The Governor and Cabinet - Florida Department of State

Cabinet Affairs

AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

APRIL 15, 1997

Item 1 Minutes

Submittal of the minutes of the February 11, 1997, and February 25, 1997 Cabinet meetings.

RECOMMEND ACCEPTANCE

Item 2 Lawson/Smith/Crowell Purchase Agreement/Survey Waiver/Belle Meade CARL Project

REQUEST: Consideration of (1) a purchase agreement to acquire 39.51 acres within the Belle Meade CARL project from Anne C. Lawson, Tracey C. Smith, Andrew R. Crowell and David C. Crowell; and (2) a request for survey waiver.

COUNTY: Collier

LOCATION: Section 26, Township 50 South, Range 27 East

CONSIDERATION: $79,020

APPRAISED BY

REVIEW PARCEL (Dane) APPROVED PURCHASE CLOSING

NO. NO. OWNER ACRES (11/28/95) VALUE PRICE DATE

706001 334 Lawson, et al. 39.51 $ 79,020 $ 79,020 $ 79,020 6 months after BOT

approval

STAFF REMARKS: The Belle Meade CARL project is ranked number 3 on the CARL Priority Project List approved by the Board of Trustees on February 13, 1996, and is eligible for purchase under the Division of State Lands' Land Acquisition Workplan. This project contains 19,227 acres, of which 8,441 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement and other agreements in the Belle Meade project presented today, 10,253 acres or 53 percent of the project will remain to be acquired.

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 waiver of the requirement for survey of this parcel is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Surveying and Mapping, the parcel to be acquired meets all of the following conditions:

the parcel is surrounded by state-owned land or surrounded by land the state intends to acquire;
the parcel or the parent tract has been surveyed since 1900, and the survey drawing is acceptable for computing acreage;
the parcel is in its natural unimproved condition; and
the boundary of the parcel does not adjoin fences or improvements other than those managed or intended to be managed the state.

While this parcel is being recommended for a waiver of survey at this time, should the title commitment reveal a substantive surveying or surveying related issue which impacts the parcel, a certified survey will be provided by the purchaser prior to closing. In the event a full survey is waived, a professional land surveyor will inspect the property for any visible

Board of Trustees

Agenda - April 15, 1997 Page Two

Item 2, cont.

evidence of improvements or potential boundary issues. In cooperation with the managing agency, the Division of State Lands will acquire any special purpose survey work necessary for the effective management of the property.

An environmental site assessment and title insurance policy will be provided by purchaser prior to closing.

The cypress swamps and old-growth slash pine flatwoods in the Belle Meade project, extending to the fast-developing suburbs of Naples, are still important for such endangered wildlife as Florida panthers, red-cockaded woodpeckers, and Florida black bear. Belle Meade is also the watershed for Rookery Bay. The Belle Meade CARL project will conserve the westernmost large natural area in southwest Florida, protect some of the southernmost populations of several rare animals, and help protect the quality of the subtropical estuary of Rookery Bay by preserving the critical hydrological connection from the flatwoods and swamps to the bay, while providing a large area for recreation in a natural environment to residents of and visitors to rapidly urbanizing southwest Florida.

This property will be managed by the Department of Agriculture and Consumer Services, Division of Forestry as part of the Picayune Strand State Forest.

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 1-8)

RECOMMEND APPROVAL

Item 3 Ellwood H. Witt, Sr. Option Agreements/Survey Waiver/Belle Meade CARL Project

REQUEST: Consideration of (1) three option agreements to acquire 493.3 acres within the Belle Meade CARL project from Ellwood H. Witt, Sr., as Trustee under Land Trust Witt Trust #3, under Trust LT-50-1053 and under Trust LT-50-1071; and (2) a request for survey waiver.

COUNTY: Collier

LOCATION: Section 36, Township 50 South, Range 26 East

CONSIDERATION: $937,030

APPRAISED BY

REVIEW Dane Catlett APPROVED PURCHASE OPTION

NO. PARCEL ACRES (12/28/95) (11/14/95) VALUE PRICE DATE

706002 56-Witt Trust 163.60 $294,480 $327,200 $327,200 $310,600 06/30/97

706003 57-Witt Trust 165.70 $298,260 $331,400 $331,400 $314,830 06/30/97

706004 59-Witt Trust 164.00 $295,200 $328,000 $328,000 $311,600 06/30/97

493.30 $986,600 $937,030

Board of Trustees

Agenda - April 15, 1997 Page Three

Item 3, cont.

acquired. After the Board of Trustees approves this agreement and other agreements in the Belle Meade project presented today, 10,253 acres or 53 percent of the project will remain to be acquired.

A waiver of the requirement for survey of these parcels is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Surveying and Mapping, the parcels to be acquired meet the following conditions:

the parcels or the parent tract have been surveyed since 1900, and the survey drawing is acceptable for computing acreage;
the parcels are in their natural unimproved condition;
parcel 57 is surrounded by state-owned land or surrounded by land the state intends to acquire; and
the boundary of parcel 57 does not adjoin fences or improvements other than those managed or intended to be managed by the state.

While these parcels are being recommended for a waiver of survey at this time, should the title commitments reveal a substantive surveying or surveying related issue which impacts the parcels, a certified survey will be provided by the purchaser prior to closing. In the event a full survey is waived, a professional land surveyor will inspect the property for any visible evidence of improvements or potential boundary issues. In cooperation with the managing agency, the Division of State Lands will acquire any special purpose survey work necessary for the effective management of the property.

An environmental site assessment will be provided by purchaser prior to closing.

This property will be managed by the Department of Agriculture and Consumer Services, Division of Forestry as part of the Picayune Strand State Forest.

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 1-47)

RECOMMEND APPROVAL

Board of Trustees

Agenda - April 15, 1997 Page Four

Item 4 Woodrow W. Woody, Purchase Agreement/Department of Agriculture and Consumer Services, Division of Forestry/Tiger Bay State Forest

REQUEST: Consideration of a purchase agreement to acquire 955.58 acres by the Board of Trustees for the benefit of the Department of Agriculture and Consumer Services, Division of Forestry from Woodrow W. Woody, as Trustee.

COUNTY: Volusia

APPLICANT: Department of Agriculture and Consumer Services, Division of Forestry

LOCATION: Sections 15, 16, 22 and 27, Township 16 South, Range 31 East

CONSIDERATION: $970,000

APPRAISED BY

REVIEW PORTER MARSHALL APPROVED PURCHASE CLOSING

NO. PARCEL ACRES (03/02/95) (03/02/95) VALUE PRICE DATE

706005 Woody 955.58 $860,000 $985,000 $985,000 $970,000 120 days

after BOT

approval

STAFF REMARKS: This acquisition was negotiated by the Department of Agriculture and Consumer Services, Division of Forestry (DOF) under its Preservation 2000 Additions and Inholdings Program.

All mortgages and liens will be satisfied at the time of closing. Preliminary title information has indicated there are outstanding oil, gas and mineral interests encumbering the subject property. The seller will not acquire the outstanding mineral interest. The Bureau of Geology believes that there are no minerals with economic value and potential for oil and gas production is very low. The Bureau of Appraisal has indicated that the outstanding interests do not affect the market value of the property. Since Tiger Bay State Forest has similar types of outstanding interests, the DOF has determined that the property can be effectively managed subject to the outstanding oil, gas and mineral interests. 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 parcel or the proposed management of the parcel, staff will so advise the Board of Trustees prior to closing.

A survey and environmental site assessment of the property will be provided by the DOF prior to closing. DOF will reimburse the seller for the cost of the title insurance commitment and policy. The reimbursement shall not exceed the minimum promulgated rate.

This property will be managed by the DOF as part of Tiger Bay State Forest. This parcel is adjacent to the Tiger Bay State Forest and will consolidate state forest boundaries in the area, provide access, and improve overall management of the forest. This property will be managed for natural resource conservation and outdoor recreation activities under a multiple-use management regime.

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 1-31)

RECOMMEND APPROVAL

Board of Trustees

Agenda - April 15, 1997 Page Five

Item 5 The Nature Conservancy, Inc. (Saxon Groves) Assignment of Option Agreement/Lake Wales Ridge Ecosystems CARL Project

REQUEST: Consideration of the acceptance of an assignment of an option agreement to acquire approximately 403.8 acres within the Lake Wales Ridge Ecosystems (Silver Lake) CARL project from The Nature Conservancy, Inc. (TNC).

COUNTY: Highlands

LOCATION: Sections 28 and 33, Township 33 South, Range 28 East

CONSIDERATION: $1,037,120 ($1,012,000 for the acquisition; $25,120 for the purchase of the option agreement)

APPRAISED BY

REVIEW Miller Rex APPROVED PURCHASE OPTION

NO. PARCEL ACRES (03/26/96)* (03/15/96)* VALUE PRICE DATE

706006 Saxon Groves 403.8 $1,100,000 $1,100,000 $1,100,000 $1,012,000 150 days

after BOT * appraisals were revised on March 11, 1997 approval

STAFF REMARKS: The Lake Wales Ridge Ecosystems CARL project is ranked number 1 on the CARL Priority Project List approved by the Board of Trustees on February 13, 1996, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. This project contains 33,031 acres, of which 1,250 acres have been acquired by Southwest Florida Water Management District and 12,030 acres have been acquired or are under agreement to be acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 19,347.2 acres or 59 percent of the project will remain to be acquired.

Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands (DSL) and TNC, TNC has acquired an option to purchase this 403.8-acre parcel from Saxon Groves, Inc., a Florida corporation. After this acquisition is approved, the Board of Trustees will acquire the option from TNC for $25,120, which represents agreed upon compensation to TNC for overhead associated with acquiring the option. The Board of Trustees 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 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.

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 or proposed management of the property, staff will so advise the Board of Trustees.

The option agreement requires the seller to vacate approximately 7.7 acres of platted right-of-way prior to closing. The survey will be provided by the purchaser. The environmental site assessment will be provided by the seller and the purchaser will reimburse the cost of the assessment, not to exceed $6,000, after closing.

The high, sandy, Lake Wales Ridge, stretching south from near Orlando almost to Lake Okeechobee, was originally covered with a mosaic of scrub, flatwoods, wetlands, and lakes. The scrub is unique in the world - it is inhabited by many plants and animals found nowhere else - but it has almost completely been converted to citrus groves and housing developments. The Lake Wales Ridge Ecosystems CARL project is designed to protect the best remaining tracts of this scrub and the ecosystems associated with it, thereby preserving several

Board of Trustees

Agenda - April 15, 1997 Page Six

Item 5, cont.

endangered species and allowing the public to see examples of the unique original landscape of the ridge.

This property will be managed by the Florida Game and Fresh Water Fish Commission under a single-use concept as part of a wildlife and environmental area.

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 1-38)

RECOMMEND APPROVAL

Item 6 Chapter 18-21, F.A.C. Amendments

REQUEST: Consideration of a request to initiate formal rulemaking process and amend Rule 18-21.019, F.A.C.

APPLICANT: Division of State Lands

LOCATION: Statewide

STAFF REMARKS: On March 28, 1996, the Board of Trustees approved a request to repeal sections 18-21.014, 18-21.015, 18-21.017 and 18-21.018 and to amend sections 18-21.019, F.A.C. The purpose of the rule amendment was to consolidate and clarify the application process to clear title to filled formerly submerged, sovereignty lands and for reclamation of lands lost due to an avulsive event as well as to standardize related fees.

On April 2, 1996, the Joint Administrative Procedures Committee contacted the Department of Environmental Protection and requested that the rule be amended for a second time to provide a citation for the public interest test and to clarify referenced forms. This proposed amendment will satisfy that request.

Notice of rule development was published in the Florida Administrative Weekly on December 27, 1996. No requests for a Rule Development Workshop were received.

(See Attachment 6, Pages 1-23)

RECOMMEND APPROVAL

Item 7 Amendments to St. Joseph Bay Aquatic Preserve Management Plan/ Chapter 18-20, F.A.C. Amendments

REQUEST: (1) Adoption of amendments to the St. Joseph Bay Aquatic Preserve Management Plan to manage beach driving; and (2) adoption of an amendment to section 18-20.004(7), F.A.C. to incorporate the amended plan into the rule.

COUNTY: Gulf

Board of Trustees

Agenda - April 15, 1997 Page Seven

Item 7, cont.

APPLICANT: Florida Department of Environmental Protection

STAFF REMARKS: Gulf County is one of seven counties that continue to allow beach driving on portions of their beaches. Beach driving can damage emergent vegetation and dunes, thereby reducing the protection afforded by the beach dune system. Driving and its effects can also damage turtle nests and kill hatchlings as well as disturb nesting and resting birds, and pose a threat to public beach users.

In recent years the Florida Department of Environmental Protection (FDEP) has become concerned with the impacts of beach driving on the aquatic preserve portion of Cape San Blas. On March 29, 1996, the FDEP held a public workshop in Gulf County to discuss proposed changes to the St. Joseph Bay Aquatic Preserve Management Plan which would eliminate beach driving on sovereign submerged lands within St. Joseph Bay Aquatic Preserve and the adjacent sandy beach.

A similar provision, approved through the same process, that is, amendment to the plan and subsequent adoption by reference into the rule, was included in the Guana River Marsh Aquatic Preserve Management Plan in 1991. The provision was challenged but was upheld by the Fifth District Court of Appeal in November of 1994.

The majority of those in attendance at the March 29, 1996 workshop opposed closing the beach to driving. Following the workshop, the Gulf County Commission requested a meeting with representatives of the FDEP to discuss a compromise. As a result, at a June 11, 1996 meeting the FDEP and the Gulf County Commission agreed to appoint a working group (membership attached) whose charge would be to recommend to the FDEP actions relating to beach driving that would afford the same protections to the beach resources that eliminating driving would do. The goal established was to have the recommended action in place by Memorial Day weekend, which begins May 24, 1997.

The attached proposed amendment to the management plan includes the recommendation arrived at by the working group as modified to address comments received from the Joint Administrative Procedures Committee and the public at a public hearing held March 14, 1997. A summary of the hearing is attached.

The county has agreed to implement and enforce Option 2 requirements 1, 2, 3 and 4b as well as the guidelines. This option includes the establishment of a buffer zone, closure during high water, extra enforcement on holidays, closure at night during turtle nesting season, removal of ruts, and turtle patrol during the nesting season. Other actions include education, reporting, and a fall back to total closure under certain circumstances.

The management plan amendment must be approved by the Board of Trustees and the amended plan must be incorporated into chapter 18-20, F.A.C. The proposed rule amendment is attached.

(See Attachment 7, Pages 1-14)

RECOMMEND APPROVAL

Board of Trustees

Agenda - April 15, 1997 Page Eight

Item 8 Chapter 18-20, F.A.C. Amendments

REQUEST: Consideration of adoption of amendments to chapter 18-20, F.A.C., to add standards and criteria for urban and freshwater aquatic preserves and to update the remainder of the rule.

COUNTY: Statewide

APPLICANT: Department of Environmental Protection

STAFF REMARKS: The Department of Environmental Protection (DEP), as staff to the Board of Trustees, has initiated rulemaking to establish specific criteria for residential docking facilities in urban and freshwater aquatic preserves. This rulemaking is required in accordance with amendments to section 258.42(1)(b), F.S., which passed in the last legislative session (Section 7, HB 605, Chapter 96-247, Laws of Florida). The law became effective October 1, 1996.

The proposed rules modify criteria for constructing docking facilities in one freshwater and two urban aquatic preserves. To accomplish this, the existing section 18-20.017, F.A.C., which is specific for the freshwater Lake Jackson Aquatic Preserve, has been modified and a new section 18-20.019, F.A.C., specific to the urban Boca Ciega Bay and Pinellas County Aquatic Preserves, has been added. As part of the above legislative requirement, section 18-20.018, F.A.C., which governs standards and criteria for docking facilities in the Lake Weir Aquatic Preserve, was adopted at the March 25, 1997, Board of Trustees' meeting.

The standards and criteria for the Lake Jackson Aquatic Preserve were developed in recognition of the freshwater nature, extreme water level fluctuations, aquatic vegetation characteristics, local regulations, and historic building practices that are unique to the lake. These will supersede the existing standards and criteria for docking facilities, which were written primarily for marine and estuarine systems. Most of the standards and criteria were either copied unchanged, or modified from the existing criteria in rule 18-20.004(5), F.A.C. The intent was to include all relevant criteria for docking facilities in the revised section 18-20.017, F.A.C., to facilitate use and understanding of the rule by staff and the public. New language also is added regarding the continued use, maintenance, and restoration of docking facilities to address situations where structures fall into a state of disrepair or are otherwise destroyed. An explanation of the standards and criteria specific to Lake Jackson is contained in the attached statement of facts and circumstances.

The docking standards and criteria proposed for Boca Ciega Bay and Pinellas County Aquatic Preserves take into account the urban nature of the preserve, local government standards that have been applied over the years, and the history of prior application of chapter 18-20, F.A.C., by the county and the DEP. Most of the standards and criteria were either copied unchanged, or modified from the existing criteria in rule 18-20.004(5), F.A.C. The intent was to include all relevant criteria for docking facilities into the new section 18-20.019, F.A.C., to facilitate use and understanding of the rule by staff and the public. New language also was added regarding the continued use, maintenance, and restoration of docking facilities to address situations where structures fall into a state of disrepair or are otherwise destroyed. An explanation of the standards and criteria specific to the Boca Ciega Bay and Pinellas County Aquatic Preserves is contained in the attached statement of facts and circumstances.

In addition to adopting the standards and criteria for urban and freshwater aquatic preserves, the DEP also proposes, as part of this rulemaking effort, to do a minor "clean-up" of other portions of chapter 18-20, F.A.C. The purposes of this cleanup are to correct grammatical and typographical errors, update obsolete language, conform language to statutory language, and improve the clarity of the rule. Some of these revisions also serve to settle a pending rule

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Agenda - April 15, 1997 Page Nine

Item 8, cont.

challenge to chapter 18-20, F.A.C., by improving specificity and clarity in the definition and dock criteria (OGC Case No. 97-1096RP).

The DEP conducted three public workshops on this rule on November 13, 14 and 22, 1996, in Leon, Dade and Pinellas Counties. A public hearing was held on March 13, 1997, in Pinellas County to accept final public input on the rule prior to adoption by the Board of Trustees. At the hearing, staff proposed 48 amendments that addressed: (1) concerns raised by the Joint Administrative Procedures Committee during a review of similar rule language in the related Lake Weir rulemaking effort; and (2) comments received from the public, including Pinellas County, prior to the hearing. A report of the hearing is in the backup. The only points of disagreement raised during the hearing were a request for the allowance of up to a 500 square-foot terminal platform when located in a Resource Protection Area 3 (staff does not recommend this change), and a request to delete the one-foot of clearance required between a vessel and the water bottom for commercial, industrial and other revenue generating/income producing docks (staff recommends this change with substitute language to instead add a three-foot water depth requirement). As a result of the hearing, staff is now recommending adoption of the rule as published on February 14, 1997, together with the recommended staff amendments, which incorporate changes presented at the hearing on March 13, 1997.

(See Attachment 8, Pages 1-41)

RECOMMEND APPROVAL OF THE ADOPTION OF PUBLISHED CHANGES TO CHAPTER 18-20 AND ADOPTION OF RECOMMENDED STAFF AMENDMENTS DATED MARCH 31, 1997.

Item 9 Cross State Towing Company Submerged Land Lease

DEFERRED FROM MARCH 11, 1997 AGENDA

DEFERRED FROM NOVEMBER 19, 1996 AGENDA

REQUEST: Consideration of an application for a modification of a fiveyear sovereignty submerged land lease to contain a total of 128,308 square feet, more or less, for an expansion of a commercial marine repair facility.

COUNTY: Duval

Lease No. 160302692

APPLICANT: Cross State Towing Company

LOCATION: Section 41, Township 02 South, Range 27 East, in the St. Johns River, Class

III waters, within the local jurisdiction of the City of Jacksonville.

Aquatic Preserve: No

Outstanding Florida Waters: No

CONSIDERATION: (Lessee's request for a 128,308 square-foot lease area) $28,064.37 representing (1) $15,564.37 as the initial lease fee, computed at the base rate of $0.1101 per square foot, and including the initial 25 percent surcharge payment for the additional area; and (2) $12,500 as an administrative fine for the unauthorized use of sovereignty submerged land. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lessee has paid

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Agenda - April 15, 1997 Page Ten

Item 9, cont.

the administrative fine; lease fees may be adjusted based on a revised survey.

(Staff's recommendation for an 87,637 square-foot lease area) $22,467.02 representing (1) $9,967.02 as the initial lease fee, computed at the base rate of $0.1101 per square foot, and including the initial 25 percent surcharge payment for the additional area; and (2) $12,500 as an administrative fine for the unauthorized use of sovereignty submerged land. The lessee has paid the administrative fine; lease fees may be adjusted based on a revised survey; and lease fees in arrears may be assessed.

STAFF REMARKS: On November 19,1996, the Board of Trustees deferred this request to the first meeting in March 1997 to allow the City of Jacksonville (City) time to negotiate a resolution of their concerns with the lessee and to consider adoption of a City resolution, either in support of a modified lease area or support or opposition to the lessee's request. On March 11, 1997, the Board of Trustees again deferred the request until April 15, 1997, so that the City and the lessee could continue to negotiate a settlement. To date no agreement has been reached between the lessee and the City. As of April 1, 1997, the City has not adopted a resolution either in support of or in opposition to the lessee's request. Therefore, staff is recommending that the Board of Trustees approve a compromise lease area encompassing the existing 76,077 square-foot lease area and the additional 11,560 square feet of the Temporary Use Agreement (TUA) area, for a total modified lease area of 87,637 square feet. This will bring the lessee into compliance.

The lessee is requesting after-the-fact authorization to expand an existing commercial marine repair facility presently used in conjunction with an upland barge and small vessel repair facility by adding 52,231 square feet. A TUA had been issued for the dock and mooring area located outside the existing nearshore lease area. The lessee is requesting that the existing lease area be expanded to include the TUA area of 11,560 square feet plus an additional mooring area of 40,671 square feet. However, the requested expansion is controversial with the City and local residents. Therefore, staff is recommending that the Board of Trustees approve a compromise lease area encompassing the TUA area only for an additional 11,560 square feet.

On May 5, 1981, the Board of Trustees granted the lessee an original lease area containing 24,475 square feet of sovereignty submerged lands for docks and a mooring area along the lessee's shoreline. The lease was subsequently modified for a total of 32,077 square feet. On December 13, 1994, the Board of Trustees granted the lessee a separate offshore lease area containing 44,000 square feet, for an additional area to moor vessels. Combined, the two lease areas total 76,077 square feet. The City considered the offshore lease area to be inconsistent with its local comprehensive plan. The lessee is now requesting an additional 52,231 square feet to expand the nearshore portion of the lease area. The City has stated that the nearshore expansion is also inconsistent with its local comprehensive plan. The lessee's proposed expansion is consistent with rule criteria governing the use of sovereignty submerged lands. However, because of the City's objection to the proposal, the amount of sovereignty submerged lands already under lease, and the history associated with the proposal, staff recommends a compromise to the lessee's request that allows the addition of only the TUA area, 11,560 square feet.

The request for a lease for the offshore mooring area was deferred from the November 22, 1994 Board of Trustees meeting to the December 13, 1994 meeting. It was during the November 16, 1994 Cabinet Aides meeting that Department of Environmental Protection (DEP) agenda staff became aware of possible violations at the existing nearshore lease site. Therefore, the request was deferred so that staff could respond to information indicating that Board of Trustees

Agenda - April 15, 1997 Page Eleven

Item 9, cont.

there were barges being moored outside the nearshore lease area and a dock extended beyond the lease boundary. Following the meeting, enforcement staff were asked to conduct a site inspection and to specifically verify whether there were mooring and/or structure violations. Enforcement field staff were already working with the lessee to correct the mooring violations. The inspection requested by agenda staff revealed a docking structure outside the lease area and the need for Cross State Towing to obtain temporary authorization for the portion of the dock that extended beyond the lease area. Pursuant to the Board of Trustees' policy, violations should be corrected or, if consistent with rule, placed under TUA prior to the Board of Trustees' consideration. The DEP continued as scheduled to the Board of Trustees with the offshore lease area request because it was viewed as a resolution to unauthorized mooring of vessels by the lessee at another offshore site in the river. The Board of Trustees approved the request for the offshore lease area on December 13, 1994, contingent upon the removal of sunken and derelict barges located outside the nearshore lease area and strict adherence to the boundaries of both lease areas.

Upon compliance with the Board of Trustees' directive to remove the barges and upon receipt of fees assessed for the unauthorized use of sovereignty lands, staff issued a TUA on March 1, 1995, for 11,560 square feet for the portion of the dock extending beyond the nearshore lease boundary and an adjacent mooring area. The TUA provided temporary authorization for use of sovereignty lands for a period of time to allow the lessee time to pursue and obtain a modified lease for the additional area. The TUA was extended from June 1, 1995, to November 28, 1995, to accommodate the City's request to hold a public hearing in Jacksonville on the proposed lease modification. The TUA was again extended to February 13, 1996, to allow the DEP to study and respond to all of the issues raised at the public hearing. The TUA has expired; however, the lessee was given additional time to meet with the City to negotiate a lease area that would be mutually agreeable for presentation to the Board of Trustees. The DEP sent letters to the lessee June 14 and August 16, 1996, giving a final 30-day period to work out an agreeable lease area or remove the portion of the dock that extends beyond the existing lease area. The lessee's request is being presented to the Board of Trustees for consideration because the requested expansion exceeds delegated authority and the request represents an issue of heightened public concern.

A public hearing was conducted by DEP district staff in Jacksonville on September 27, 1995, to gather local public comment concerning this lease modification request and to present it to the Board of Trustees for consideration. A complete public hearing report is attached.

In summary, the majority of the objections to the proposed expansion pertained to boating safety, upland property values and zoning, and manatee safety.

The City specifically objects to the proposed modified lease for the following stated reasons:

(1) Navigational and safety hazards: this issue has been addressed by the Florida Marine Patrol which states no objection because the subject site is in a year-round slow speed/minimum wake area established to protect manatees and that boaters operating their vessels in accordance with the restrictions in place (including posted signs) should be traveling at slow speed, thereby drastically reducing the risk of collision. Additionally, the U.S. Coast Guard's marking/lighting requirement is included as a special lease condition;

(2) The lessee's past history of lease violations: this has been addressed through authorization of an offshore lease area and the TUA process;

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Agenda - April 15, 1997 Page Twelve

Item 9, cont.

(3) Contrary to the public interest: the lessee's request is consistent with applicable

rules governing the use of sovereignty submerged lands;

(4) Contrary to the City's Comprehensive Plan: the issue is an item for consideration by the Board of Trustees as part of its consideration of granting, modifying, or denying additional use of sovereignty submerged lands under the lessee's request;

(5) Contrary to the State Lands Management Plan: the DEP has reviewed the lessee's proposal with the Conceptual State Lands Management Plan adopted March 17, 1981, and finds no inconsistencies with the provisions of the plan;

(6) Arbitrary and capricious: the DEP has evaluated the proposal and offered its recommendation consistent with applicable state lands rules and due consideration of the issues;

(7) Inconsistent with upland zoning: staff considers this a local issue. The requested expansion is within the riparian area of a locally zoned upland commercial site and is consistent with sovereignty submerged lands rules; and

(8) Manatee safety: staff is of the opinion that this issue is addressed by the existence of a slow speed/minimum wake zone and by the continued inclusion of special lease conditions as recommended by the Division of Marine Resources in the proposed lease regarding manatee protection conditions, an informational display and awareness signs, and a bumper/fender system.

Staff is of the opinion that all concerns of the public hearing and the City have been addressed within staff's purview. In addition, the proposed modification request is in compliance with chapter 18-21, F.A.C., and there are no objections from other agencies. Staff can find no specific grounds to recommend denial of the lessee's entire request based on state lands rule criteria. However, staff is sensitive to the implied conflict with local public interest when there is continued and repeated local government opposition to a proposal before the DEP and the Board of Trustees. Therefore, staff is suggesting a compromise lease area of only the TUA area, containing 11,560 square feet, which is the area that would have been authorized for lease at the time the wetland resource permit was issued in 1981. Staff has identified this compromise lease area for the Board of Trustees' consideration along with the Board of Trustees' consideration of the policy issue related to the fact that the City opposes the lease expansion and has stated, by resolution, that it would not be consistent with the local comprehensive plan.

The Board of Trustees adopted an administrative fine policy on August 14, 1990. Based on that policy, staff is requesting the Board of Trustees assess an administrative fine for the unauthorized use of sovereignty submerged lands resulting from the construction of the dock and mooring outside the lease boundary. Staff proposed calculating the administrative fine, pursuant to Board of Trustees' policy, at the rate of $0.50 per square foot. However, because the fine is more than the maximum base fine, the maximum base fine of $2,500 will apply. A multiplier of one is applied since staff is recommending approval of the previously unauthorized activity ($2,500). A multiplier of four is applied because the existing facility was under lease which constitutes written notice ($10,000). The total recommended administrative fine is $12,500, which the lessee has already paid. If the Board of Trustees authorizes the area previously under TUA, no lease fees in arrears will be assessed from February 13, 1996, the expiration date of the TUA, because that area has not been used.

Board of Trustees

Agenda - April 15, 1997 Page Thirteen

Item 9, cont.

A DEP wetland resource permit is not required because this modification request is for an expanded lease area only, with no new dredging or construction. Recommendations of the Division of Marine Resources in the current lease will continue to be included as special lease conditions. There is no submerged vegetation or other significant submerged resource in the proposed lease area.

A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan is not in compliance. In accordance with the Compliance Agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The City stated that this modification request would not be consistent with the amended comprehensive plan.

(See Attachment 9, Pages 1-43)

RECOMMEND (1) DENIAL OF THE LESSEE'S REQUEST; AND (2) APPROVAL OF A MODIFIED LEASE FOR 87,637 SQUARE FEET SUBJECT TO THE SPECIAL APPROVAL CONDITION, THE SPECIAL LEASE CONDITIONS, AND PAYMENT OF $9,967.02 AS THE INITIAL LEASE FEE AND $12,500 AS AN ADMINISTRATIVE FINE.

Item 10 Charles River Laboratories, Inc. Lease Revocation

REQUEST: (1) Approval to seek immediate revocation of sovereignty submerged land leases, termination of monkey breeding operations, and removal of all monkeys and structures on two islands on account of breach of the Settlement Agreement in the case of Charles River Laboratories, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 86-190-CA-13, 16th Judicial Circuit Court; and (2) approval of instituting further proceedings for trespass, eviction, environmental violations, and natural resources damages.

COUNTY: Monroe

LOCATION: Key Lois and Raccoon Key

STAFF REMARKS: Charles River Laboratories, Inc. (CRL) and the Board of Trustees of the Internal Improvement Trust Fund (BOT) resolved the above circuit court case, which CRL filed as a quiet title action, by entry of a Settlement Agreement and Consent Final Judgment on September 14, 1992. The Settlement Agreement, which incorporates two Consent Orders entered in 1988, required CRL to fully restore the vast damage to mangroves and other vegetation caused by the company's rhesus monkey breeding operations on the two islands; prohibited CRL from causing or allowing further damage to the islands; required CRL to exclude monkeys from the shoreline and certain areas of the islands by way of chain link fences; required CRL to monitor for and meet water quality standards; required the company to obtain all necessary governmental permits for its structures on the islands; required and authorized leases for use of sovereignty submerged lands; and provided deadlines for phasing out free-ranging monkeys, ceasing operations and removing all monkeys and structures, and conveying the uplands of the islands to the BOT (Key Lois) and the U.S. Fish and Wildlife Service (Raccoon Key).

Board of Trustees

Agenda - April 15, 1997 Page Fourteen

Item 10, cont.

The restoration work is long overdue, and the failure of CRL to perform any meaningful restoration has allowed substantial erosion and loss of shoreline to occur. Significant new damage to vegetation on the islands continues to occur, and CRL appears unwilling or unable to restrict the movement of free-ranging monkeys about and beyond the islands by electrified fences or other means. Water quality violations have been detected on the islands by CRL, and more recently by Department of Environmental Protection inspectors. CRL failed to apply for and obtain county permits for all structures on the islands. The Department of Community Affairs successfully challenged the issuance of county permits to CRL on account of inconsistency with the Monroe County Comprehensive Plan and land development regulations, which challenge was forged into a Final Order by unanimous vote by the Florida Land and Water Adjudicatory Commission (FLAWAC) on March 11, 1997. A final order by the Florida Game and Fresh Water Fish Commission (FGFWFC) is also pending on CRL's legal challenge to FGFWFC's efforts to accelerate removal of free-ranging monkeys from the islands.

On November 4, 1995, the BOT filed a Motion to Enforce Consent Final Judgment in the circuit court action. CRL engaged the BOT in rounds of settlement discussions, effectively delaying progress in the enforcement proceedings. Upon rejecting CRL's most recent settlement offer for the BOT to purchase CRL's diminishing interest in title to the uplands of the islands for five million dollars, the BOT set the Motion to Enforce for a three day hearing beginning July 9, 1997.

The BOT entered into the Consent Final Judgment, agreeing to a generous phase-out of the free-ranging monkeys (June 15, 2003 for Key Lois, June 15, 2008 for Raccoon Key), on the basis that no further damage to the islands would occur, the restoration work would be performed in a timely and workmanlike fashion, and that all necessary permits had been or would be obtained. Continuing to allow monkeys to roam the islands will only allow further vegetative destruction and shoreline erosion and will not permit successful restoration of the islands. Construction of additional cages on the islands to confine the remaining free-range monkey population does not appear to be a viable option, given FLAWAC's recent ruling that such structures are illegal and unpermittable. The most sound option, then, would be to seek immediate termination of monkey breeding operations and removal of all monkeys and structures.

(See Attachment 10, Pages 1-29)

RECOMMEND APPROVAL

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

Item 11 Mitigation Banking Projects Status Report

REQUEST: (1) Consideration of the status of the North Dike at East Central Florida Mitigation Bank, the East Point Reservoir Mitigation Bank, the St. Johns River Mitigation Bank, and the Lake Louisa & Green Swamp Mitigation Bank - Phase II, on sovereign submerged lands; and (2) the exclusion of the North Dike at East Central Florida Mitigation Bank and portions of the St. Johns River Mitigation Bank from the moratorium concerning the use of Board of Trustees' lands for mitigation banking approved by the Board of Trustees (BOT) on February 25, 1997.

Board of Trustees

Agenda - April 15, 1997 Page Fifteen

Item 11, cont.

APPLICANTS: Ecobank (North Dike at East Central Florida Mitigation Bank)

Deseret Ranches of Florida (East Point Reservoir Mitigation Bank)

A. Duda & Sons (St. Johns River Mitigation Bank)

Ecobank (Lake Louisa & Green Swamp Mitigation Bank - Phase 2)

COUNTIES: Ecobank (North Dike at East Central Florida Mitigation Bank ): Seminole County, Application No. 4-117-0450A-ERP

Deseret Ranches of Florida (East Point Reservoir Mitigation Bank): Brevard County, Application No. 4-009-0557A-ERP

A. Duda & Sons (St. Johns River Mitigation Bank):

Brevard County, Application No. 4-009-0561AC-ERP

Ecobank (Lake Louisa & Green Swamp Mitigation Bank - Phase 2):

Lake County, Application No. 4-069-0313AM-ERP

LOCATIONS: Ecobank (North Dike at East Central Florida Mitigation Bank)

Sections 21, 27, 28, Township 21 South, Range 33 East

Along the St. Johns River near Puzzle Lake

Aquatic Preserve: No OFW: No

Deseret Ranches of Florida (East Point Reservoir Mitigation Bank)

Sections 2, 11, 12, Township 27 South, Range 35 East

Along the St. Johns River west of Lake Washington

Aquatic Preserve: No OFW: No

A. Duda & Sons (St. Johns River Mitigation Bank)

Sections 25, 26, 27, 33, 34, 35, 36, T 25 South, R 35 East

Sections 30, 31, Township 25 South, Range 36 East

Sections 1, 2, 3, 4, 8, 9, 10, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, Township 26 South, R 35 East

Sections 28, 29, 30, 32, 33, 34, T 26 South, R 36 East

Along the St. Johns River east of Lake Winder

Aquatic Preserve: No OFW: No

Ecobank (Lake Louisa & Green Swamp Mitigation Bank - Phase 2)

Sections 1, 2, 11, 12, Township 24 South, Range 25 East

Section 35, Township 23 South, Range 25 East

Southwest of Lake Louisa

Aquatic Preserve: No OFW: No

STAFF REMARKS: Project description and status of each of the four pending mitigation bank proposals follows.

Status of the application by Ecobank for the North Dike at East Central Florida Mitigation Bank. On September 23, 1996, the St. Johns River Water Management District (SJRWMD) received a permit application to construct and operate a 346-acre mitigation bank which involves the restoration of St. Johns River floodplain marsh from the existing agriculturally-altered land. Dikes were constructed on the site in the early 1970's and the interior was ditched, bedded, and drained with a large pump to facilitate the growth of pasture grasses for cattle. The use of the site as cattle pasture has continued through the present. The permit application is presently incomplete, but is nearing completion. Figure 1 shows the location of the proposed mitigation bank.

An Ordinary High Water Line (OHWL) survey has not yet been done for this site, but correspondence from the Department of Environmental Protection's Bureau of Survey & Mapping indicates that approximately half of the site may be sovereign submerged lands.

Board of Trustees

Agenda - April 15, 1997 Page Sixteen

Item 11, cont.

Much of the work being proposed is likely located on sovereign submerged lands, and the hydrologic restoration due to removal of the dikes is on both sovereign submerged lands and privately owned lands. In this case, there is no feasible way to eliminate the use of the sovereign submerged lands, so the effect of the moratorium would be to delay the project until the moratorium expires.

The restoration of the site would involve removing part or all of the eastern dike to subject the site to the river's hydrologic influence, restoring the topography, and breaching the western dike to allow shunted tributaries (e.g. Turkey Creek) to flow unimpeded across the site. This will result in the site, which is currently pasture, being restored to a floodplain wetland with all of the functions of such a wetland, including water storage, water quality enhancement, and fish and wildlife habitat and food sources. Figure 2 shows the diked farm lands that are proposed to be restored.

The applicant has indicated that upon completion of the restoration work, they propose to convey the mitigation bank lands to the BOT. These lands are located within the 10-year floodplain of the St. Johns River, which the SJRWMD has considered a priority for acquisition and restoration. The project abuts upon the Seminole Ranch property owned by SJRWMD and management of these lands could be coordinated with management of the Seminole Ranch lands.

In addition to wildlife habitat benefits associated with the mitigation bank, the project will also restore public access to sovereign submerged lands that have been historically preempted for agricultural uses and will provide an additional 180 acres or more of lands for public use that are currently in private ownership. Donation of these lands to the BOT will save the taxpayers as much as $270,000 that it would cost to acquire these lands, plus the costs of removing the levees.

It is clear that the proposed activities will have significant benefits in terms of fish and wildlife habitat and public recreational values of the subject lands. Of the issues that were the basis for the moratorium, the question of compensation for use of Board of Trustees' lands and the question of whether to have a process such as a Request for Proposals to offer other members of the public the opportunity to apply to do these mitigation activities, appear to be most significant.

In this case, the applicant has offered to donate those lands which are not sovereign submerged lands to the BOT. This will result in 180 or more acres of lands within the 10-year floodplain of the St. Johns River being placed in public ownership. These lands will be encumbered with a conservation easement to the SJRWMD, as required by the terms of any mitigation bank permit to be issued, but this conservation easement will allow for the restoration and management activities consistent with the maximization of wildlife habitat benefits and passive public recreational uses of the property. Staff has not yet negotiated with the applicant regarding appropriate fees for the use of sovereign submerged lands. This issue will be brought back to the BOT at a later date for consideration along with any authorization to use sovereign submerged lands.

The configuration of the site does not lend itself to entities other than the applicant and the owner of the adjacent riparian lands to conduct the restoration activities. Access over land to the site is only available to the adjacent riparian land owner. Therefore, staff does not believe that it would be worthwhile in this case to request proposals from the public to conduct the proposed restoration activities.

Based on the above discussion, staff believes that it would not be in the public interest to include this proposed mitigation bank in the moratorium, because delaying the mitigation bank

Board of Trustees

Agenda - April 15, 1997 Page Seventeen

Item 11, cont.

application may result in the loss of natural resource values, the loss of lands that are to be donated to the state and the delay in restoration of public access to sovereign submerged lands.

Status of the application by Deseret Ranches of Florida for the East Point Reservoir Mitigation Bank. On October 4, 1996, the SJRWMD received a permit application to construct and operate a 300-acre mitigation bank which involves the operation of an agricultural retention and treatment reservoir to improve the quality of agricultural stormwater discharges to Lake Washington and for fish and wildlife habitat. The site is enclosed by a dike system which separates it from the influence of the St. Johns River floodplain. The site has been dewatered by pumping and has been used mostly for cattle pasture. The permit application is presently incomplete pending the applicant's response to the District's information request. The receiving water, Lake Washington, is a Class I surface water, and is used as the primary drinking water supply for the City of Melbourne and other areas in southern Brevard County. Figure 3 shows the location of the project.

An OHWL survey has not yet been done for this site, but correspondence from the Department of Environmental Protection's Bureau of Survey & Mapping indicates that most or all of the site may be sovereign submerged lands, based upon long-term lake level information.

The site is not proposed to be fully restored through dike removal, but rather, the site is intended to be used as a multi-purpose reservoir which includes the construction of islands and the maintenance of water levels sufficient to allow marsh communities to be maintained. The project is expected to provide water supply benefits for Deseret Ranches, water quality benefits for Lake Washington and the St. Johns River, and wildlife benefits due to the creation of a wetland ecosystem in areas currently used for pasture. However, those sovereign submerged lands that have been historically preempted for agricultural land uses at this site will continue to be inaccessible to the public for recreational and other uses. Therefore, this project is not a total restoration project, like the Ecobank North Dike project or the Duda diked lands. Since the bulk of the lands on the site are likely sovereign submerged lands, it would not be feasible to eliminate sovereign submerged lands from the project and still have a viable project.

Although the project will improve water quality and will provide habitat for fish and wildlife, this project is not a total restoration project, since those state lands which have already been preempted by the dike and fence will continue to have no public access and the system will continue to remain isolated from the floodplain wetlands by a dike.

Status of the application by Ecobank for the Lake Louisa & Green Swamp Mitigation Bank - Phase 2. On February 13, 1997, the SJRWMD received a mitigation bank permit application for Phase 2 of this project. The SJRWMD has previously issued a conceptual mitigation bank permit for this entire project and a Phase 1 permit for construction and operation. Phase 2 largely involves upland reforestation from existing citrus groves, but it also includes the preservation and enhancement of swamp and several lake and fringing wetland communities, as well. The application is not yet complete at this time. Figure 4 shows the location of the project.

An OHWL survey has not been done for this site. The SJRWMD has not received any information from the Department of Environmental Protection (DEP) regarding the extent of potential sovereign submerged lands for the project site. The areas which may possibly be considered sovereign submerged lands are two relatively small lakes, Live Oak Lake and Cypress Lake. The proposed activities within these lakes include preservation and the control of nuisance species, such as cattails. These activities are a small component of the overall mitigation bank project and could be removed from this phase of the mitigation bank project and delayed until

Board of Trustees

Agenda - April 15, 1997 Page Eighteen

Item 11, cont.

such time as the moratorium has expired and the BOT has approved a policy or rule on the use of Board of Trustees' lands for mitigation banking.

Status of the application by A. Duda & Sons for the St. Johns River Mitigation Bank. On December 19, 1996, the SJRWMD received a permit application for a mitigation bank conceptual approval involving 15,322 acres of existing agricultural land. The conceptual plan includes wetland and upland preservation, enhancement, and restoration. These activities range from the preservation of existing resources to the complete restoration of existing diked floodplain areas. The permit application is not yet complete at this time. Figure 4 shows the location of the project and Figure 5 shows the diked lands in the northern portion of the project that are currently used for agricultural purposes.

The applicant has met with staff from the Department of Environmental Protection's Bureau of Survey & Mapping in order to resolve the sovereign submerged lands issue; however, the SJRWMD has not received any information regarding the extent of those lands for the project site. Of the lands within the project area, if part or all of the diked agricultural lands are determined to be sovereign submerged lands, it would not be feasible to eliminate these lands from the bank and still conduct any of these restoration activities. Other sovereign lands on the project site could be excluded from the mitigation bank until such time as the moratorium expires.

The applicant initially indicated that the diked lands in the northern portion of the site were to be restored and the dikes either breached or removed. These plans are still unclear and the application is still not complete. This diked area is entirely within the 10-year floodplain of the St. Johns River. Acquisition and restoration of lands within the 10-year floodplain of the St. Johns River has been a priority of the SJRWMD in order to restore the natural floodplain functions including flood water storage, water quality enhancement and wildlife habitat. Should the dikes be breached, the project will also allow for public access to sovereign submerged lands that have been preempted for private agricultural uses.

As in the Ecobank/North Dike project described above, due to limited access and the mixture of public and private lands within this bank, it would not be practicable to do an Request For Proposal for this project. The restoration of the diked agricultural lands is expected to result in extremely significant environmental benefits and should restore public access to lands which have been previously preempted for private uses. Therefore, it is not in the public interest to include the diked lands in the moratorium, because delaying the mitigation bank application may result in the loss of natural resource values and the delay in restoration of public access to sovereign submerged lands.

Should the BOT approve the staff recommendation, staff will negotiate with the applicant over appropriate fees for the use of sovereign submerged lands for the purposes of mitigation banking. These terms will be developed in coordination with DEP staff and will require approval of the BOT.

Recommended action for each proposal:

The BOT is statutorily charged with the duty to manage and administer state lands and has discretion to approve or deny applications for any proposed activity on state lands. The laws of Florida provide that third parties have no right to conduct activities on state-owned lands. All of the mitigation bank projects described above will result in the restoration or enhancement of environmental values of state-owned lands. Specific recommendations on each proposal follow.

Board of Trustees

Agenda - April 15, 1997 Page Nineteen

Item 11, cont.

The following recommendations only address whether the moratorium approved by the BOT on February 25, 1997, should apply to the projects described above. Approval of the staff recommendation should in no way be considered to indicate conceptual or other approval for the specific mitigation banking projects.

Ecobank (North Dike at East Central Florida Mitigation Bank - North)

Staff recommends that this project be excluded from the moratorium.

Deseret Ranches of Florida (East Point Reservoir Mitigation Bank)

Staff recommends that this project not be excluded from the moratorium.

Ecobank (Lake Louisa & Green Swamp Mitigation Bank - Phase 2)

In the event that DEP staff or the BOT assert that lands within this project are sovereign submerged lands, staff recommends that this project not be excluded from the moratorium.

A. Duda & Sons (St. Johns River Mitigation Bank)

Staff recommends that only the diked lands in the northern portion of this project site be excluded from the moratorium, contingent upon the mitigation bank proposal including restoration of public access to these lands by breaching or removing the dike that prevents such public access.

(See Attachment 11, Pages 1-3)

RECOMMEND APPROVAL