AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

FEBRUARY 9, 1999

Item 1 1999 CARL Annual Report/1999 CARL Priority List

REQUEST: Consideration of (1) the 1999 Conservation and Recreation Lands Annual Report of the Land Acquisition and Management Advisory Council; and (2) the 1999 CARL Annual Priority List.

LOCATION: Statewide

APPLICANT: Division of State Lands on behalf of the Land Acquisition and Management Advisory Council

STAFF REMARKS: Pursuant to section 259.035(2)(a), F.S., the Land Acquisition and Management Advisory Council (LAMAC) adopted the 1999 Conservation and Recreation Lands (CARL) Priority List of acquisition projects on December 3, 1998. The 1999 CARL Priority List consists of 97 projects ranked by the LAMAC in six groups: 32 Priority projects; 31 Bargain/Shared projects; 8 Substantially Complete projects; 8 Mega-Multiparcel projects; 9 Less-Than-Fee projects; and 9 Negotiation Impasse projects. The Negotiation Impasse category is a new group of CARL projects approved by LAMAC on October 15, 1998. Projects may be moved to this group when acquisition efforts for essential parcels or critical portions thereof, have been exhausted. The new group clearly identifies those projects which have unwilling sellers at the price the state is willing to pay, but also contain such significant resources that LAMAC retains the project on the list hoping that the owner's inclination or circumstances will change. Each fiscal year, a portion of CARL program funding will be reserved for the Negotiation Impasse group. If not spent by the end of the third quarter of each year, funding for the Negotiation Impasse group would be redistributed to the other groups. Projects on the 1999 CARL Priority List, with a few exceptions as noted below, are ranked in the same priority order as the 1998 CARL Priority List to comply with the legislative intent of section 259.101(4)(f), F.S. (1998 Supp.).

Three projects included on the 1998 CARL Priority List are not included on the 1999 CARL Priority List. Hutchinson Island-Blind Creek (St. Lucie County) was removed because it has been completely acquired; Peacock Slough (Suwannee County) was removed because the CARL share of the project has been acquired and the Suwannee River Water Management District has agreed to acquire the remainder should the owners decide to sell; and the Less-Than-Fee portion of Annutteliga Hammock (Hernando County) was removed because the Southwest Florida Water Management District has acquired it.

Nine projects or portions of projects on the 1998 CARL Priority List were transferred to the new Negotiation Impasse group, for projects in which negotiations on the remaining essential parcels have been unsuccessful. Freedom Tower, Archie Carr Sea Turtle Refuge, Letchworth Mounds, Pierce Mound Complex, the Chassahowitzka Sandhill and Deland Ridge Sandhill sites of the Longleaf Pine Ecosystem project, and River Sink, St. Marks, Fannin, and Gainer Springs sites of the Florida's First Magnitude Springs project were transferred from the Priority group to the Negotiation Impasse group. Sand Mountain, Heather Island, and the Falling Creek Falls and Trillium Slopes/Nobles Ferry sites of the Suwannee Buffers project were transferred from the Bargain/Shared group to the Negotiation Impasse group.

One new project, Liverpool Park (Desoto County), was added to the 1999 CARL Priority List, and placed at the bottom of the Bargain/Shared group. A second new project, Bald Point (Franklin County), was combined with the Dickerson Bay project (Wakulla County) in the Priority group. In addition, four of the sixteen sites within the Brevard Coastal Scrub Ecosystem project were added to the Mega-Multiparcel group because of the great number of owners within each of these sites. The LAMAC also modified the project design boundaries (by adding or deleting acreage) of eleven projects on the 1998 CARL Priority List: Garcon Ecosystem, Estero Bay, Fakahatchee Strand, Florida Keys Ecosystem, Charlotte Harbor, Board of Trustees

Agenda - February 9, 1999 Page Two

Item 1, cont.

Charlotte Harbor Flatwoods, Lake Wales Ridge Ecosystem, East Everglades, Middle Chipola River, Wekiva/Ocala Connector, and Perdido Pitcher Plant Prairie.

The 1999 CARL Annual Report and Priority List are consistent with section 187.201(10), F.S., the Natural Systems and Recreation Lands section of the State Comprehensive Plan.

Pursuant to section 259.04(1)(c), F.S., within 45 days after the LAMAC submits the CARL Priority List to the Board of Trustees, the Board of Trustees shall approve, in whole or in part, the list of acquisition projects in the order of priority in which such projects are presented. If approved, the Division of State Lands, in cooperation with staff of the LAMAC, will develop a workplan to acquire projects in priority order.

(See Attachment 1, Pages 1-6)

RECOMMEND ACCEPTANCE OF THE 1999 CARL ANNUAL REPORT AND APPROVAL OF THE 1999 CARL PRIORITY LIST

Item 2 Jane deVore Clarke Purchase Agreement/Save Our Everglades CARL Project

REQUEST:  Consideration of a purchase agreement to acquire 320 acres within the Save Our Everglades CARL project from Jane deVore Clarke.

COUNTY:  Collier

LOCATION:  Section 33, Township 51 South, Range 28 East

CONSIDERATION:  $96,000

APPRAISED BY

REVIEW PARCEL/ Bowen APPROVED PURCHASE CLOSING

NO. OWNER ACRES (11/2/93) VALUE PRICE DATE

902001 Clarke 320 $96,000 $96,000 $ 96,000 150 days after

BOT approval

STAFF REMARKS: The Save Our Everglades CARL project is ranked number 4 on the CARL Mega-Multiparcel Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. The project contains 222,691 acres, of which 198,539.75 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 23,831.25 acres or 11 percent of the project will remain to be acquired.

This property is being acquired utilizing Federal acquisition procedures as a condition of the award of a $25 million Farm Bill grant from the U. S. Department of Interior to the Department of Environmental Protection for the purchase of lands within the Save Our Everglades CARL project. As an acreage tract, this parcel was not appraised as part of the settlement of the claim of inverse condemnation by nearly 3,900 lot owners in Southern Golden Gate Estates. While that Settlement Agreement required that the plaintiffs be given first priority, the plaintiffs' representative has given permission to proceed with the acquisition of this parcel.

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. Board of Trustees

Agenda - February 9, 1999 Page Three

Item 2, cont.

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

West of the huge sawgrass marsh of the central Everglades spreads a landscape of cypress swamps, marshes, slash-pine flatwoods, and tropical hammocks, through which water slowly flows to the mangrove swamps of the Ten Thousand Islands. The Save Our Everglades CARL project will conserve three large pieces of this landscape, connecting and extending existing conservation lands, helping to save the last of the Florida panthers and a host of other rare animals and tropical plants, preserving the flow of water to the rich estuaries of the Gulf coast, and allowing the public to enjoy this unique landscape for years to come.

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

The 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 1-12)

RECOMMEND APPROVAL

Item 3 Medalist Golf Company Acquisition/SFWMD/Atlantic Ridge Ecosystem CARL Project

REQUEST: Consideration of authorization to acquire an undivided 50 percent interest from the South Florida Water Management District in 871.14 acres within the Atlantic Ridge Ecosystem CARL project.

COUNTY: Martin

LOCATION: Gomez Grant

CONSIDERATION: $3,625,000 (The Board of Trustees' 50 percent share of the total purchase price of $7,250,000, to be adjusted upward or downward at the rate of $25,000 per upland acre, in accordance with the final surveyed acreage.)

STAFF REMARKS: The Atlantic Ridge Ecosystem CARL project is ranked number 8 on the CARL Bargain/Shared List approved by the Board of Trustees on February 10, 1998, and qualifies for purchase under the Division of State Lands' Land Acquisition Workplan. The project contains 12,514 acres, of which 2,577.2 acres have been acquired. After the Board of Trustees approves this agreement, 9,065.66 acres or 72 percent of this project will remain to be acquired.

On October 21, 1997, the Board of Trustees authorized staff to enter into an acquisition agreement with the South Florida Water Management District (District) to acquire the Atlantic Ridge Ecosystem CARL project in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S.

Pursuant to the terms of the acquisition agreement, the District contracted to purchase the Medalist Golf Company ownership at 100 percent of the approved value. The District shall be reimbursed 50 percent of all costs associated with its attempt to acquire lands within the project, including all pre-acquisition and closing related costs. Title to the property acquired will vest Board of Trustees

Agenda - February 9, 1999 Page Four

Item 3, cont.

jointly in the Board of Trustees and District, with each owning an undivided 50 percent fee simple interest. The Board of Trustees' purchase price will be 50 percent of the contract price negotiated by the District plus 50 percent of the costs incurred in the purchase of the property.

As provided for in the acquisition agreement, on November 13, 1998, the Governing Board of the District adopted Resolution No. 98-105, requesting reimbursement of the Board of Trustees' share of the purchase price for the Medalist Golf Company parcel, reimbursement of 50 percent of its pre-acquisition costs and reimbursement of 50 percent of its closing costs (recording, title insurance policy and survey costs). Pursuant to the acquisition agreement, the pre-acquisition and closing costs will be reimbursed from CARL incidental expense funds. The District's resolution contains all of the assurances required by the acquisition agreement.

In addition to the purchase of the 871.14-acre parcel, the District has acquired an option to purchase an additional 80.32 acres, more or less (Option Property), or any portion thereof, adjacent to the subject property. The District's option to purchase the Option Property is contingent upon the seller's failure to obtain all necessary permits required to develop the parcel as a residential community, with or without a golf course, within one year after closing on the subject property. The District's acquisition of the Option Property will be subject to the same terms, conditions and purchase price per acre as set forth in the purchase agreement for the subject property and pursuant to the terms of the acquisition agreement. If the seller fails to obtain the aforementioned permits, the District shall adopt a resolution requesting reimbursement for the Board of Trustees' share of the purchase price for the Option Property and the Division of State Lands will request authorization from the Board of Trustees.

Access to the Medalist Golf Company parcel, for management purposes only, will be provided by two perpetual non-exclusive easements, neither of which provide for public access. Easement "A" provides access from US Highway 1 through a gated entry and over an existing road on the adjacent Medalist Golf Club development. Easement "B" links Easement "A" to the subject property across the Option Property. Public access will only be provided to the Medalist Golf Company parcel if other adjacent project lands can be acquired within the Atlantic Ridge Ecosystem CARL project area.

While the Division of Recreation and Parks (DRP) has been designated as manager of the Atlantic Ridge Ecosystem CARL project, the Medalist Golf Company parcel will be managed by DRP on an interim basis until such time as public access is provided or for a maximum of five years, whichever occurs first. If public access is acquired within five years, the parcel will then be placed under long-term management by the DRP as a unit of the state park system. In the event that public access to the Medalist tract cannot be reasonably accomplished within five years, the long-term management of the parcel would become the responsibility of the District.

Cities spreading north from Miami and Fort Lauderdale have all but eliminated natural areas, such as coastal scrub, near the southeast Florida coast. The Atlantic Ridge Ecosystem CARL project will protect one of the largest patches of natural land left on this coast - conserving an important scrub, pine flatwoods, marshes, and the floodplain of the South Fork of the St. Lucie River, protecting the quality of water in the St. Lucie and Loxahatchee River basins, and allowing the public to enjoy the original landscape of this fast-growing 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 3, Pages 1-61)

RECOMMEND APPROVAL Board of Trustees

Agenda - February 9, 1999 Page Five

Item 4 Wild/Terrain Developers Corporation Acquisitions/SFWMD/St. Lucie County/North Fork St. Lucie River CARL Project

REQUEST: Consideration of authorization to acquire an undivided 50 percent interest in 99.48 acres within the North Fork St. Lucie River CARL project (Raymond B. and Carl E. Wild and Terrain Developers Corporation parcels) from the South Florida Water Management District and St. Lucie County.

COUNTY: St. Lucie

LOCATION: Section 29, Township 35 South, Range 40 East

CONSIDERATION: $700,000 (The Board of Trustees' 50 percent share of the total purchase price of $1,400,000)

STAFF REMARKS: The North Fork St. Lucie River CARL project is ranked number 18 on the CARL Bargain\Shared Project List approved by the Board of Trustees on February 10, 1998, and qualifies for purchase under the Division of State Lands' Land Acquisition Workplan. The project contains 2,869 acres, of which 1,123.59 have been acquired. After the Board of Trustees approves this agreement, 1,645.93 acres or 57 percent of this project will remain to be acquired.

On December 16, 1997, the Board of Trustees authorized staff to enter into an acquisition agreement with the South Florida Water Management District (District) and St. Lucie County (County) to acquire the North Fork St. Lucie River CARL project in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S.

The District and the County contracted to purchase the Wild ownership at 92 percent of the appraised value and the Terrain Developers Corporation ownership at 91 percent of the appraised value. The Board of Trustees' purchase price will be 50 percent of the contract prices negotiated by the District and the County plus 50 percent of the costs incurred in the purchase of the property. Pursuant to the terms of the acquisition agreement, the District shall be reimbursed 50 percent of all costs associated with its attempt to acquire lands within the project, including all pre-acquisition and closing related costs. Title to the property acquired will vest jointly in the Board of Trustees and District with each owning an undivided 50 percent fee simple interest.

As provided for in the acquisition agreement, on November 13, 1998, the Governing Board of the District adopted Resolution No. 98-109, requesting the Board of Trustees' share of the purchase price for the Wild parcels and Terrain Developers Corporation parcels, reimbursement of 50 percent of its pre-acquisition costs and reimbursement of 50 percent of its closing costs (recording, title insurance policy and survey costs). Pursuant to the acquisition agreement, the pre-acquisition and closing costs will be reimbursed from CARL incidental expense funds. The District's resolution contains all of the assurances required by the acquisition agreement.

These properties will be managed by the Division of Marine Resources as part of the North Fork St. Lucie River State Buffer Preserve.

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 4, Pages 1-60)

RECOMMEND APPROVAL Board of Trustees

Agenda - February 9, 1999 Page Six

Item 5 Alton R. Wells Option Agreement/Survey Waiver/Egret Island Project

REQUEST:  Consideration of (1) an option agreement to acquire 15.2 acres within the Egret Island Division of Recreation and Parks' Additions and Inholdings project from Alton R. Wells; and (2) a request for a survey waiver.

COUNTY:  Monroe

LOCATION:  Sections 22, 23, and 27, Township 61 South, Range 39 East

CONSIDERATION:  $9,000

APPRAISED BY

REVIEW Johnston APPROVED PURCHASE OPTION

NO. PARCEL ACRES (08/04/95) VALUE PRICE DATE

902002 Wells/B 15.2 $9,000 $9,000 $9,000 150 days

after BOT

approval

STAFF REMARKS: The Egret Island project has been identified on the Division of Recreation and Parks' Additions and Inholdings List. This agreement was negotiated by the Division of State Lands on behalf of the Division of Recreation and Parks (DRP) under the State Parks Additions and Inholdings Preservation 2000 program. The project contains 30.9 acres, of which 12.3 acres have been acquired. After the Board of Trustees approves this agreement, 3.4 acres or 11 percent of the project will remain to be acquired.

Preliminary title information revealed outstanding oil, gas and mineral interests in favor of the State of Florida. 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 a survey of this parcel is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the cost of the survey would be prohibitive relative to the expected value of the parcel.

While this parcel is being recommended for a waiver of survey at this time, should the title commitment and field inspection reveal substantive surveying or surveying related issues which impact the parcel, a survey will be provided by the purchaser prior to closing. In the event the 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.

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

This property will be managed by the DRP as an addition to the John Pennekamp Coral Reef State Park.

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

(See Attachment 5, Pages 1-19)

RECOMMEND APPROVAL Board of Trustees

Agenda - February 9, 1999 Page Seven

Item 6 Elizabeth Wade/Clay Electric Company Easements

REQUEST: Consideration of a request to issue (1) a perpetual non-exclusive access easement to Elizabeth Wade; and (2) a 50-year non-exclusive utility easement to Clay Electric Cooperative, Inc., each containing 1.72 acres, more or less.

COUNTY: Clay

Easement Numbers 30168 and 30169

APPLICANTS: Elizabeth Wade and Clay Electric Cooperative, Inc.

LOCATION: A portion of Section 24, Township 04 South, Range 23 East, and Section 19, Township 04 South, Range 24 East

CONSIDERATION: $2,500 to be deposited in the Internal Improvement Trust Fund, and 60 loads of clay and a culvert for road improvement, as requested by the Department of Agriculture and Consumer Services, Division of Forestry (Forestry).

STAFF REMARKS: Forestry currently manages Jennings State Forest under Board of Trustees Lease Number 3946. Ms. Elizabeth Wade owns a 40-acre inholding that is surrounded by state forest land. She has requested an easement to secure access to her property. Clay Electric Cooperative, Inc., has requested an easement to provide her with electricity. Both easements will be located along one-quarter mile of existing state forest road.

Pursuant to subsection 704.01(2), F.S., an owner of land cannot be denied access to his/her property and may lawfully use and maintain an easement by means of the nearest practical route. The proposed easement represents the nearest practical route for access.

Forestry has reviewed both easement requests and states that there is no practical way to gain access to the Wade property without crossing the state forest. Forestry also states that the easements are not incompatible with its management of the state forest. It has recommended issuance of the easements subject to the following conditions: (1) the road must remain open to the public; (2) Ms. Wade must provide a net positive benefit to the state forest by buying 60 loads of clay and a 24-inch by 30-foot culvert to improve the one-quarter mile road; (3) Ms. Wade must agree to assume responsibility for any additional road maintenance if she wants the road maintained to a higher standard than state forest standards; and (4) Ms. Wade must coordinate any of her road maintenance activities with state forest personnel and ensure that exotic species are not introduced with road fill material. Ms. Wade has agreed to the special conditions and they have been included in the easement.

On December 3, 1998, the Land Acquisition and Management Advisory Council (LAMAC) recommended approval of the easements with the stipulation that Ms. Wade limit any future subdivision of her 40 acres to two parcels. Although there has been no judicial determination that the applicant is entitled to a statutory way of necessity under the provisions of section 704.01(2), F.S., staff has reviewed this matter and it appears that the applicant's property meets the criteria for a statutory way of necessity. If the applicant is forced to file suit to establish a statutory way of necessity and the circuit court awards the applicant an easement, the Board of Trustees would not be able to require the applicant to restrict the use of her property as a condition of the easement. Based upon the foregoing, the Department of Environmental Protection does not believe that the Board of Trustees should condition granting the easement on the applicant agreeing to restrict the future use of her property. For this reason, staff recommends that the Board of Trustees not approve the LAMAC recommendation to limit subdivision of Ms. Wade's property.

Pursuant to section 18-2.020, F.A.C., a one-time fee for private easements of greater than one-quarter acre in size shall be assessed and be based upon an appraisal. The applicant submitted Board of Trustees

Agenda - February 9, 1999 Page Eight

Item 6, cont.

an appraisal of the fee value of the 1.72-acre easement area, performed by John R. Tabler, State Certified Residential Appraiser. The effective date of value was June 26, 1998, and the estimated market value of the 1.72-acre parcel was $2,500. Staff performed an administrative review of the appraisal and recommends acceptance of the parcel's market value of $2,500 as payment for both easements.

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 Clay County.

(See Attachment 6, Pages 1-30)

RECOMMEND APPROVAL OF THE TWO EASEMENT REQUESTS, WITHOUT LAMAC'S REQUIREMENT TO LIMIT FUTURE SUBDIVIDING OF THE APPICANT'S PROPERTY

Item 7 Final Order of Denial of Petition for Declaratory Statement/Seminole County

DEFERRED FROM THE JANUARY 26, 1999 AGENDA

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

COUNTY: Seminole

APPLICANT: Seminole County, Petitioner

STAFF REMARKS: On September 24, 1998, Seminole County (County) filed a Petition for Declaratory Statement under section 120.565, F.S., requesting that the Board of Trustees answer the following questions: (1) whether "the lands and waters known as Clifton Springs and its associated waterways are lands and/or waters of the State subject to the County's enforcement powers under section 253.05, Florida Statutes. . . "; and (2) whether, in light of the petition, the Board of Trustees "will seek to enforce any of the State's rights under section 253.04, Florida Statutes." Petitioner alleges that under section 253.05, F.S., it has the duty to see that lands owned by the state shall not be the object of damage, trespass, depredation, or unlawful use. (The petition does not allege that any such violations of state law are occurring at Clifton Springs.) Petitioner further alleges that it has an interest in public lands for the use and benefit of the County's citizens and that it owns a fish camp parcel proximate to and potentially influenced by Clifton Springs. It also alleges an undefined "potential threat" to Lake Jesup (a sovereign lake), to the Sulphur Springs Apphaostracon (snail), and to the Great Leather Fern.

Rule 28-105.003, F.A.C., requires the Board of Trustees to take action on a Petition for Declaratory Statement only at a duly noticed public meeting. No hearing was timely requested, and none was held. Hearings are discretionary under section 28-105.003, F.A.C.

The County's petition should be denied because the Board of Trustees lacks jurisdiction to resolve disputes over title to real property. Original and exclusive jurisdiction to resolve disputes

Board of Trustees

Agenda - February 9, 1999 Page Nine

Item 7, cont.

over title to real property lies in the circuit court in the county in which the land lies. Section 26.012(2)(g), F.S., (Supp. 1998); Board of Trustees v. Mobil Oil Corp., 455 So. 2d 412, 415 (Fla. 2d DCA 1984), approved in part, quashed in part sub nom. Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339 (Fla. 1986), cert. denied 479 U.S. 1065 (1987).

Even if the Board of Trustees had jurisdiction over this question, the petition is deficient under section 120.565, F.S., because it does not contain the facts necessary for the Board of Trustees to make such a determination. Specifically, the County does not address the many factors involved in determining navigability in fact at statehood, including whether the water body was used or capable of being used, in its ordinary and natural condition, for waterborne transportation for purposes of trade or travel by means common in the local area. See, Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889).

Further, declaratory statements should not be rendered when there is only the mere possibility of a dispute in the future. The issue cannot be speculative, but must present a "bona fide, actual, present and practical need for a declaration." Okaloosa Island Leaseholders Assoc., Inc., v. Okaloosa Island Authority, 308 So. 2d 120, 122 (Fla. 1st DCA 1975). The petition does not establish that enforcement under either section 253.04 or 253.05, F.S., is presently necessary since it does not allege any violation of state law occurring at Clifton Springs or its associated waterway.

For the reasons stated above, the petition should be denied, without leave to amend in light of the inherent lack of jurisdiction in the Board of Trustees to resolve disputes over title to real property.

(See Attachment 12, Pages 1-22 submitted with the January 26, 1999 Agenda)

RECOMMEND APPROVAL OF THE FINAL ORDER OF DENIAL OF PETITION FOR DECLARATORY STATEMENT

Item 8 City of Vero Beach Recommended Consolidated Intent

REQUEST: Consideration of an application for a modification to a 25-year sovereignty submerged lands management agreement to increase the preempted area from 958,581 square feet (22 acres) to 1,531,100 square feet (35 acres), more or less, for a managed anchorage mooring field.

COUNTY: Indian River County

Management Agreement: MA-31-065

File No.: 31-136410-4

Current Application No.: 31-145213-001

APPLICANT: City of Vero Beach (City)

LOCATION: Sections 30 and 31, Township 32 South, Range 40 East, in Indian River Lagoon, Class III Waters, Unclassified (Prohibited) Shellfish Harvesting Area, Manatee Area slow speed zone, within the local jurisdiction of the City of Vero Beach.

Aquatic Preserve: No

Outstanding Florida Waters: No

Board of Trustees

Agenda - February 9, 1999 Page Ten

Item 8, cont.

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

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

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

The applicant is proposing to expand the City marina's open water mooring field from 42 existing mooring buoys to 57 mooring buoys (15 additional mooring buoys). These 15 additional moorings will be available to transient boaters on a first-come, first-serve basis. The existing mooring field will be expanded to the north by 4.4 acres (193,414 square feet) and to the south by 8.7 acres (379,095 square feet) for an addition of 13.1 acres (572,509 square feet). The expanded mooring field will encompass 35.1 acres (1,531,100 square feet).

The mooring spaces consist of anchors, cables and buoys designed for the temporary mooring of recreational vessels. The applicant is utilizing the municipally-owned, upland property for amenities that include: convenient sewage pumpout facilities, fueling facilities, waste receptacles, a dock for land access, an on-site harbormaster, laundry facilities, restroom and shower facilities, and a ship store. The applicant hopes that by offering these amenities, boaters will be encouraged to use the mooring field. A nominal rental fee will be collected by the applicant from tenants of the mooring field in order to cover only operating cost of the facility.

On March 8, 1988, the Board of Trustees approved a fee-waived, three-year management agreement as a pilot project for the existing managed anchorage mooring field. This management agreement was to be reevaluated by the Board of Trustees after the first year to reconsider the fee-waived status. Due to construction delays and sufficient time needed to properly evaluate the City's cost and fee structure, the City was delayed in submitting the required yearly financial report until February 26, 1990. Based on this report, it was determined that the pilot program was not a profit-making venture. On August 28, 1990, the Board of Trustees authorized an extension of the fee-waived period through March 8, 1991, the term of the management agreement, at which time the Board of Trustees would reevaluate Board of Trustees

Agenda - February 9, 1999 Page Eleven

Item 8, cont.

the pilot project. This was done to prevent the City from incurring financial losses. A letter was sent to the City on September 10, 1992, requesting a financial report so that the Department of Natural Resources could comply with the Board of Trustees' request to reevaluate the fee-waived status of the project. The City responded on February 12, 1993, with the requested financial report. This February 12, 1993 report verified that the pilot program was working and that the mooring area was a not-for-profit venture. The Board of Trustees approved delegations of authority, that became effective July 19, 1993, which allowed staff of the DEP to approve, among other things, management agreements. Based on this financial report and on these delegations, specifically DSL-58, the Division of State Lands, on March 15, 1994, approved a 25-year management agreement, with special conditions, to the City to operate the open water mooring area. The City submitted another financial report to the DEP on February 27, 1997. This latest report again supported the fact that the mooring area was still operating as a not-for-profit venture.

The City adopted Resolution 98-18, on October 6, 1998, which limits liveaboard mooring to no more than six months in a 12 month period. The applicant will continue to abide by the existing City Resolution (88-54), and the newly adopted City Resolution (98-18), and the management agreement for the management of the mooring field.

The primary goal of the applicant is to gain control of random mooring and to improve water quality in this portion of the Indian River Lagoon. At present, when the current buoy mooring space is full, boat operators randomly moor wherever there appears to be room. This random mooring creates a safety and navigational concern when boats are moored in close proximity to each other or are moored in areas adjacent to navigational channels. In addition, when random mooring leads to concentrated use of vessels within an area, there is also concern that these vessels contribute to existing water quality problems. The randomly moored vessels routinely discharge domestic sewage from marine heads and showers and other waste materials into waters of the state. The applicant wishes to increase the anchorage area in order to accommodate more vessels thereby creating orderly vessel orientation and to deter the discharge of contaminated water and material into waters of the state. This area of the river has not been known to support aquatic vegetation due to deep water (greater than nine feet deep) and diminished water clarity.

The applicant provides a harbormaster to assign and authorize moorings, oversee the mooring field, and manage the upland facilities. All tenants of the field will be required to enter into a rental agreement with the harbormaster within twelve hours of achieving anchorage. This rental agreement will bind the tenants to the rules and regulations as provided in City Resolution 88-54. Only authorized and operational vessels, those capable of maneuvering under their own power, and those in compliance with the United States Coast Guard (USCG) regulations and safety standards shall be allowed within the mooring field. Vessels without integral mechanical power for propulsion will not be allowed. Also, a special approval condition requires that the applicant obtain the approval of the USCG for the additional mooring area.

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

The manatee recommendations from the Division of Marine Resources have been addressed within the specific conditions of the environmental resource permit. The applicant has also Board of Trustees

Agenda - February 9, 1999 Page Twelve

Item 8, cont.

agreed to recommendations that will enhance local manatee location and identification efforts, which will be included as a specific permit condition. Noticing of this project was exempted from the noticing requirements of section 253.115, F.S., since it is a modification to an existing management agreement.

Staff is of the opinion that this project will result in a net improvement to the environment, as well as the safety of the boating community. This net environmental improvement will be the result of a controlled mooring area in an area where uncontrolled mooring now takes place; a mooring area of adequate water depths assuring a reduction in water quality impacts; and no resource impacts in an area where uncontrolled resource impacts are now taking place. Construction activities will be limited to the installation of 15 helical screw systems for anchoring and mooring buoys.

Section 163.3194(3)(b), F.S., in summary, states that a local development approved or undertaken by a local government shall be consistent with the comprehensive plan if it meets all criteria of the plan and all criteria enumerated by the local government. The management agreement is consistent with the adopted plan according to a letter received on December 14, 1998, from the City of Vero Beach.

(See Attachment 8, Pages 1-41)

RECOMMEND APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITION