce, as well as 1,200 feet of shoreline. Pursuant to section 18-2.018(3)(b)7., F.A.C., every exchange of natural resource lands shall result in the Board of Trustees acquiring a minimum of twice the amount of acreage being conveyed out of state ownership. The proposed exchange is consistent with this requirement. This exchange and acquisition of the FFA parcel will be in compliance with section 259.041, F.S. The appraised value of the FFA parcel is $27,500 more than the value of the state-owned parcel. DRP will pay the difference in the appraised value, in accordance with section 253.42, F.S. Further, pursuant to Article X, Section 18 of the Florida Constitution, the Board of Trustees shall make a determination that the property is no longer needed for conservation purposes. During the original DSL processing, DRP reviewed the proposed exchange, and felt that it would create a net positive benefit for the preserve. The design of the state-owned parcel was configured to minimize the loss of important resources and potential impacts on other resources within the preserve. The state-owned parcel contains scrubby flatwoods and scrub/xeric hammock. The FFA parcel also contains 7.73 acres of scrub and scrubby flatwoods, but contains an additional four natural community types not found on the state-owned parcel, including 1,200 feet of shoreline on Lake Pierce. These natural communities constitute an important transition zone from the upland scrub and scrubby flatwoods to the marshy shoreline and open water of the lake. The protection of such a substantial length of upland-lake transition should be viewed as critical to successful long-term preservation of a fully functioning Lake Wales Ridge ecosystem at the preserve. In addition to greater diversity on the FFA-owned parcel, FFA has recognized, as a condition of the exchange, that the state parcel will require maintenance through the conducting of resource management activities, in order to maintain its health as a scrub and as scrubby flatwoods. Consequently, FFA has agreed to provide access for preserve staff to the exchanged parcel and a continuation of management activities such as prescribed burning on undeveloped portions of the exchanged parcel, following the exchange. FFA and preserve staff also see a potential for educational opportunities for young people at the FFA center as management activities are conducted here and at other locations within the preserve. (See Attachment 8, Pages 1-12) RECOMMEND confirmation OF THE previous approval, and to proceed WITH THE closing of the FFA exchange ***************************************************** Board of Trustees Agenda – March 13, 2001 2nd Substitute Page Nineteen ***************************************************** 2nd Substitute Item 9 Fiber Optic Cables Status Report/Fee Assessment Procedures/Corridors REQUEST: Consideration of a status report on the evaluation of corridor placement and fee structures for the installation of fiber optic cables on sovereignty submerged lands offshore of the state of Florida. LOCATION: Statewide APPLICANT: Department of Environmental Protection (DEP) STAFF REMARKS: On July 11, 2000, the Board of Trustees approved several staff recommendations for the placement of fiber optic cables (FOCs) on sovereignty submerged lands offshore of the state of Florida, including evaluating the establishment of corridors and fee options. Staff convened an in-house workgroup that met periodically to evaluate these issues, and held two public meetings (October 31, 2000, and February 21, 2001) to solicit input from the industry, environmental groups, and the public on these issues. The following is a summary of the major recommendations, along with a status report on the evaluations conducted and input received, along with preliminary staff proposals on both issues.
Evaluating Private versus Public Easements and Fees Recommendation: At the July 11, 2000 Board of Trustees meeting, staff recommended that the current definition of public utilities be narrowly construed until the emerging issues associated with easements and easement fees could be further evaluated, and the Board of Trustees’ rules revised. Until the rules were revised, offshore FOCs and other offshore telecommunications projects were to be authorized with private easements, unless the applicant could demonstrate that all of the services provided over the FOC or other transmission line were regulated by the Public Service Commission (PSC), unless the applicant was a municipality, other government agency or a rural cooperative. Staff was to solicit outside experts, familiar with FOCs and other utilities, to evaluate various methods for assessing appropriate easement fees, including methods for assessing fees based on the "enhanced value or profit gained by the applicant." This evaluation was to include all types of utilities located on sovereignty submerged lands and uplands owned by the Board of Trustees, and whether there should be fee discounts, waivers, or grandfathering provisions for certain utilities and services. It was also recommended that until the fee evaluation and rule revisions were completed, off-shore FOCs or other telecommunications were to be assessed an interim "enhanced value and profit gained" fee of $5.00 per linear foot, and that any new private easements on sovereignty submerged lands and state-owned uplands be conditioned such that a revised easement fee could be assessed, should the Board of Trustees revise current rules related to easement fees. Status: On August 17, 2000, the Division of State Lands (DSL) contracted with DMG-MAXIMUS (DMG) a governmental consultant with experience and expertise in valuation of uses of public lands, to conduct surveys and gather research data on how fees are evaluated by private and governmental entities for fiber optic cables, telecommunications and other utility easements. The purpose of this study was to provide information concerning the following:
Board of Trustees Agenda – March 13, 2001 Substitute Additional Page Twenty ***************************************************** 2nd Substitute Item 9, cont. On December 22, 2000, DSL received the final report from DMG. The 17 coastal states participating in the survey have established fees to recover a portion or all of the cost for processing applications, and/or fees for the use of the state-owned land. The report concluded that the types and ranges of fees in use by other states and governmental entities varied from state to state. There is an effort by some states to place greater value on the use of lands and rights-of-way than had been done in the past. Generally, fees for the sovereignty submerged lands were expressed as a fixed amount per linear foot, while uplands were always valued at fair market value. The recent trend has been for the agreements for use of state lands to have a term of 10 to 15 years, rather than the previously typical 30 to 50 years. Most agreements allow the states to renegotiate fees at various times during the term of the agreement. Some states are now requiring annual fees, as opposed to the charging of one-time fees. DMG provided valuation models to assist staff in developing compensation formulas for use of state-owned lands. One model provided survey data from various states to determine an average fee per linear foot, identifying the lowest and highest fee charged for use of state land. Fees ranged from $0.45 to $14.81 per linear foot, with an average fee of $3.61 to $3.83. Additionally, California officials told staff that their research indicates a market value range of $3.00 to $5.00 per linear foot per year. The other model considered valuing state-owned lands using an appraised value. In this method, the value of the state-owned lands would be determined by an independent appraisal. Proposal: DEP intends to pursue budget authority for 50 percent of the funds generated to be allocated for restoration, research, monitoring and management of Florida’s coral reefs and other offshore habitats. Based on the findings in the DMG report, the following formulas are provided for consideration. Inside Corridor - Fixed Annual Fee $5.00 per linear foot x Length = Annual Payment Outside Corridor - Market Value Fee Adjacent Upland Value x 50% (discount for sovereignty submerged lands) x Width x Rate of Return = Linear Foot Fee Linear Foot Fee x Length = Annual Payment (Rate of return will be established in rule. Current market indicates between 8-12%) **Both formulas are adjusted annually by the Consumer Price Index. **Examples and definitions of model components attached.
Evaluating Offshore Corridor Routes Recommendation: Staff was to evaluate offshore locations for corridors along Florida's coastline, including the southeast coast where many FOCs are being proposed, that would minimize the impact on sensitive resources, avoid user conflicts, and minimize the disruption of beach nourishment projects. Locating acceptable corridor routes would serve to streamline the future permitting of offshore FOCs. Until the evaluation of corridors was complete, staff was only to authorize easements where an applicant could clearly demonstrate the need for the project. Need could be demonstrated by a Board of Trustees Agenda – March 13, 2001 Substitute Additional Page Twenty-one ***************************************************** 2nd Substitute Item 9, cont. contract for purchase of a cable, a contract for laying the cable, or other appropriate documentation. The environmental impacts of such projects were to be reviewed and addressed on a case-by-case basis, under applicable laws and regulations. Status: As of July 2000, there were five pending offshore FOCs projects, representing a potential of over 50 cables. All of these projects were submitted within a six-month time period. The concern over the cumulative environmental impact, excessive preemption, and conflicts with other sovereignty submerged land uses (including beach nourishment sites) of numerous cables being laid along the coast was the genesis for the corridor concept. Attached is a table that provides a current listing of all permitted and pending projects. Staff has collected all readily available information on the following items, which has been compiled into a series of Geographic Information System (GIS) layers for evaluation purposes:
Staff also consulted with the State Technology Office (STO) on the corridor issue. STO indicated that:
At the October 31, 2000 public meeting, staff requested information from the industry on:
On February 14, 2001, the North American Submarine Cable Association (NASCA) submitted a report from an independent consultant on the expected number of submarine cable systems that might be installed in Florida from 2000 through 2009. The consultant provided a low and high range of between 13 to 33 new cables (this includes the cables approved in 2000 and 2001). NASCA provided a "most likely" scenario of 8 new cable landings by 2009. All landings likely would occur along the state's southeast coast, because the cable routes were likely to connect with the Caribbean, Central America, and South America. On February 21, 2001, staff presented the information it had collected, along with a preliminary corridor concept, at a public meeting. NASCA expressed concerns over corridors for the following reasons.
Board of Trustees Agenda – March 13, 2001 Substitute Additional Page Twenty-two ***************************************************** 2nd Substitute Item 9, cont.
NASCA recommended that the Board of Trustees address both corridors and fees through negotiated rulemaking, which would involve a consensus-based decision making process, conducted by a committee comprised of representatives of all interested stakeholders, to be facilitated by a neutral, impartial facilitator. The Public Employees for Environmental Responsibility (PEER) expressed concerns over any new southeast coast cable systems because of impacts to hardbottom communities, and expressed support for corridors geographically located around the state. PEER also voiced concern over any cable systems routed through the Oculina Bank.
Proposal: Based on the information collected and input received, staff offers the following proposals for the off-shore placement of fiber optic cables.
(See Attachment 9, Pages 1-3) RECOMMEND ACCEPTANCE OF THE STATUS REPORT AND POSSIBLE DIRECTION TO STAFF FROM THE BOARD OF TRUSTEES ***************************************************** |
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