AGENDA

Cabinet Affairs

AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

SEPTEMBER 25, 1997

Item 1 Minutes

Submittal of the minutes of the August 12, 1997 Cabinet meeting.

RECOMMEND ACCEPTANCE

Item 2 Florida Power Corporation Easement

REQUEST: Consideration of a request to issue a 50-year easement to Florida Power Corporation, containing 2.723 acres, more or less.

COUNTY: Orange

APPLICANT: Florida Power Corporation

LOCATION: A portion of Section 02, Township 22 South, Range 31 East

CONSIDERATION: Appraised easement value of $224,000 to be deposited in the Internal Improvement Trust Fund

STAFF REMARKS: Florida Power Corporation has requested an easement to construct and operate an unmanned electrical substation on state-owned land currently under lease to the Board of Regents as a part of the University of Central Florida. The substation will provide electric service to the university and surrounding area. The Board of Regents concurs with the request.

A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. A compliance agreement between DCA and the local government has been finalized. The proposed action is consistent with the adopted plan according to Orange County.

(See Attachment 2, Pages 1-28)

RECOMMEND APPROVAL

Item 3 Dr. Ricardo Pines Use Agreement Modification

REQUEST: Consideration of a request to modify Use Agreement No. U-0281 to Dr. Ricardo Pines for a parcel of land encompassing 1,415.08 acres, more or less.

COUNTY: Highlands

APPLICANT: Dr. Ricardo Pines

LOCATION: A portion of Sections 27, 28, 33 and 34, Township 35 South, Range 31 East

STAFF REMARKS: On May 28, 1997, the Board of Trustees approved a use agreement which would allow Dr. Ricardo Pines to graze cattle for one year on land being leased to the Florida Game and Fresh Water Fish Commission (FGFWFC) for a mottled duck study area. Board of Trustees

Agenda - September 25, 1997 Page Two

Item 3, cont.

In exchange, Dr. Pines would grant the Board of Trustees a permanent access easement across his property to the study area which currently has no legal access. Following Board of Trustees approval of the use agreement, but prior to execution, Dr. Pines requested the following modifications to the use agreement:

1. Under the existing agreement, the FGFWFC can terminate the agreement upon 45 days written notice. The proposed modifications will allow Dr. Pines to use the property for at least six months before the FGFWFC can first exercise its right to terminate the use agreement.

2. The proposed modifications prohibit the Board of Trustees from allowing third parties to graze cattle during the term of the use agreement.

3. The proposed modifications limit Dr. Pines' responsibility for clean-up resulting from use of the property to his use of the property, and acknowledge the normal wear and tear anticipated from cattle grazing.

4. The proposed modifications clarify the written notice requirements in the event of a violation.

5. The proposed modifications eliminate Dr. Pines' immediate responsibility for forest fires which occur in the vicinity of his operations. Under the terms and conditions of the existing agreement, Dr. Pines is presumed responsible unless he can clearly demonstrate otherwise.

6. The proposed modifications provide that Dr. Pines may not discriminate against individuals with respect to any activities "under his control" on the state-owned land or adjacent land used as an adjunct of the land covered by this agreement.

7. The proposed amendment eliminates the portion of the breach of covenants provision pertaining to failure to pay required fees (no fees are required).

Staff recommends approval of the proposed modifications because: (1) the agreement is short term; (2) the requested modifications are not substantive considering the short term nature of the agreement; and (3) the state will acquire legal access to land that currently has no such access. The FGFWFC concurs with the modifications.

A consideration of the status of any local government comprehensive plans was not made for this item. The proposed modifications do not affect the original use approved by the Board of Trustees on May 28, 1997, which was determined to be consistent with the Highlands County adopted plan.

(See Attachment 3, Pages 1-18)

RECOMMEND APPROVAL

Board of Trustees

Agenda - September 25, 1997 Page Three

Item 4 DMS/BOT/Young Women's Christain Association of Daytona Beach Exchange Agreement

REQUEST: Consideration of an exchange agreement under which the Board of Trustees would convey a 0.04-acre parcel of Board of Trustees' owned land to the Young Women's Christian Association of Daytona Beach, Inc. for a 0.03-acre parcel of land owned by the Young Women's Christian Association of Daytona Beach.

COUNTY: Volusia

APPLICANT: Department of Management Services on behalf of the Court of Appeal, Fifth District

LOCATION: Portions of Lots 04 and 05, Thompson's Subdivision, as per Map Book 2, Page 47, Public Records of Volusia County, Florida

CONSIDERATION: Parcel-for-parcel

APPRAISED BY

REVIEW Allen APPROVED EXCHANGE CLOSING

NO. PARCEL ACRES (12/01/94) VALUE VALUE DATE

BOT 0.04 $7,300 $7,300 $7,300 60 days after relocation

YWCA 0.03 $7,300 $7,300 $7,300 of utility lines from Parcel

715011 A to Parcel B but in no

event less than 60 days

after BOT approval

STAFF REMARKS: This land exchange was negotiated by the Department of Management Services (DMS) pursuant to an agreement for services between DMS and the Court of Appeal, Fifth District (Court).

On October 24, 1995, and December 10, 1996, the Board of Trustees approved three acquisitions for the expansion of the Court's facilities. The closings occurred in February, 1996, March, 1996, and February, 1997. One of the parcels is bisected by an alley, owned by the Young Women's Christian Association of Daytona Beach (YWCA), which provides the only access to other YWCA property. Pursuant to its agreement with the Court, DMS asked the YWCA if it was willing to donate or exchange its title interest in the alley to the Board of Trustees. The YWCA agreed to exchange the alley for a strip of land on the western edge of the Board of Trustees' property. It would allow for continued access and prevent the YWCA property from being landlocked.

The parcels to be exchanged are not equal in size. The Board of Trustees' parcel contains approximately 1,786.5 square feet and the YWCA parcel contains approximately 1,131.5 square feet. While the Board of Trustees' parcel is larger than the YWCA's parcel, the value contribution of the YWCA parcel is equal to the Board of Trustees' site.

On September 19, 1996, the Land Management Advisory Council recommended that the Board of Trustees approve this exchange.

All mortgages and liens on the parcel to be received by the Board of Trustees will be satisfied at the time of closing. In the event the commitment for title insurance reveals any other encumbrances which may affect the value or the proposed management of the parcel to be received by the Board of Trustees, staff will so advise the Board of Trustees prior to closing. Since the YWCA will not be reserving oil, gas, phosphate or other mineral interests in the parcel it is to convey, staff recommends that the Board of Trustees, pursuant to section 253.62, Board of Trustees

Agenda - September 25, 1997 Page Four

Item 4, cont.

F.S., not reserve oil, gas, phosphate or other mineral interests in the parcel it is to convey to the YWCA.

A certified survey and environmental site assessment of the parcel to be received by the Board of Trustees will be performed by DMS prior to closing.

The parcel to be received by the Board of Trustees will be managed by the Court of Appeal, Fifth District, as a part of the existing Court facilities.

This land exchange is consistent with section 187.201(18), F.S., the Public Facilities section of the State Comprehensive Plan.

(See Attachment 4, Pages 1-25)

RECOMMEND APPROVAL

Item 5 Shell Island Division of Recreation and Parks' Additions and Inholdings Project Option Agreements/Survey Waivers

REQUEST: Consideration of (1) ten option agreements to acquire 1.80 acres within the Shell Island Division of Recreation and Parks' Additions and Inholdings project from ten separate owners; and (2) a request for survey waivers.

COUNTY: Bay

LOCATION: Section 31, Township 04 South, Range 14 West

CONSIDERATION: $146,375

APPRAISED BY

REVIEW Presley APPROVED PURCHASE OPTION

NO. PARCEL ACRES (05/31/96) VALUE PRICE DATE

715001 Parish (E) .13 $13,000 $13,000 $13,000 180 days

715002 Manning (F) .13 $13,000 $13,000 $12,600 after BOT

715003 Quigley/Harrison (L) .13 $13,000 $13,000 $12,350 approval

715004 Franz, Trustee (R) .33 $32,000 $32,000 $30,400

715005 Petrey (JJ) .11 $ 2,500 $ 2,500 $ 2,375

715006 Bottoms (QQ) .27 $26,000 $26,000 $25,150

715007 Bonney (RR) .13 $13,000 $13,000 $12,350

715008 Smith/Robertson (VV) .13 $13,000 $13,000 $12,350

715009 Franz, Trustee (GGG) .30 $16,000 $16,000 $15,200

715010 Manning (KKK) .14 $11,000 $11,000 $10,600

1.80 $152,500 $146,375

STAFF REMARKS: The Shell Island project has been identified on the Division of Recreation and Parks' Additions and Inholdings List. These agreements were negotiated by the Division of State Lands on behalf of the Division of Recreation and Parks under the State Parks Additions and Inholdings Preservation 2000 program.

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

Board of Trustees

Agenda - September 25, 1997 Page Five

Item 5, cont.

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

the parcels are surrounded by State-owned land or surrounded by land the State intends to acquire;

the referenced parcels are located within a platted subdivision and the plat drawing is acceptable for computing acreage;
the parcels are in their natural unimproved condition; and
the boundary of the parcels do not adjoin fences or improvements other than those 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, certified surveys will be provided by the purchaser prior to closing. In the event full surveys are waived, a professional land surveyor will inspect the properties 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 properties.

Environmental site evaluations and, if necessary, environmental site assessments will be provided by purchaser prior to closing. The purchaser will reimburse the sellers' title insurance costs for parcels E, F, JJ, QQ, and KKK.

The properties will be managed by the Division of Recreation and Parks as an addition to the St. Andrews State Recreational Area.

These acquisitions are consistent with section 187.201 (10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 5, Pages 1- 96)

RECOMMEND APPROVAL

Item 6 Bowers Espy and Ann E. Thoke/Archie Carr Sea Turtle Refuge CARL Project Option Agreement

REQUEST: Consideration of an option agreement to acquire approximately 1.40 acres within the Archie Carr Sea Turtle Refuge CARL project from Bowers Espy and Ann E. Thoke.

COUNTY: Brevard

LOCATION: Section 08, Township 30 South, Range 39 East

CONSIDERATION: $365,000

APPRAISED BY

REVIEW Benson APPROVED PURCHASE OPTION

NO. PARCEL ACRES (07/19/96) VALUE PRICE DATE

715012 08-512 0.70 $185,000 $185,000 $182,500 180 days

08-513 0.70 $185,000 $185,000 $182,500 after BOT

1.40 $365,000 approval

Board of Trustees

Agenda - September 25, 1997 Page Six

Item 6, cont.

STAFF REMARKS: The Archie Carr Sea Turtle Refuge CARL project is ranked number 2 on the CARL Priority Project List approved by the Board of Trustees on February 11, 1997, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan.

The Archie Carr Sea Turtle Refuge project contains 948 acres, of which 576.71 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 369.89 acres or 39 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.

The certified survey, environmental site evaluation and, if necessary, environmental site assessment will be provided by the purchaser prior to closing. The purchaser will reimburse the seller's title insurance costs.

Although sea turtle nesting occurs from the southern tip of Texas to the southern coast of Virginia, a 20-mile stretch of beach in Brevard and Indian River Counties, Florida, is one of the most significant nesting areas for Loggerhead Sea Turtles in the world; the most significant nesting area for Green Sea Turtles in North America; and an occasional nesting area for the Leatherback Sea Turtle, one of the largest and rarest sea turtles. Stretches of quiet, undisturbed sandy beaches, with little or no artificial light, are essential to the reproductive success and survival of sea turtles. For thousands of years, sea turtles have returned each year to these beaches to lay their eggs and continue the species. The Archie Carr Sea Turtle Refuge project is designed to help protect the habitat and assure the continued survival of these endangered sea turtles.

The property will be managed by U.S. Fish and Wildlife Service as part of the Archie Carr National Wildlife Refuge.

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- 25)

RECOMMEND APPROVAL

Item 7 Monroe County Comprehensive Plan Land Authority/Florida Keys Ecosystem CARL Project Option Agreement

REQUEST: Consideration of an option agreement to acquire 49.8 acres within the Florida Keys Ecosystem CARL project from Monroe County Comprehensive Plan Land Authority.

COUNTY: Monroe

LOCATION: Section 30, Township 66 South, Range 29 East

CONSIDERATION: $131,785.76

Board of Trustees

Agenda - September 25, 1997 Page Seven

Item 7, cont.

APPRAISED BY

REVIEW Marr APPROVED PURCHASE OPTION

NO. PARCEL ACRES (01/01/96) VALUE PRICE DATE

715013 1905/1906 49.8 $150,000 $150,000 $131,785.76* 120 days

(Site A) after BOT

* $130,000 purchase price plus $1,785.76 closing costs approval

STAFF REMARKS: The Florida Keys Ecosystem CARL project is ranked number 4 on the CARL Priority Project List approved by the Board of Trustees on February 11, 1997, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. The project contains 6,964 acres, of which 1,061.08 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 5,853.12 acres or 84 percent of the project will remain to be acquired.

On March 12, 1996, the Board of Trustees exercised its authority under section 259.041(1), F.S., to waive the normal appraisal procedures and to utilize appraisals based on land use regulations in effect as of January 1, 1996, in Monroe County, Florida.

Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands and Monroe County Comprehensive Plan Land Authority (Authority), the Authority acquired 49.8 acres on April 13, 1997, from Robert D. Singleton, et al for $130,000. If this item is approved, the Board of Trustees will reimburse the Authority's purchase price of $130,000 and closing costs of $1,785.76. In no event will the purchase price exceed the approved value of the property.

A certified survey, environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser prior to closing and the purchaser will reimburse the seller's title insurance costs.

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

The property will be managed by the Florida Game and Freshwater Fish Commission for the conservation and preservation of its natural resources.

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 1-25)

RECOMMEND APPROVAL

Board of Trustees

Agenda - September 25, 1997 Page Eight

Item 8 Mercedes Roman as Trustee/Florida's First Magnitude Springs (Weeki Wachee) CARL Project Option Agreement

REQUEST: Consideration of an option agreement to acquire 0.344 acre within the Florida's First Magnitude Springs (Weeki Wachee) CARL project from Mercedes Roman as Trustee.

COUNTY: Hernando

LOCATION: Section 35, Township 22 South, Range 17 East

CONSIDERATION: $30,000

APPRAISED BY

REVIEW Dohring APPROVED PURCHASE OPTION

NO. PARCEL ACRES (05/18/95) VALUE PRICE DATE

715014 19 0.344 $ 30,000 $ 30,000 $ 30,000 180 days

after BOT

approval

STAFF REMARKS: The Florida's First Magnitude Springs (Weeki Wachee) CARL project is ranked number 13 on the CARL Priority Project List approved by the Board of Trustees on February 11, 1997, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. The Weeki Wachee portion of the project contains 1,266.65 acres, of which 631.62 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 634.68 acres or 50 percent of the project will remain to be acquired.

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

Large springs of clear, continuously flowing water are among Florida's most famous and important natural and recreational resources. The cavernous water-filled rocks of the Floridian Aquifer supply the largest spring. By preserving land around eight of the largest (first-magnitude) springs, this project will protect them--and the Floridian Aquifer--from the effects of commercial, residential, and agricultural runoff; clear cutting and mining; and unsupervised recreation. This project will ensure that Floridians and visitors from all over the world will be able to enjoy these springs for years to come.

The property will be managed by Florida Game and Fresh Water Commission, in conjunction with the Chassahowitzka Wildlife Management 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 8, Pages 1-24)

RECOMMEND APPROVAL

Board of Trustees

Agenda - September 25, 1997 Page Nine

Item 9 William Spinapont Purchase Agreement/Charles Doerr, Salma Doerr, David S. Smith, Vera Henson and Alice Murano Option Agreement/South Savannas CARL Project

REQUEST: Consideration of (1) a purchase agreement to acquire 3.47 acres within the South Savannas CARL project from William Spinapont; and (2) an option agreement to acquire five acres within the South Savannas CARL project from Charles Doerr, Salma Doerr, David S. Smith, Vera Henson, and Alice Murano.

COUNTY: St. Lucie

LOCATION: Section 09, Township 37 South, Range 41 East; and Section 14, Township 36 South, Range 40 East

CONSIDERATION: $68,875

APPRAISED BY

REVIEW (Gray) APPROVED PURCHASE CLOSING

NO. SELLER ACRES (02/08/95) VALUE PRICE DATE

715015 Spinapont 3.47 $22,500 $22,500 $21,375 180 days after

BOT approval

OPTION

DATE

715016 Doerr, et al 5.00 $50,000 $50,000 $47,500 120 days after

8.47 $72,500 $68,875 BOT approval

STAFF REMARKS: The South Savannas CARL project is ranked number 5 on the Substantially Complete Project List approved by the Board of Trustees on February 11, 1997, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. This project contains 6,046 acres, of which 4,693.8 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves these agreements 1,343.73 acres or 22 percent of the project will remain to be acquired.

Certified surveys, title insurance for the Spinapont parcel, environmental site evaluations and, if necessary, environmental site assessments will be provided by the purchaser prior to closing.

Around Fort Pierce a chain of marshes and lakes separating inland pine flatwoods from the coastal scrub on the high Atlantic Ridge has survived the rapid development of St. Lucie and Martin counties like a visitor from another time. The South Savannas project will conserve these coastal freshwater marshes and the nearby flatwoods and scrub so that the wildlife and plants of this area, some extremely rare, will continue to survive and the public can learn about and enjoy this scenic remnant of the original southeast Florida.

These properties will be managed by the Division of Recreation and Parks as part of the Savannas State Reserve.

Board of Trustees

Agenda - September 25, 1997 Page Ten

Item 9, cont.

These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 9, Pages 1-20)

RECOMMEND APPROVAL

Item 10 BOT/BOR/FSU Purchase Agreements

REQUEST: Consideration of three purchase agreements to acquire a total of 0.57 acre by the Board of Trustees for the benefit of the Florida Board of Regents and Florida State University from three separate owners.

COUNTY: Leon

APPLICANT: Florida State University

LOCATION: Section 35, Township 01 North, Range 01 West

CONSIDERATION: $334,200

APPRAISED BY

REVIEW Carlton APPROVED PURCHASE CLOSING

NO. PARCEL ACRES (01/23/96) VALUE PRICE DATE

715017 FSU# 79 0.14 $ 52,500 $ 52,500 $ 52,500 200 days

after BOT

(11/18/96) approval

715018 FSU# 33 0.29 $111,700 $111,700 $111,700

715019 FSU# 205 0.14 $170,000 $170,000 $170,000

TOTALS 0.57 $334,200 $334,200

STAFF REMARKS: These acquisitions were negotiated by Florida State University (FSU). Funds for these parcels were appropriated by the Florida Legislature and are still available.

Parcel 33 and parcel 79 are vacant, unimproved sites. FSU was not successful in its attempts to acquire parcel 33 from the previous owner, F. Joseph Nahoom and the F. Joseph Nahoom Family Trust (Nahoom). The Seminole Boosters, Inc. (Boosters) acquired parcel 33 from Nahoom on December 22, 1995 for $150,000. The Boosters are absorbing the $38,300 difference between the two purchase prices.

Parcel 205 is improved with a one and one-half story frame office residence building containing 2,076 square feet. The building was built in 1925 and completely renovated in 1990. The seller currently has the property leased but the lease will be terminated prior to or at closing. The structure will be removed as soon as FSU obtains all of the necessary permits, after which the area will be used for parking. Ultimately, the area is slated for new construction with FSU's future expansion

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

Board of Trustees

Agenda - September 25, 1997 Page Eleven

Item 10, cont.

Certified surveys will be provided by FSU prior to closing. An environmental site assessment will be provided by each seller prior to closing, with FSU reimbursing the sellers' cost of the environmental site assessments and title insurance.

These parcels will be managed by FSU as a part of the existing campus through a lease to the Florida Board of Regents.

These acquisitions are consistent with section 187.201(01), F.S., the Education section of the State Comprehensive Plan.

(See Attachment 10, Pages 1-61)

RECOMMEND APPROVAL

Item 11 New Smyrna Yacht Club, Inc., Recommended Consolidated Intent

REQUEST: Consideration of an application for modification of a five�year sovereignty submerged land lease to increase the preempted area from 59,074.76 square feet to 107,288.9 square feet, more or less, for a proposed expansion of an existing docking facility for a private yacht club.

COUNTY: Volusia

Lease No. 640722134

Application No. 642993114

APPLICANT: New Smyrna Yacht Club, Inc.

LOCATION: Section 20, Township 17 South, Range 34 East, in the Indian River, Class III Waters, within the local jurisdiction of the city of New Smyrna Beach, Volusia County

Aquatic Preserve: No

Manatee Area idle/slow speed/caution zone: Yes

Outstanding Florida Water: No

CONSIDERATION: $14,502.10 representing, (1) $13,139.60 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; (2) $1,362.50 as administrative fine for the unauthorized construction of a four-slip dock within lease site #2. (The applicant has paid the $1,362.50 fine). Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fee may be adjusted based on seven percent of the rental rate, pursuant to section 18-21.011, F.A.C.

STAFF REMARKS: The Board of Trustees authorized a rule amendment on September 14, 1995, to "link" the two processes of regulatory and proprietary reviews and authorizations. The rule became effective October 12, 1995. As a result of this linkage, the recommended Department of Environmental Protection (DEP) regulatory permit decision and the recommendation to the Board of Trustees on the proprietary authorization are contained in one document, the attached "Consolidated Notice of Intent to Issue". The consolidated intent contains a recommendation for issuance of a permit under Part IV of chapter 373, F.S., and a recommendation for granting authorization to use sovereignty submerged lands under chapter(s) 253 and 258, F.S., for the activity described therein. This recommendation is provided to the Board of Trustees

Agenda - September 25, 1997 Page Twelve

Item 11, cont.

Board of Trustees, pursuant to section 373.472(2), F.S. A description of the requested activity is provided in Section I, "Description of the Proposed Activity". The specific basis for recommending approval of the authorization to use sovereignty submerged lands is contained in Section III "Background /Basis for Issuance."

Approval by the Board of Trustees is requested only for those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands and the activity also qualifies for an environmental resource permit and no challenges are successful, the "Consolidated Notice of Intent to Issue" will be issued and will contain general and specific conditions. In the event the Board of Trustees denies the use of sovereignty submerged lands, and even though the activity otherwise qualifies for an environmental resource permit, DEP will issue a "Consolidated Notice of Denial" for both the environmental resource permit and the authorization to use sovereignty submerged lands.

The lessee is proposing to expand and modify the existing lease at New Smyrna Yacht Club docking facility located on Yacht Club Island. The existing lease is divided into two sites on the island. Lease site #1 is located on the east side and lease site #2 is located on the west side of the island. The lessee is proposing to expand/modify lease site #1 by adding 18 slips to the 10 slips existing, thereby creating a total of 28 slips. The proposed expansion will consist of a six foot wide access walkway (with eight foot wide dock boxes) on either side of the existing docking facility, with a total of seven 4 foot wide finger piers, two 6 foot wide finger piers and 32 mooring pilings to create the additional 18 slips for private recreational boating activities.

The expansion to lease site #1, to be completed in two phases, will provide an additional 16 permanent mooring slips for deeper draft vessels and create two service slips. One service dock slip will be utilized as a sewage pumpout station for vessels moored at the docking facility and the other for temporary mooring of vessels by visitors to the yacht club. In addition to the expansion to lease site #1, the lessee is requesting a modification to the boundary of lease site #2 to ensure that vessels moored at the end of an existing floating dock will not extend beyond the boundary of the lease area. The existing sovereignty submerged land lease (lease sites #1 & #2), approved by the Board of Trustees on May 7, 1985, authorized the preemption of 58,736.82 square feet (survey corrected to 59,074.76 square feet) of sovereignty submerged lands and the creation of a total of 57 boat slips at the private yacht club. The proposed expansion will increase lease site #1 to contain a total of 63,953.5 square feet and lease site #2 will contain 43,335.4 square feet, for a new total of 107,288.9 square feet.

A compliance inspection on May 15, 1997 revealed that lease site #2 was not in compliance with the original lease authorized by the Board of Trustees. An unauthorized dock 57.3 feet long by 4 feet wide with three 7 foot long by 2 foot wide finger piers and a 14 foot long by 2 to 4 foot wide terminal end was constructed within the boundary of the existing lease. The lessee stated the unauthorized dock was completed approximately May 1, 1997. The constructed dock added an additional four slips to the exising 47 slips at lease site #2. The proposed expansion to the lease areas and the addition of the docks at lease sites #1 and #2, will increase the existing 57 boat slips to an over all total of 79 boat slips at the yacht club facility.

The Board of Trustees adopted an administrative fine policy on August 14, 1990. Based on that policy, the lessee was notified that an administrative fine would be assessed for the unauthorized construction of the dock. The fee was assessed and the lessee has paid the administrative fine for the unauthorized construction of the four-slip, 57.3 foot long dock at lease site #2. Staff calculated the administrative fine, pursuant to Board of Trustees' policy, at the rate of $0.50 per square foot. A multiplier of one was applied since staff is recommending approval of the Board of Trustees

Agenda - September 25, 1997 Page Thirteen

Item 11, cont.

previously unauthorized activity ($272.50). A multiplier of four was applied because the existing facility was under lease which constituted written notice ($1,090). The total administrative fine was $1,362.50. The lessee amended the environmental resource permit application to include the constructed dock. The sovereignty submerged land lease survey for lease site #2 was also modified to include the constructed dock. The constructed dock and other proposed activities qualify for an environmental resource permit.

The existing wetland resource permit and the draft DEP environmental resource permit prohibit liveaboards and fueling facilities. The lessee will install and maintain a sewage pumpout facility, pursuant to DEP Permit Number 642993114. The recommendations of the Division of Marine Resources regarding protection of manatees have been addressed in the environmental resource permit. The project was noticed and no objections were received.

A local government comprehensive plan has been adopted for this area, pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. In accordance with the Compliance Agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. The proposed action is consistent with the adopted plan as amended according to a letter received from the city of New Smyrna Beach.

(See Attachment 11, Pages 28 )

RECOMMEND APPROVAL SUBJECT TO THE SPECIAL LEASE CONDITION AND PAYMENT OF $13,139.60 AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

SEPTEMBER 25, 1997

Item 1 Minutes

Submittal of the minutes of the May 28, 1997 Cabinet meeting.

Item 2 Ecobank/North Dike/South Dike at East Central Florida Mitigation Bank Status Report

REQUEST: (1) Consideration of the status of the North Dike at East Central Florida Mitigation Bank, and the South Dike at East Central Florida Mitigation Bank, on sovereign submerged lands; and (2) the exclusion of the North Dike at East Central Florida Mitigation Bank and South Dike at East Central Florida Mitigation Bank from the moratorium concerning the use of Board of Trustees' lands for mitigation banking approved by the Board of Trustees on February 25, 1997.

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

Ecobank (South Dike at East Central Florida Mitigation Bank)

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

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

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

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

Along the St. Johns River near Puzzle Lake

Aquatic Preserve: No; OFW: No

Ecobank (South Dike at East Central Florida Mitigation Bank)

Sections 27 and 34 Township 21 South, Range 33 East

Along the St. Johns River near Puzzle Lake

Aquatic Preserve: No; OFW: No

STAFF REMARKS: On February 25, 1997, the Board of Trustees established a moratorium on the use of sovereign submerged lands for mitigation banking purposes. At that meeting, the BOARD OF TRUSTEES was told that there were only two mitigation banking projects pending that involved the use of sovereign submerged lands. At a subsequent meeting the BOARD OF TRUSTEES excluded the two existing projects that it knew about from the moratorium. However, in addition to those two projects, there were two applications for mitigation bank projects pending at the St. Johns River Water Management District (SJRWMD) that may involve sovereign submerged lands. In addition, since the implementation of the moratorium, SJRWMD has received a new application for a mitigation bank that likely involves sovereign submerged lands. This agenda item describes the one mitigation bank application that was pending with SJRWMD, at the time that the BOARD OF TRUSTEES established the moratorium, and the new application and makes recommendations as to whether to exclude these projects from the moratorium.

Project description and status of the two 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 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. Figure 1 shows the location of the project site. Dikes were constructed on the site in the early 1970's and the Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Two

Item 2, cont.

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. Figure 2 is an aerial photo of the project site, showing the diked farmlands and the adjacent St.

Johns River. The permit application is now complete and was approved by the SJRWMD Governing Board at their meeting on May 13, 1997.

At its meeting of August 13, 1997, the SJRWMD Governing Board reconsidered and amended the action taken at the May 13, 1997 meeting. This project has been approved to receive 338 mitigation credits. Of these, 203 credits are for restoration of lands which may be considered sovereign and all but 12 of the credits are largely attributable to the removal of the dike on sovereign land which allows for reflooding of both the sovereign lands and uplands. In accordance with section 373.427, F.S., this action will not be final until such time as the Board of Trustees takes action on the authorization to use state lands.

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 and Mapping indicates that the site may include sovereign submerged lands. This correspondence sets forth a safe upland line which indicates that approximately half of the subject project is not sovereign lands, while the other half of the property may involve sovereign lands. Therefore, it is likely that the hydrologic restoration due to removal of the dikes involves 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. 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.

There are significant unresolved issues associated with this application that only the Board of Trustees can address. Originally the applicant proposed to drop their claim to lands that are considered sovereign and to donate upland areas within the bank to the state as compensation for the use of sovereign lands. SJRWMD staff determined that there was very little monetary value associated with this offer of compensation and suggested that it would be more appropriate to follow the example of the Little Pine Island Mitigation Bank, where the Board of Trustees required compensation at a rate of seven percent of gross revenues from the sale of mitigation credits. Also SJRWMD staff suggested that the applicant relinquish any claims it may have to the lands to the east of the dike, including the bottom of the St. Johns River, which are considered to be sovereign. The applicant objected to these proposed compensation suggestions. The SJRWMD Governing Board was not comfortable with these staff suggestions, due to the fact that the Board of Trustees has not yet established a policy regarding compensation for the use of sovereign lands. Therefore, the SJRWMD recommendation to the Board of Trustees to authorize the use of sovereign submerged lands is silent on the question of compensation, leaving it up to the Board of Trustees to decide what compensation will be required.

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Three

Item 2, cont.

This application was pending at the time that the moratorium was approved by the Board of Trustees. Although there are some policy issues that the Board of Trustees still needs to address on this application, as described above, 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 application may result in the loss of natural resource values.

Status of the application by Ecobank for the South Dike at East Central Florida Mitigation Bank. In July, 1997, the SJRWMD received a permit application to construct and operate a 442-acre mitigation bank which involves the restoration of St. Johns River floodplain marsh from the existing agriculturally-altered land. Figure 1 shows the location of the project site. 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. Figure 2 is an aerial photo of the project site, showing the diked farmlands and the adjacent St. Johns River. The permit application is now complete and was approved by the SJRWMD Governing Board at their meeting on August 13, 1997. This project has been approved to receive 431.1 mitigation credits. Of these, 243.2 credits are for restoration of lands which may be considered sovereign and all but 25 of the credits are largely attributable to the removal of the eastern dike (which is on sovereign land) and reflooding of both the sovereign lands and uplands. However, the SJRWMD Governing Board's approval of the mitigation bank permit was conditioned upon the Board of Trustees granting an exception to the moratorium and approving the use of the sovereign submerged lands. In accordance with section 373.427, F.S., this action will not be final until such time as the Board of Trustees takes action on the authorization to use state lands.

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 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. 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.

St. Johns River Water Management District

Agenda - September 25, 1997 Page Four

Item 2, cont.

appropriate to follow the example of the Little Pine Island Mitigation Bank, where the Board of Trustees required compensation at a rate of seven percent of gross revenues from the sale of

mitigation credits. Also SJRWMD staff suggested that the applicant relinquish any claims it may have to the lands to the east of the dike, including the bottom of the St. Johns River, which are considered to be sovereign. The applicant objected to these proposed compensation suggestions. The SJRWMD Governing Board was not comfortable with these staff suggestions, due to the fact that the Board of Trustees has not yet established a policy regarding compensation for the use of sovereign lands. Therefore, the SJRWMD recommendation to the Board of Trustees to authorize the use of sovereign submerged lands is silent on the question of compensation, leaving it up to the Board of Trustees to decide what compensation will be required.

Although this application was not pending at the time that the Board of Trustees established the moratorium and there are unresolved issues as described above, 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 application may result in the loss of natural resource values.

(See Attachment 2, Page 1)

Recommended action for each proposal:

The Board of Trustees 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 are for-profit ventures that will result in the restoration or enhancement of environmental values of state-owned lands.

The following recommendations only address whether the moratorium approved by the Board of Trustees 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. Specific recommendations on each proposal follow.

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

Staff recommends that this project be excluded from the moratorium.

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

Staff recommends that this project be excluded from the moratorium.

The Department of Environmental Protection (DEP) does not concur with the recommended action by the SJRWMD's Board.

DEP staff met with representatives of Ecobank on August 5, 1997, to discuss the proposed use of sovereign submerged lands at the project site. The applicant has had free use of the submerged lands since completion of the dikes which separated them from the St. Johns River floodplain in 1972. At that meeting, the DEP staff indicated to the applicant in order to use this land for profit under a mitigation bank one of two things must occur: (1) the land below the safe upland line must be deeded in a quitclaim deed to the Board of Trustees and a fee paid for its use; or (2) the applicant could move the boundary of the mitigation bank uphill to the safe Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Five

Item 2, cont.

upland line, thereby excising potential Board of Trustees lands and, then, request permission from the Board of Trustees to remove the dike on submerged lands.

DEP staff believes that the items discussed with and presented to the applicant as potentially workable solutions to this problem must be presented to the Board of Trustees for consideration. Because they were not, DEP staff recommends denial of the request to exclude these projects from the moratorium.

Item 3 Ecobank/North Dike at East Central Florida Mitigation Bank Use Agreement/Recommended Consolidated Intent

REQUEST: Consideration and approval of a use agreement authorizing the use of sovereign submerged lands for the North Dike at East Central Florida Mitigation Bank.

COUNTY: Seminole County, Application No. 4-117-1450-ERP

APPLICANT: Ecobank

LOCATION: Sections 21, 27 and 28, Township 21 South, Range 33 East

Along the St. Johns River near Puzzle Lake

Aquatic Preserve: No; OFW: No

GENERAL PROJECT DESCRIPTION:

Ecobank seeks authorization to use a portion of sovereign submerged lands for the purposes of constructing and operating a mitigation bank. In conjunction with an Environmental Resource Permit, the authorization to use sovereign submerged lands will allow Ecobank to construct and operate a mitigation bank that includes the removal of a dike and pump system in order to accommodate floodplain restoration.

STAFF REMARKS:

Background

In accordance with section 253.002, F.S., and the rules of the Board of Trustees, the District is serving as the staff to the Board of Trustees for this application to use sovereign submerged lands for the purposes of constructing and operating a mitigation bank. Under the delegation from the Board of Trustees to the District, all applications for mitigation banks on sovereign submerged lands must be presented to the Board of Trustees for its approval.

The applicant is seeking approval for the establishment and operation of a 364.41-acre mitigation bank. This project involves the removal and abandonment of the existing agricultural dewatering/dike system. The Department of Environmental Protection (DEP) has established a safe upland line on this parcel based upon long term stage data for the St. Johns River. The St. Johns River is located immediately to the east of this project site. The applicant has not conducted an ordinary high water line survey on the property. The applicant contends that there are valid federal patent deeds and railroad deeds that conveyed the mitigation bank property, as well as the St. Johns River marshes located to the east of the diked area, into private ownership. Rather than formally contest the extent of sovereign lands on the mitigation bank site, the applicant has decided instead to request authorization from the Board of Trustees to use the sovereign submerged lands for the mitigation bank.

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Six

Item 3, cont.

Project Site Description

The proposed mitigation bank is located along the western bank of the St. Johns River in southeastern Seminole County, near Puzzle Lake. The site is completely enclosed by a substantial dike system which was completed around 1972. The dikes are effective, maintained, and have been constructed to an elevation varying between 12 and 13 feet NGVD, which protects the site from the St. Johns River 100-year flood stage. The average width of the dikes from toe of slope to toe of slope is 41 feet. The topography in the interior portion of the site slopes from west to east with the elevations ranging from approximately 7 to 9 feet in the west and 4 to 5 feet in the east. Beds and furrows have been constructed to facilitate the drainage eastward to a pump which dewaters seepage water and rainwater from the site during the wet season. In the dry season, a flapgate culvert is opened and drainage is via gravity flow only.

In addition to excluding the river flood stages, the dike system has served to divert the upslope runoff from west of the site, especially in a small tributary named Turkey Creek which historically flowed across the site. Turkey Creek now is diverted around the North Dike project site by the existing borrow ditch located adjacent to the west side of the western dike. The drained, non-flowing, remnant channel of Turkey Creek remains within the interior of the dike system.

The vegetative communities consist primarily of improved pasture (308.27 acres) which is dominated by pasture grasses (primarily Bahia), and lesser amounts of coinleaf, dog fennel, sand cordgrass, camphorweed, fox-tail grass, and rushes. There are also several small cabbage palm hammocks (totaling 10 acres) located on the higher elevations in the western portion of the site. These are dominated by cabbage palms and contain lesser amounts of red cedar, dog fennel, and frostweed. The existing dikes and borrow canals/ditches within the 346-acre diked area (which is bounded by the outer toe of the dike slopes) total 27.73 acres. There are also 18.41 acres of borrow areas lying eastward of the outer toe of slope of the eastern dike.

Proposed Restoration Activities

1. Exclude cattle which are currently grazing on the property. Record a special warranty deed in favor of the Board of Trustees for the areas within the project located waterward of the safe upland line. Record a conservation easement to the DEP and SJRWMD over the areas within the project located landward of the safe upland line.

2. Excavate the entire eastern dike (7.15 acres) and fill the adjacent borrow canals/ditches (6.34 -acre interior and 18.41-acre exterior) to match the surrounding marsh grade. Excavate the interior maintenance road and fill the adjacent ditches (totaling 11.9 acres) to match the surrounding grade. These activities will result in 43.80 acres of regraded marsh and 285.96 acres of hydrologically-restored marsh.

3. Excavate a 100-foot-wide breach in the western dike (totaling 0.1 acre of regraded channel) and install two earthen plugs in the borrow canal to restore the diverted Turkey Creek flows back into the remnant on-site channel.

4. Implement an aggressive exotic and nuisance species control plan as the vegetation recovers. Replant with appropriate herbaceous species if natural recruitment is ineffective or inadequate.

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Seven

Item 3, cont.

5. Implement perpetual management and maintenance including exotic and nuisance species control and ecological burning.

Staff Analysis

Pursuant to rule 18-21.004, F.A.C., any activity on sovereign submerged lands must be not contrary to the public interest. The activities proposed by the applicant will restore a natural ecosystem in an area that has been altered for agricultural land uses. This will result in significant environmental benefits in the region. In addition, the restoration will restore floodplain water storage functions and enhance water quality in the St. Johns River. However, breaching of the dikes and conveying the special warranty deed will not necessarily restore public access to these lands, because the applicant maintains their claim of ownership of the river and marsh areas to the east of the site, which have been used for cattle grazing by the riparian land owners, and has withdrawn their offer to drop this claim.

Although the applicant could dispute the state's ownership of the lands within the mitigation bank, they have offered to relinquish any claim to these lands if they can secure authorization to construct the mitigation bank. The applicant will continue to dispute the state's claim to the lands to the east of the project site, including the bottom of the St. Johns River and its contiguous marshes. Mitigation banking provides an incentive for the private sector to restore lands which have been historically degraded by man's activities. Staff believes that this project is a good site for a mitigation bank. Staff believes that it would be in the public interest for the Board of Trustees to authorize this project in order to achieve the significant environmental and water resources benefits described above.

The applicant and staff have not agreed to a compensation package for the use of sovereign submerged lands for this profit making venture. Staff recognizes that the Board of Trustees have not yet established a policy regarding the location of mitigation banks on state-owned lands and the amount of compensation to be charged for operating a mitigation bank on sovereign submerged lands. Staff is aware that the only previous final Board of Trustees' authorization of a private for-profit mitigation bank by a private entity on sovereign submerged lands was the Little Pine Island Mitigation Bank located in Lee County, Florida, where the Board of Trustees required seven percent of the gross revenues from the bank as compensation for the use of sovereign lands. Staff feels that the Board of Trustees is the best entity to establish the amount and form of compensation to be charged for the location of this for-profit mitigation bank on sovereign submerged lands.

(See Attachment 3, Pages 1-12)

RECOMMENDATION:

The authorization to use sovereign submerged lands in the case of the Little Pine Island Mitigation Bank was memorialized in a use agreement. Based upon that example, staff recommends that the Board of Trustees approve a use agreement with Ecosystems Land Mitigation Bank II Corporation to implement a mitigation bank on sovereign submerged lands, at an amount and form of compensation the Board of Trustees determines appropriate, with terms and conditions as otherwise described in Appendix A. The use agreement would cover all lands within the mitigation bank site lying waterward of the safe upland line as set forth in the letter from Rod Maddox, DEP, attached hereto as Exhibit 2.

Other conditions:

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Eight

Item 3, cont.

1. Ecosystems Land Mitigation Bank II Corporation must have a conservation easement recorded covering all portions of the property located landward of the safe upland line as set

forth in the Rod Maddox letter attached as Exhibit 2.

2. Prior to undertaking any construction or selling any mitigation credits, Ecosystems Land Mitigation Bank II Corporation must have a special warranty deed executed and recorded conveying to the Board of Trustees all lands within the project area located waterward of the safe upland line as set forth in the Rod Maddox letter attached hereto as Exhibit 2. This special warranty deed must warrant fee simple ownership of the subject lands, free from any liens or encumbrances, except claims of the State of Florida to sovereign submerged lands.

Item 4 Ecobank/South Dike at East Central Florida Mitigation Bank Use Agreement/ Recommended Consolidated Intent

REQUEST: Consideration and approval of a use agreement authorizing the use of sovereign submerged lands for the South Dike at East Central Florida Mitigation Bank.

COUNTY: Seminole County, Application No. 4-117-1450AM-ERP

APPLICANT: Ecobank

LOCATION: Sections 27 and 34, Township 21 South, Range 33 East

Along the St. Johns River near Puzzle Lake

Aquatic Preserve: No; OFW: No

GENERAL PROJECT DESCRIPTION:

STAFF REMARKS:

Background

In accordance with section 253.002, F.S., and the rules of the Board of Trustees, the District is serving as the staff to the Board of Trustees for this application to use sovereign submerged lands for the purposes of constructing and operating a mitigation bank. Under the delegation from the Board of Trustees' to the District, all applications for mitigation banks on sovereign submerged lands must be presented to the Board of Trustees for their approval.

The applicant is seeking approval for the establishment and operation of a 442.35-acre mitigation bank. This project involves the removal and abandonment of the existing agricultural dewatering/dike system. The Department of Environmental Protection (DEP) has established a safe upland line on this parcel based upon long term stage data for the St. Johns River. The St. Johns River is located immediately to the east of this project site. The applicant has not conducted an ordinary high water line survey on the property. The applicant contends that there are valid federal patent deeds and railroad deeds that conveyed the mitigation bank property, as well as a portion of the St. Johns River marshes which are to the

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Nine

Item 4, cont.

east of the diked lands, into private ownership. However, rather than formally contest the extent of sovereign lands, the applicant has decided instead to request authorization from the Board of Trustees to use the sovereign submerged lands for the mitigation bank.

Project Site Description

The proposed mitigation bank is located along the western bank of the St. Johns River in southeastern Seminole County, near Puzzle Lake. The site is completely enclosed by a substantial dike system which was completed around 1972. The dikes are effective, maintained, and have been constructed to an elevation of about 10 feet NGVD. The average width of the dikes from toe of slope to toe of slope is 41 feet. The topography in the interior portion of the site slopes from west to east with the elevations ranging from approximately 7 to 9 feet in the west and 4 to 5 feet in the east. A network of drainage ditches have been constructed to facilitate the drainage eastward to a pump which dewaters seepage water and rainwater from the site during the wet season. In the dry season, a flapgate culvert is opened and drainage is via gravity flow only.

In addition to excluding the river flood stages, the dike system has served to divert the upslope runoff from west of the site by blocking Buscombe Creek and two small, unnamed streams which historically flowed across the site. These three streams are now diverted around the South Dike project site by the existing borrow ditch located exterior to the dike.

The vegetative communities consist primarily of improved pasture (373.38 acres) which is dominated by pasture grasses, dog fennel, sand cordgrass, camphorweed, fox-tail grass, and rushes. There is a 3.23-acre remnant of a mixed forested wetland dominated by cypress and swamp tupelo. The existing dikes, canals/ditches, and elevated roads within the 430-acre diked area (which is bounded by the outer toe of the dike slopes) total 54.39 acres. There are also 11.95 acres of borrow areas lying eastward of the outer toe of slope of the eastern dike.

Proposed Restoration Activities

1. Exclude cattle which are currently grazing on the property. Record a special warranty deed in favor of the Board of Trustees for the areas within the project waterward of the safe upland line. Record a conservation easement to the DEP and SJRWMD over the areas within the project landward of the safe upland line.

2. Excavate the entire eastern dike (5.55 acres) and fill the adjacent borrow canals/ditches (6.18-acre interior and 11.95- acre exterior) to match the surrounding marsh grade. Excavate the interior maintenance road and fill the adjacent ditches (totaling 24.03 acres) to match the surrounding grade. These activities will result in 47.71 acres of regraded marsh, 302.38 acres of hydrologically-restored marsh, and 65 acres of hydrologically-restored mixed forested wetlands.

3. Excavate three 100-foot-wide breaches in the western and southern dikes and install two earthen plugs in each of the adjacent exterior ditches to restore the diverted stream flows back across the South Dike project area.

4. Implement an aggressive exotic and nuisance species control plan as the vegetation recovers. Replant with appropriate herbaceous species if natural recruitment is ineffective or inadequate.

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Ten

Item 4, cont.

5. Implement perpetual management and maintenance including exotic and nuisance species control and ecological burning.

Staff Analysis

Mitigation banking provides an incentive for the private sector to restore lands which have been historically degraded by man's activities. Staff believes that it would be in the public interest for the Board of Trustees to authorize this project in order to achieve the significant environmental and water resources benefits described above.

The applicant and staff have not agreed to a compensation package for the use of sovereign submerged lands for this profit-making venture. Staff recognizes that the Board of Trustees have not yet established a policy regarding the location of mitigation banks on state owned lands and the amount of compensation to be charged for operating a for-profit mitigation bank on sovereign submerged lands. Staff is aware that the only previous final Board of Trustees' authorization of a private for-profit mitigation bank on sovereign submerged lands was the Little Pine Island Mitigation Bank located in Lee County, Florida, where the Board of Trustees required seven percent of the gross revenues from the bank as compensation for the use of sovereign lands. Staff feels that the Board of Trustees is the best entity to establish the amount and form of compensation to be charged for the location of this for-profit mitigation bank on sovereign submerged lands.

(See Attachment 4, Pages 1-11)

RECOMMENDATION:

The authorization to use sovereign submerged lands in the case of the Little Pine Island Mitigation Bank was memorialized in a use agreement. Based upon that example, staff recommends that the Board of Trustees approve a use agreement with Ecosystems Land Mitigation Bank II Corporation to implement a mitigation bank on sovereign submerged lands, at an amount and form of compensation the Board of Trustees determines appropriate, with terms and conditions as otherwise described in Appendix A. The use agreement would cover all lands within the mitigation bank lying waterward of the safe upland line as set forth in the letter from Rod Maddox, DEP, attached hereto as Exhibit 2.

Board of Trustees

St. Johns River Water Management District

Agenda - September 25, 1997 Page Eleven

Item 4, cont.

Other Conditions:

1. Ecosystems Land Mitigation Bank II Corporation must have a conservation easement recorded covering all portions of the property located landward of the safe upland line as set forth in the Rod Maddox letter attached as Exhibit 2.

2. Prior to undertaking any construction or selling any mitigation credits, Ecosystems Land Mitigation Bank II Corporation must have a special warranty deed executed and recorded conveying to the Board of Trustees all lands within the project area located waterward of the safe upland line as set forth in the Rod Maddox letter attached hereto as Exhibit 2. This general warranty deed must warrant fee simple ownership of the subject lands, free of any liens or encumbrances, except claims of the State of Florida to sovereign submerged lands.