AGENDA

SEPTEMBER 28, 1999

Item 1 Minutes

Submittal of the Minutes of the August 12, 1999 Cabinet Meeting.

RECOMMEND ACCEPTANCE

Item 2 City of Sarasota Recommended Consolidated Intent

REQUEST: Consideration of an application for (1) a modification of a 25-year sovereignty submerged lands lease for an existing city-owned, commercial marina to increase the number of wetslips from 204 to 234 within the existing lease area; (2) authorization for the severance of 3,305 cubic yards of sovereign material; and (3) a waiver of the severance fee.

APPLICANT: City of Sarasota

CONSIDERATION: (1) $18,741.26, representing (a) $11,305.01, as the annual lease fee computed at the base rate of $0.1156 per square foot for 139,706 square feet, discounted 30 percent because of the first-come, first-served nature of the facility; (b) $7,436.25 for the severance of sovereign material computed at the rate of $2.25 per cubic yard pursuant to section 18-21.011(3)(a)2, F.A.C.; and (2) three percent of the gross receipts from marina operations (exclusive of fuel sales) per year, until July 31, 2012, for a 477,679-square-foot area. A waiver of the severance fee has been requested. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fees may be adjusted based on six percent of the rental value pursuant to section 18-21.011, F.A.C. On August 1, 2012, lease fees for the 477,679-square-foot area will be assessed at the prevailing rate pursuant to section 18-21.011, F.A.C., in effect at that time.

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, 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.

On December 4, 1997, the Board of Trustees approved a modification to the lessee’s existing, five-year sovereignty submerged lands lease. The modification expanded the existing 139,706-square-foot lease area by 477,679 square feet for a total of 617,385 square feet, and extended the lease term to 25 years (until the year 2022). The 477,679-square-foot expansion incorporated registered, grandfathered structures into the lease for a total of 204 slips.

The lessee’s current proposal is to expand the existing 204-slip, city-owned, commercial marina by constructing 58 slips and removing 28 existing slips for a net increase of 30 additional slips, thereby creating a 234-slip facility. All proposed structures will be constructed within the boundaries of the existing 617,385-square-foot sovereignty submerged lands lease. The proposed construction over sovereignty submerged lands includes one dock that extends out approximately 600 feet from the seawall with 22 finger piers of varying lengths and four feet wide (44 slips); four 30-foot-long by 4-foot-wide finger piers (eight slips) in the north basin; and three 25-foot-long by 3-foot-wide finger piers (six slips) in the south basin. Two docks accommodating 28 slips in the north basin will be removed. A minimum of 90 percent of the slips will be available to the public on a first-come, first-served basis. This has been addressed as a special lease condition.

The lessee is also proposing to dredge a total of 3,305 cubic yards of sovereign material to a depth of minus seven feet NGVD. The dredging will occur within the existing lease area, and within a 60-foot-long by 60-foot-wide area located outside of, but contiguous to, the existing lease area. The purpose for the dredging is to provide navigable access in and around a portion of the proposed docking area. The lessee intends to place the spoil material from the dredging at a temporary disposal site adjacent to the marina. The lessee has asked for a waiver of the severance fees, pursuant to 18-21.011(3)(c), F.A.C., which provides for a waiver of this fee if the severed dredge material is placed on public property and used for public purpose, or when it is affirmatively demonstrated that the severed dredge material has no economic impact. A final site for the material has not been determined by the lessee. Therefore, in order to obtain a waiver of this fee, the lessee must qualify under one of these rule criteria. This has been addressed as a special approval condition.

The lessee has designed the project to reduce impacts to seagrasses and minimize the area needed to be dredged. However, approximately 276 square feet of seagrasses will be directly impacted by the project. The environmental resource permit requires that the 276 square feet of seagrasses be removed and relocated to a seagrass mitigation area. This has been addressed as a specific condition of the environmental resource permit, which provides criteria by which the lessee must ensure the survival of the transplanted seagrasses. The lessee also intends to install a grating material on the decking of two docks and a pier that traverses seagrasses located within the lease area and elevate dock access piers to five feet above mean high water to allow for greater light penetration.

The uplands adjacent to the lease area currently include a marina plaza, a restaurant and retail shops. A July 15, 1999 site inspection revealed that the facility is in compliance with the terms and conditions of the existing lease.

The terms and conditions of the existing lease allow sewage pumpout facilities, fueling facilities, and liveaboards at the existing docks. The environmental resource permit and modified sovereignty submerged lands lease will prohibit liveaboards and fueling facilities at the additional slips. To ensure compliance with this prohibition, the lessee will submit an engineer’s drawing which clearly depicts the new slips where liveaboards are prohibited. This has been addressed as a special approval condition. The environmental resource permit will require that each slip rental agreement for the new slips contain a clause prohibiting liveaboards. Furthermore, the lessee is required to submit a copy of the slip rental agreement to the DEP within 30 days of its execution. The recommendations of the former Division of Marine Resources regarding manatees have been addressed as specific conditions in the environmental resource permit.

This item is being presented to the Board of Trustees for consideration because the proposed expansion of slips exceeds the ten percent delegation of authority threshold, pursuant to section 18-21.0051(2)(a), F.A.C.

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 other criteria enumerated by the local government. The proposed action is consistent with the adopted plan according to a letter received from the City of Sarasota on September 8, 1999.

(See Attachment 2, Pages 1-32)

REQUEST: Consideration of approval to publish: (1) a Notice of Proposed Rulemaking on revisions to chapter 18-21, Sovereignty Submerged Lands Management, F.A.C., that specify standards and criteria for the use of sovereignty submerged lands for project mitigation, to authorize such use in the form of a consent of use, and to prohibit the use of these lands for mitigation banks; and (2) a Notice of Proposed Rulemaking regarding amendments to chapter 18-2, Management of Uplands Vested in the Board of Trustees, F.A.C., that specify standards and criteria for the use of state-owned uplands for project mitigation, and to prohibit the use of these lands for mitigation banks.

STAFF REMARKS: On May 12, 1998, the Board of Trustees adopted a policy that: (1) established standards and criteria that should be applied to project mitigation activities on state-owned lands; (2) prohibited the use of those lands for mitigation banking; and (3) directed staff to proceed to rulemaking. Project mitigation refers to mitigation conducted to offset adverse impacts of specific projects authorized under the environmental resource permit and wetland resource (dredge and fill) permit programs under Part IV of chapter 373, F.S. It specifically does not include mitigation banks.

Based on DEP staff evaluation of the issues in the policy, it is recommended that chapters 18-21, and 18-2, F.A.C., be amended to formally adopt those standards and criteria that are not already adopted under Part IV of chapter 373, F.S., governing environmental resource permits and wetland resource permits. Staff believes these amendments address the Board of Trustees’ concerns regarding the use of both sovereignty submerged lands and state-owned uplands for mitigation, while providing potential significant benefits to the environment. The proposed amendments to chapters 18-21 and 18-2, F.A.C., reflect the differences in the management of sovereignty submerged lands and state-owned uplands, respectively. This recognizes that not all sovereignty submerged lands have specific management plans, whereas state-owned uplands are required to have management plans.

Two sections of chapter 18-21, F.A.C., are proposed to be amended. Section 18-21.004, F.A.C., would be amended to allow project mitigation required under chapter 161, F.S., or Part IV of chapter 373, F.S., to occur on sovereignty submerged lands, where:

• the proposed mitigation is not inconsistent with any existing Board of Trustees-approved management plans (e.g., aquatic preserve management plans) or management agreements (e.g., management agreement with the U.S. Fish and Wildlife Service to establish buffer zones surrounding a wildlife refuge) in effect for that land. This requirement shall not apply when no site specific plans exist;
• the work proposed by the mitigation would not supplant currently funded environmental enhancement or restoration work; and
• the mitigation will not remedy past unauthorized activities in lieu of enforcement action.

Section 18-21.005, F.A.C., would be amended to allow mitigation, conducted as noted above, to be authorized by a consent of use. In accordance with the Board of Trustees’ policy adopted on May 12, 1998, section 18-21.004, F.A.C., also would provide that mitigation banking would be prohibited on sovereignty submerged lands.

Section 18-2.018, F.A.C., is proposed to be amended. Mitigation required under chapter 161, F.S., or Part IV of chapter 373, F.S., would be allowed to occur on state-owned uplands, where:

• the proposed mitigation is consistent with management plans approved pursuant to sections 253.034 or 259.032, F.S. If no management plan is in effect for that land, the Board of Trustees must determine whether the proposed mitigation is consistent with sections 253.034 or 259.032, F.S.;
• the work proposed by the mitigation would not supplant currently funded environmental enhancement or restoration work; and
• the mitigation will not remedy past unauthorized activities in lieu of enforcement action.

Section 18-2.018 would also prohibit mitigation banking on state-owned uplands.

Notices of Proposed Rule Development for both chapters 18-21 and 18-2, F.A.C., were published in the Florida Administrative Weekly on March 5, 1999. The DEP conducted public workshops on March 24 and 25, 1999, in Leon and Orange counties respectively to present preliminary rule language and to gather comments and suggestions. The currently proposed rule incorporates public input received at those workshops and in follow-up written comments to the extent practicable. However, several comments were received from representatives of the mitigation banking industry expressing concern with the decision of the Board of Trustees to prohibit mitigation banking on state-owned lands.

Upon approval by the Board of Trustees, staff will publish Notices of Proposed Rulemaking in the Florida Administrative Weekly. The notices will include an opportunity for public hearings. Staff will return to the Board of Trustees for final rule adoption, pending the results of the notices and potential public hearings.

(See Attachment 3, Pages 1-29)

RECOMMEND APPROVAL

REQUEST: (1) Acceptance of a report on status of the removal of the houseboats from Houseboat Row; and (2) authorization for staff to enforce the Final Judgment of Ejectment.

APPLICANTS: City of Key West and Department of Environmental Protection

COUNTY: Monroe

STAFF REMARKS: On July 28, 1998, the Board of Trustees considered a petition by the City of Key West (City) to stay ejectment of the structures on Houseboat Row (HBR). The Board of Trustees had prevailed in the case of the City of Key West and Board of Trustees of the Internal Improvement Trust Fund v. Skifano, et al. (Case No. 94-409-CA-12), and had been granted a Writ of Possession entitling the Board of Trustees to eject 26 houseboats and other floating structures that were occupying an area of submerged land in Key West known as HBR. The City petitioned the Board of Trustees to stay ejectment action and instead to lease the submerged land to the City so that HBR could remain. The Department of Environmental Protection (DEP) opposed the City’s petition and recommended that the residents of HBR be given six months to relocate and that a task force be formed to address the larger issues associated with unmanaged anchoring in Key West. The Board of Trustees ultimately agreed to defer action for three months in order to give the City an opportunity to prepare a proposal and a reasonable time schedule for dealing with HBR and with the other liveaboards located in and around Key West. During October 1998, Hurricane Georges hit Key West and only 16 of the 26 houseboats survived the storm.

The matter came back to the Board of Trustees on December 8, 1998, and the Board of Trustees denied the request of the City to convey the sovereign lands underlying HBR to the City so that HBR could remain on the seawall along Roosevelt Boulevard. The Board of Trustees also deferred execution of the Final Judgment of Ejectment to allow the City 120 days (April 7, 1999) to submit "a more detailed mooring and anchorage plan and an acceptable Houseboat Row relocation plan."

The City Engineering Services Division developed its "Garrison Bight Expansion Feasibility Study" dated February 28, 1999, for the relocation of HBR to Garrison Bight. The City Commission considered the study, which presented four options, and directed its staff to further develop option two, which called for an expenditure of approximately $450,000 to create 28 additional permanent live-aboard slips in the City-owned Garrison Bight Marina, together with associated utility services. Authorization for the Garrison Bight expansion from the Board of Trustees is not required because the submerged bottom of Garrison Bight is City-owned. A status report presented to the Board of Trustees on May 25, 1999, noted that the planned expansion of the City Marina would be presented to the City Commission in June 1999.

The City staff’s "Garrison Bight Expansion Conceptual Plan" was rejected by the Key West City Commission at its June 1999 meeting. Concerns over funding and growth restrictions, among other things, gave rise to the negative 5-2 vote. However, at its July 7, 1999 meeting the City Commission reversed itself by a 6-1 vote, subject to a satisfactory funding study by City staff and agreement by the Department of Community Affairs (DCA) that 26 Rate of Growth Ordinance (ROGO) restricted residential units could be transferred from HBR, thereby making expansion of the City-owned marina possible.

At its September 8, 1999 meeting, the Key West City Commission satisfied its financial concerns and approved by resolution a Memorandum of Understanding between the City, the DCA, and the DEP which recognizes the transfer of 26 ROGO units and otherwise facilitates the immediate transfer of HBR houseboats to Garrison Bight Marina. Specifically, the City is in the process of presenting HBR residents with agreements to move to the Marina. Those residents who do not sign agreements will have their utility service disconnected and the DEP, as staff to the Board of Trustees, will begin the process of removal of houseboats pursuant to the Final Judgment of Ejectment. Those who agree to move will have a time certain within which to move to the City’s marina at Garrison Bight or will also be subject to removal pursuant to the Final Judgment of Ejectment.

(See Attachment 4, Pages 1-11)

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

LOCATION: Statewide

STAFF REMARKS: The Second 1999 Conservation and Recreation Lands (CARL) Interim Report was prepared pursuant to chapter 259, F.S., and rule 18-8, F.A.C. During the Land Acquisition and Management Advisory Council (LAMAC) meetings of June 17, July 29, and September 2, 1999, the LAMAC added one project and approved project design amendments to five projects on the CARL Priority List. The interim report includes the Second 1999 Interim CARL Priority List of CARL projects approved by the LAMAC and proposed for adoption by the Board of Trustees. In addition, the report includes a revised project assessment and a project design for the new project, Julington/Durbin Creeks, which was added to the Priority List and ranked number 15 on the Bargain/Shared Project List. The Julington/Durbin Creeks project was expedited in the CARL evaluation and selection process at the request of the St. Johns River Water Management District (District) and the City of Jacksonville (City) to facilitate its acquisition. This project was previously ranked on the CARL Priority List from 1982 through 1991 and from 1993 through 1996, but was never acquired because the owner was unwilling to sell at the price the state was willing to offer. The District and the City, via negotiations with a potential developer of the property, now appear able to acquire a portion of the property and seek the state as a partner in the acquisition. Maps and descriptions of five other projects whose boundaries have been modified are included in the interim report; these include: Florida Keys Ecosystem (Monroe County); Florida’s First Magnitude Springs - Madison Blue Spring (Madison County); Green Swamp (Lake and Polk counties); Ichetucknee Trace (Columbia County); and Indian River Lagoon Blueway (Brevard County).

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

The interim report will be submitted separately.

REQUEST: Consideration of an option agreement to acquire 1,238 acres within the Wekiva-Ocala Greenway CARL project from Anna Maude Shockley, et al.

COUNTY: Lake

LOCATION: Section 36, Township 17 South, Range 27 East; Section 31, Township 17 South, Range 28 East; Section 01, Township 18 South, Range 27 East; and Section 06, Township 18 South, Range 28 East

CONSIDERATION: $2,500,000

STAFF REMARKS: The Wekiva-Ocala Greenway CARL project is ranked number 6 on the CARL Priority Project List approved by the Board of Trustees on February 9, 1999, and is eligible for negotiation under the Division of State Lands’ Land Acquisition Workplan. The project contains 67,397 acres, of which 34,302.9 acres have been acquired or are under agreement to be acquired. After the Board of Trustees approves this agreement, 31,856.1 acres or 47 percent of the project will remain to be acquired.

All mortgages and liens will be satisfied at the time of closing. The sellers will enter into a leaseback with the Board of Trustees, for a period of time not to exceed eleven months from the date of closing, in order for the sellers to remove their cattle operation. The Department of Agriculture and Consumer Services, Division of Forestry (DOF), the future managing agency, has determined that it can effectively manage the property with the leaseback in place for the eleven-month period. In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing.

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

The springs, rivers, lakes, swamps and uplands stretching north from Orlando to the Ocala National Forest are an important refuge for the Florida black bear, as well as other wildlife such as the bald eagle, swallow-tailed kite, Florida scrub jay and wading birds. The Wekiva-Ocala Greenway CARL project will protect these animals and the Wekiva and the St. Johns river basins by protecting natural corridors connecting Wekiwa Springs State Park, Rock Springs Run State Reserve, the Lower Wekiva River State Reserve and Hontoon Island State Park with the Ocala National Forest. It will also provide the people of the booming Orlando area with a large, nearby natural area in which to enjoy camping, fishing, swimming, hiking, canoeing and other recreational pursuits.

The property will be managed by the DOF as part of the Seminole State Forest.

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

(See Attachment 6, Pages 1-46)

RECOMMEND APPROVAL

REQUEST: Consideration of (1) the acceptance of an assignment of option agreement to acquire 3,280.2 acres within the Wakulla Springs Protection Zone CARL project and 8.7 acres within the Wakulla Springs Protection Zone Division of Recreation and Parks’ Additions and Inholdings project from The Nature Conservancy, Inc.; (2) designation of the Division of Recreation and Parks and the Division of Forestry as managing agencies; and (3) evaluation and amendment of the management policy statement for the Wakulla Springs Protection Zone CARL project.

COUNTY: Wakulla

LOCATION: Sections 01 through 03, 10 through 12 and 14, Township 03 South, Range 01 West; Sections 17 and 20, Township 03 South, Range 01 East; Lots 20 through 22 Hartsfield Survey; and, Lots 1(A), 3(C), 4(D) Nicholson property and fractional lot known as Nicholson Lands

CONSIDERATION: $6,390,000

* Information not available but the seller has held the property for more than 10 years.

STAFF REMARKS: The Wakulla Springs Protection Zone CARL project is ranked number 21 on the CARL Priority Project List approved by the Board of Trustees on February 9, 1999, and is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition

Workplan. The project has also been identified on the Division of Recreation and Parks’ Additions and Inholdings List and is eligible for negotiation under the State Parks Additions and Inholdings Preservation 2000 program. This project contains 10,243 acres, of which these would be the first to be acquired. After the Board of Trustees approves this agreement, 6,954.1 acres or 68 percent of the project will remain to be acquired.

Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands (DSL) and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase the parcel from The Nemours Foundation. After this acquisition is approved, the Board of Trustees will acquire the option from TNC with no reimbursement to TNC for overhead cost. The property is being acquired at 100 percent of DSL approved value and the multi-party agreement provides that in no event will the purchase price for the option and the purchase price of the property exceed the DSL approved value of the property.

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

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

Just south of Tallahassee, Wakulla Springs – one of the largest and deepest artesian springs in the world – is now protected by a state park, but the enormous caverns that feed the spring spread far to the north and west of the park. The Wakulla Springs Protection Zone CARL project will protect the spring by protecting the land above the conduits that feed it, connect the state park with the Apalachicola National Forest, and provide the public an area for camping, hiking, and hunting.

Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate the Department of Environmental Protection, Division of Recreation and Parks (DRP) and the Department of Agriculture and Consumer Services, Division of Forestry (DOF) as the managing agencies for this site. The DRP will manage the portion south of State Road 267 and west of State Road 61, along with the additions and inholdings parcel, as part of the Edward Ball Wakulla Springs State Park. The DOF will manage the remainder of this acquisition as a state forest under a multiple-use management regime. In 1980, Mr. Ball’s will provided that his residuary estate go to The Nemours Foundation, of which all income and sale of assets would be used exclusively in the state of Florida for the benefit of crippled children.

Section 259.032(9)(b)2., F.S., requires that the Board of Trustees, concurrent with its approval of the initial acquisition agreement within a project, "evaluate and amend, as appropriate, the management policy statement for the project as provided by section 259.035, F.S., consistent with the purposes for which the lands are acquired." The management policy statement for this project was included in the 1999 CARL Annual Report adopted by the Board of Trustees on February 9, 1999. This statement did not take into account that the Florida Fish and Wildlife Conservation Commission (FWCC) and the DOF were the proposed managers for portions of the project. Because the FWCC and the DOF manage lands under the multiple-use concept, staff recommends that the Board of Trustees confirm the revised management policy statement:

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 1-47)

RECOMMEND APPROVAL

DEFERRED FROM THE SEPTEMBER 14, 1999 AGENDA

REQUEST: Consideration of (1) an option agreement to acquire 39.38 acres within the Indian River Lagoon Blueway CARL project from Brevard County; (2) designation of Brevard County as managing agency for this site; and (3) confirmation of the management policy statement.

COUNTY: Brevard

LOCATION: Sections 14 and 15, Township 29 South, Range 38 East

CONSIDERATION:  $900,000 (Board of Trustees’ share of County’s purchase price)

STAFF REMARKS: The Indian River Lagoon Blueway CARL project is ranked number 14 on the CARL Bargain/Shared Project List approved by the Board of Trustees on February 9, 1999, and is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition Workplan. The project contains 5,136 acres, of which 900 acres have been acquired by the St. Johns River Water Management District and Brevard County. These are the first to be acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 4,196.62 acres or 82 percent of the project will remain to be acquired.

Pursuant to a multi-party agreement entered into between the DSL and Brevard County (County) on April 26, 1993, for the Maritime Hammock CARL project, the County purchased the property on December 29, 1997, from Jose Valle, Mark Axelberd and Enrique Hutterli, Curator for $1,800,000. This parcel has subsequently been designated by the Land Acquisition and Management Advisory Council (LAMAC) to become part of the Indian River Lagoon Blueway CARL project. If this item is approved, the Board of Trustees will reimburse the County for the lesser of 50 percent of the approved value or 50 percent of the purchase price paid by the County. In no event will the Board of Trustees’ purchase price exceed 50 percent of the approved value.

Brevard County is one of many counties that have contributed funds for the purchase of parcels under the CARL Bargain/Shared category. The Board of Trustees’ policy has been not to allow local governments to hold joint title on bargain purchases. At the urging of a few counties, on November 12, 1998, LAMAC was asked to look at the issue of shared title. At the direction of LAMAC, staff has held two public workshops, as well as various staff meetings, to evaluate the shared title issue. On September 2, 1999, a White Paper on the subject of shared title was approved by LAMAC. The White Paper is anticipated to be on a Board of Trustees' agenda in November. In anticipation that the Board of Trustees' policy on joint title might change, Brevard County has requested that language be included in all contracts that would allow the issue of shared title to be reconsidered. The contract provision provides no assurance that shared title will be approved and the provision does not survive closing. Further, the County cannot extend the closing for the purpose of awaiting the decision on joint title.

All mortgages and liens will be satisfied at the time of closing.  In the event the commitment or 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 DSL will provide a survey prior to closing. The County will provide the title insurance policy and an environmental site assessment, completed to DSL standards. The County and the Board of Trustees shall each be responsible for 50 percent of the costs associated with the title work, title insurance and updating the environmental site assessment (Reimbursed Costs). In the event a parcel does not close, the County shall reimburse the DSL 50 percent of any Reimbursed Costs associated with the parcel.

Public acquisition would help preserve and improve the aquatic natural communities of the Indian River Lagoon, one of the country’s most productive, diverse, and commercially and recreationally important estuaries. A third of the country’s manatee population lives in the Indian River, and the area is important for many migratory birds as well as for oceanic and estuarine fishes. Additionally, public acquisition would provide natural resource-based recreation in a developing area of Florida.

Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate the County as the managing agency for this site. It will be managed as a sanctuary under the Parks and Recreation Department’s Environmentally Endangered Lands program.

Section 259.032(9)(b)2., F.S., requires that the Board of Trustees, concurrent with its approval of the initial acquisition agreement within a project, "evaluate and amend, as appropriate, the management policy statement for the project as provided by section 259.035, F.S., consistent with the purposes for which the lands are acquired." The management policy statement for this project was included in the 1999 CARL Annual Report adopted by the Board of Trustees on February 9, 1999. Staff recommends that the Board of Trustees confirm the management policy statement as written:

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 1, Pages 1-28, submitted with the September 14, 1999 agenda)

RECOMMEND APPROVAL

REQUEST: Consideration of (1) authorization to enter into an acquisition agreement with the St. Johns River Water Management District for the Julington/Durbin Creeks CARL project; (2) authorization to acquire a 75 percent interest in 2,058 acres within the Julington/Durbin Creeks CARL project from Bartram Park, Ltd.; (3) approval of a restrictive covenant limiting the use of the property to a public park or natural preserve; (4) designation of the St. Johns River Water Management District and the City of Jacksonville as co-managing agencies for this site; and (5) confirmation of the management policy statement.

COUNTIES: Duval and St. Johns

LOCATION: Sections 21 through 28, 35 and 36, Township 04 South, Range 27 East; Sections 30 and 31, Township 04 South, Range 28 East; and Section 06, Township 05 South, Range 28 East

Board of Trustees

Agenda – September 28, 1999 Page Thirteen

CONSIDERATION: $8,532,025 (Board of Trustees’ 50 percent share of the purchase price)

STAFF REMARKS: The Julington/Durbin Creeks CARL project will be ranked number 15 on the CARL Bargain/Shared List if approved by the Board of Trustees today, and will be funded under the Division of State Lands’ Land Acquisition Workplan. The project contains 3,900 acres, of which these are the first to be acquired. After the Board of Trustees approves this agreement, 1,842 acres or 47 percent of the project will remain to be acquired.

To facilitate the acquisition of this project, the St. Johns River Water Management District (District) has taken the lead in the acquisition of this joint project. Department of Environmental Protection (DEP) staff has prepared an agreement that would allow the District to acquire the Julington/Durbin Creeks CARL project in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S. On September 13, 1994, the Board of Trustees approved the use of the District's procedures to allow the District to acquire lands to be held jointly by the Board of Trustees and the District.

The Governing Board of the District adopted Resolution No. 99-28 on August 11, 1999, and has executed the acquisition agreement. Upon Board of Trustees approval, DEP staff will execute the agreement on behalf of the Board of Trustees.

Incorporated into the agreement are a number of assurances that the District is giving the Board of Trustees in return for its consideration of this agreement. The District has agreed to: (1) comply with the procedures set out in section 373.139, F.S.; (2) defend the Board of Trustees against all title and survey disputes or defects and environmental contamination associated with each acquisition negotiated by the District that were either known or should have been known by the District at the time the District acquired the parcel; and (3) reimburse the Board of Trustees 50 percent of any overpayment of the purchase price if an audit or investigation determines that the purchase price paid exceeded the actual appraised value.

Pursuant to the proposed agreement, District staff has obtained and reviewed appraisals, negotiated a purchase contract with Bartram Park, Ltd., and secured the approval of its Governing Board. Bartram Park, Ltd., acquired 4,500 acres, of which these 2,058 acres are a part, for approximately $40,000,000. The District has provided DEP’s Division of State Lands with a board resolution requesting reimbursement of the Board of Trustees' 50 percent share of the purchase price. The City of Jacksonville is contributing 25 percent of the purchase price and the closing costs. DEP staff is seeking approval for the Board of Trustees' share of the purchase price for the Bartram Park, LTD., parcel the District contracted to purchase at 82 percent of appraised value. In addition, the agreement provides for the District to 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, with the pre-acquisition costs and certain closing costs being reimbursed even if the District is unsuccessful in acquiring any property. The agreement authorizes DEP staff to reimburse these costs from CARL incidental expense funds. If the Board of Trustees approves this purchase, the District will proceed to closing with title to be vested jointly, with the District holding an undivided 25 percent interest and the Board of Trustees holding an undivided 75 percent interest.

There is a provision in the option agreement requiring that the property be used as a public park or natural preserve. The requirement would be in the form of a deed restriction that would run with and bind the property into perpetuity. There are a number of additional restrictions related to the management of the property that would not affect the Board of Trustees ownership.

The contract further provides for a letter assuring that funding is approved and available. Under the terms of the agreement, failure of the state to deliver funds for closing would allow the seller to sue for specific performance.

On the southeast side of Jacksonville the land between Julington and Durbin Creeks has so far escaped development. The Julington/Durbin Creeks CARL project will conserve the sandhills, flatwoods, and swamps of this land, helping ensure the survival of plants such as the rare Bartram’s ixia and animals like the swallowtailed kite; maintaining the water quality of the creeks; and giving the public of this growing urban area a place for recreation in a scenic natural setting.

Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate the District and the City of Jacksonville as the co-managing agencies for this site. It will be managed as a county and city park where the public may hike, canoe, fish and camp.

Section 259.032(9)(b)2., F.S., requires that the Board of Trustees, concurrent with its approval of the initial acquisition agreement within a project, "evaluate and amend, as appropriate, the management policy statement for the project as provided by section 259.035, F.S., consistent with the purposes for which the lands are acquired." The management policy statement for this project will be considered by the Board of Trustees today. Staff recommends that the Board of Trustees confirm the management policy statement as written.

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 9, Pages 1-62)

RECOMMEND APPROVAL

REQUEST: Consideration of (1) an acquisition agreement to acquire 76.69 acres within the South Savannas CARL project and 188.59 acres within the Coupon Bight/Key Deer CARL project from the South Florida Water Management District (District); and (2) a waiver of section 259.041(11), F.S., in order to accept a deed pursuant to section 373.099, F.S.

COUNTIES: Martin and Monroe

LOCATION: Section 21, Township 37 South, Range 41 East; and Sections 22 and 23, Township 66 South, Range 29 East

CONSIDERATION: $4,081,600 ($2,100,000 for the South Savannas parcel and $1,981,600 for the Coupon Bight/Key Deer parcels)

STAFF REMARKS: The South Savannas CARL project is ranked number 7 on the CARL Substantially Complete Project List approved by the Board of Trustees on February 9, 1999, and is eligible for negotiation under the Division of State Lands’ (DSL) Land Acquisition Workplan. The project contains 6,046 acres, of which 4,968 acres have been acquired or are under agreement to be acquired, leaving 1,078 acres or 18 percent to be acquired. The parcel being acquired is already in public ownership.

The Coupon Bight/Key Deer CARL project is ranked number 2 on the CARL Mega/Multiparcel Project List approved by the Board of Trustees on February 9, 1999, and is eligible for negotiation under the DSL’s Land Acquisition Workplan.  This project contains 3,452 acres, of which 825 acres have been acquired or are under agreement to be acquired, leaving 2,627 acres or 76 percent to be acquired. The parcels being acquired are already in public ownership.

The Board of Trustees is the majority public landowner within these projects. These acquisitions will consolidate the Board of Trustees’ ownership within the project boundaries and will improve the overall management of the sites.

The District acquired the South Savannas parcel on December 17, 1990, and the Coupon Bight/Key Deer parcels between February 2, 1990, and May 23, 1991. The parcels were acquired using District procedures that were subsequently approved by the Board of Trustees on June 15, 1995, to allow the District to acquire lands to be held by the Board of Trustees. The District has certified that the total amount of the Board of Trustees’ purchase price is equal to the sum of the purchase prices or appraised values, whichever is less, paid by the District in the District’s acquisition of the properties. The District is also willing to hold the Board of Trustees' harmless and defend the Board of Trustees in all matters pertaining to all title and/or survey disputes and/or defects and environmental contamination associated with any parcel acquired by the District which were either known or should reasonably have been known by the District at the time the District acquired the parcel.

The Governing Board of the District adopted Resolution No. 99-96 on September 9, 1999, approving the acquisition agreement and requesting payment of the purchase price by the Board of Trustees for the fee simple interest in the parcels. Under the terms of the acquisition agreement, the Board of Trustees agrees to pay 100 percent of the District’s share of the purchase price for the parcels in each project.

To facilitate the transfer of title from the District to the Board of Trustees, staff recommends that pursuant to section 259.041(11), F.S., the Board of Trustees waive the requirement for at least a special warranty deed and accept a fee simple deed which is provided for in section 373.099, F.S.

If the Board of Trustees approves this agreement, DSL staff will work with the District to obtain any required updates and/or recertifications of title commitments, surveys or environmental site assessments obtained by the District in the initial transaction. The DSL shall pay all costs associated with the updates and/or recertifications.

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. The South Savannas CARL 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.

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

The Coupon Bight/Key deer parcels will be managed by the U.S. Fish and Wildlife Service as part of the Key Deer National Wildlife Refuge. The South Savannas site will be managed by the Division of Recreation and Parks as part of the Savannas State 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 10, Pages 1-14)

RECOMMEND APPROVAL

REQUEST: Consideration of information and discussion concerning the reclamation of lands lost as a result of artificial erosion.

LOCATION: Statewide

APPLICANT: Department of Environmental Protection, Division of State Lands

STAFF REMARKS: At the September 14, 1999 meeting of the Board of Trustees of the Internal Improvement Trust Fund, there was discussion relating to section 18-21.019(5), F.A.C., which authorizes a riparian or littoral landowner to purchase (or reclaim) from the Board of Trustees lands formally owned by the landowner, which have been lost due to artificial erosion. The consideration for such purchase is the tax-assessed value of said lands. The Board of Trustees requested that the Department of Environmental Protection prepare an overview of these issues for consideration at its next meeting.

The boundary that separates public from private ownership of riparian or littoral land is either the ordinary high water line on non-tidal water bodies (riparian) or the mean high water line on tidally affected water bodies (littoral). This is an ambulatory boundary that may change over time in response to erosion (the slow and imperceptible loss or washing away of land) or accretion (the slow and imperceptible addition of land). A riparian or littoral property owner is legally entitled to any additions that accrete to his property. Conversely, a riparian or littoral landowner loses title to any land that erodes from his property. Unlike erosion and accretion, however, avulsion is the sudden and perceptible loss of or addition to land by the action of water. Avulsion does not result in a change in ownership.

Determination of title to said lands is within the exclusive jurisdiction of the circuit court (for the area in which the property lies), pursuant to section 26.012(2)(g), F.S. However, section 18-21.019(5), F.A.C., provides a mechanism for riparian or littoral landowners to "reclaim" title to lands lost due to artificial erosion and avulsion (defined by section 18-21.003(6), F.A.C.). In the event of avulsion, under section 18-21.019(4), F.A.C., the landowner can obtain a disclaimer for up to one acre of the land they have lost. In this case, the landowner would not have to pay for the reclaimed lands since it is legally still theirs. All other claims must be made and decided in circuit court.

If the landowner cannot prove that the land was lost through a sudden and perceptible action (avulsion) and could show that the adjoining parcels were bulkheaded, which suggests either a loss of lands due to artificial erosion or possibly a combination of artificial erosion and (unproved) avulsion. In such case, the landowner could apply to obtain a quitclaim deed from the Board of Trustees. In this case, the landowner is required to pay for the land since they could not prove an avulsive event caused his loss. The applicant is not required to go to the expense of obtaining an appraisal but is allowed to purchase the land at the tax assessed value, which is normally less than the current fair market value. If a landowner does not wish to reclaim such lands under the rule, they always have a remedy in circuit court. The purpose of these sections of the rule is to provide an efficient mechanism for a landowner to clear their title or reclaim their land without going to court. In this way, many minor title issues are resolved, and both the Board of Trustees and the landowner are saved the expense of a lawsuit.

As requested, a table is attached showing the applications for purchase of lands lost due to artificial erosion for the past several years.

(See Attachment 11, Pages 1-8)

RECOMMEND DISCUSSION

REQUEST: Consideration of a report on the acquisition status of the Brickell Point Limited property located within the Tequesta Circle CARL project.

COUNTY: Miami-Dade

LOCATION: Section 38, Township 54 South, Range 42 East

STAFF REMARKS: On March 9, 1999, the Board of Trustees approved the Miami Tequesta Circle Emergency Archaeological Acquisition with the caveat that if the Land Acquisition and Management Advisory Council (LAMAC) approved the addition of the Tequesta Site to the CARL Priority List, the state will pay up to the state’s appraised value or up to 50 percent of the purchase price, whichever is less. On March 25, 1999, the Board of Trustees approved LAMAC’s May 6, 1999, addition of the Tequesta Site to the CARL Bargain/Shared Project List.

The following is a summary of the various appraisals prepared for the Brickell Point Limited property:

Liquid Damages for

Appraiser Appraised For Market Value Full Compensation Total

Quinlavin State $14,750,000 $14,750,000

Johnston State $15,000,000 $15,000,000

Johnston Miami-Dade $15,000,000 $ 1,400,000 $16,400,000

Gallaher Miami-Dade $17,000,000 $ 1,380,000 $18,380,000

Cantrell Brickell Point Ltd $38,330,000 $38,330,000

Diskin Brickell Point Ltd. $41,790,000 $ 1,380,000 $43,170,000

At the present time, the property is subject to litigation between Miami-Dade County (County) and Brickell Point Limited. Based on information from the County, attorneys for both parties are conducting discovery and preparing for trial, which is scheduled for October 4, 1999. All other matters pertaining to the County’s potential acquisition of this property are confidential under the Florida Rules of Civil Procedure.

Pursuant to section 259.04(1)(c), F.S., within 45 days of receiving LAMAC's list of CARL projects, the Board of Trustees shall approve the list in whole or in part. The Second 1999 Interim CARL Priority List is being submitted on this agenda. In the event the County is unable to provide the necessary funds for its share of the acquisition or the legally determined value of the property outweighs its archaeological significance, then the Board of Trustees could recommend that this project be removed from the CARL Priority List when it is considered.

(See Attachment 12, Pages 1-4)

RECOMMEND ACCEPTANCE

REQUEST: Consideration of a procedure for the Division of State Lands to implement a quick response acquisition process for bankruptcy hearings, auctions and forced sales.

LOCATION: Statewide

STAFF REMARKS: At the August 28, 1999 Cabinet Meeting, the Board of Trustees directed the Department of Environmental Protection (DEP) to develop a quick response acquisition process for its review and approval. At the September 14, 1999 Cabinet Meeting, Secretary Struhs committed to have a proposal for a quick response acquisition process at the September 28, 1999 Cabinet Meeting. This proposed process would allow the Division of State Lands (DSL) to act in an entrepreneurial fashion in order to take advantage of bankruptcy hearings, auctions and forced sales.

Ideally, DEP will strive to acquire all due diligence products such as an appraisal, evidence of marketable title, survey or boundary evidence report and an environmental site assessment. However, given the short timeframe associated with these types of purchases, waivers are necessary in case those products or lessor products cannot be produced in time. To take advantage of these types of acquisitions which usually have a 30-day or less timeframe from notification to bidding and purchase, the Board of Trustees will have to waive certain Chapter 259 F.S. requirements and acquisition procedures.

Section 259.041(1), F.S., allows the Board of Trustees to substitute other prudent procedures provided the public’s interest is reasonably protected. In addition, certain DEP acquisition requirements must be waived or modified. DEP believes that the substitution of the procedure for quick response acquisition attached as Exhibit "A" for the current acquisition requirements would reasonably protect the public’s interest and provide potential public dollar savings. In order to implement a quick response acquisition process to take advantage of bankruptcy hearings, auctions and forced sales, DEP requests that the Board of Trustees waive the requirements for appraisal and marketability and substitute the Exhibit "A" procedures for the following requirements:

Board of Trustees

Agenda – September 28, 1999 Additional Page Nineteen

1. a fee appraisal and review appraisal [section 259.041(7)(b)]
2. an environmental site observation or a level 1 environmental site assessment
3. a survey or boundary evidence report
4. evidence of marketable title [section 259.041(6)]
5. disclosure of beneficial interests [section 259.041(9)(a)]

In addition to the foregoing the Board of Trustees must authorize the amendment of any project boundary to include lands that may need to be purchased as part of a bankruptcy hearing, auction and forced sale, but are outside the project boundary.

If the Board of Trustees provides the recommended waivers and substitutions, then as soon as DSL is aware of an opportunity, a quick assessment of the available time frame will be made. Based on that timing, DSL will secure, to the greatest degree possible, the items required under the normal acquisition process. For those items DSL cannot complete in time to participate in auctions or bids, substitutes, if practicable, will be used to ensure that the Board of Trustees’ interests are protected. If issues arise that DSL is either unable to quickly resolve or would indicate the purchase is not in the state’s interest, DSL will terminate the acquisition initiative.

In accordance with section 259.041(3), F.A.C., the DEP requests a delegation for any quick response acquisition except where;

1. The purchase price agreed to by seller exceeds the value as established pursuant to the rules of the Board of Trustees.
2. The acquisition is the initial purchase in a project. (This means that no bankruptcy hearings, auctions or distress sales can take place unless an initial purchase using normal acquisition procedures has been completed).

Without these above cited waivers, substitutions and a delegation to DEP for approval of these bankruptcy hearings, auctions or forced sales, DEP will not be able to respond within the short time frames that are normally associated with these types of sales. DEP also proposes that this quick response acquisition process apply to Preservation 2000 and Florida Forever.

Attached is a procedure which outlines the process DEP proposes to use to take advantage of these distress or opportunity sales.

(See Attachment 13, Page 1)

RECOMMEND APPROVAL