NOVEMBER 9, 1999

Submittal of the Minutes of the September 28, 1999 Cabinet Meeting.

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.

LOCATION: Statewide

APPLICANT: Department of Environmental Protection (DEP)

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.

REQUEST: Consideration of an application for (1) a modification of an existing five-year sovereignty submerged lands lease to increase the preempted area from 26,116 square feet to 209,212 square feet, more or less, for an existing commercial docking facility; and (2) a waiver of the survey requirement.

COUNTY: Lee

Lease No. 360009925

APPLICANT: SunTrust Bank, Southwest Florida, a Florida corporation, as Trustee

(d/b/a Orange Harbor Mobile Home Park)

LOCATION: Sections 34 and 35, Township 43 South, Range 25 East, in the Caloosahatchee River and the Orange River, Class III waters

Aquatic Preserve: No

Manatee Area idle/slow speed/caution zone: Yes

Outstanding Florida Waters: No

CONSIDERATION: $29,476.38 as the initial lease fee computed at the base rate of $0.1156 per square foot, and including the initial 25 percent surcharge payment for the additional area. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. If the staff recommendation regarding the survey and legal description is approved, fees will be verified upon receipt of an acceptable survey.

STAFF REMARKS: The lessee is proposing to modify an existing 42-slip commercial docking facility by: (1) increasing the preempted area from 26,116 square feet to 209,212 square feet; and (2) increasing the number of wet slips from 42 to 75.

On July 18, 1978, the Board of Trustees approved a sovereignty submerged lands lease containing 2,841 square feet, more or less, to construct and operate a commercial docking facility for the upland mobile home park. The lessee rents mobile home lots to residents; therefore, the mobile home park is a revenue generating/income related activity pursuant to section 18-21.003(44), F.A.C. The rule also states that any activity (such as a docking facility) on sovereignty lands which serves as an accessory to an upland revenue generating activity is also considered to be a revenue generating/income related activity. Therefore, use of the submerged land requires a lease pursuant to section 18-21.005(1)(b)2, F.A.C. Although the lessee does not charge the mobile home residents a fee to use the docks adjacent to their mobile homes, the lot rent is higher for waterfront lots than non-waterfront lots.

Under a delegation of authority (DOA), the lease was renewed and modified by the former Department of Natural Resources (DNR) on August 29, 1988, to include in the lease unregistered grandfathered structures consisting of five finger piers and a marginal dock and boat ramp, increasing the lease area to 6,960 square feet. Although these structures are located near those authorized in the original lease, they were not included in the original survey or lease. There is no record of any site inspection being performed at this facility between 1978 and 1988.

From 1978 until 1994, individual Orange Harbor Mobile Home Park (Park) residents applied for and obtained regulatory exemptions from the Department of Environmental Regulation and proprietary consent of use letters from DNR and the Department of Environmental Protection (DEP) for "single-family" type docks. Although a lease would have been required pursuant to section 18-21.005(1)(b)2, F.A.C., another rule section, 18-21.005(1)(a), F.A.C., states that docks that are exempt from regulatory permitting are exempted from any requirement to make application for consent of use, and such consent is granted by the Board of Trustees. In the applications from Park residents, it was indicated that they were the riparian upland owners, and there were no clear indications of the rental nature of the mobile home park. Therefore, the applications were reviewed as if the structures were private, single-family docks associated with single-family lots, when in fact the uplands were owned by SunTrust Bank and constituted a revenue generating/income related activity pursuant to the rule. SunTrust Bank has indicated to DEP staff that responsibility for construction and maintenance of the individual docks was left to each waterfront resident.

In 1994, a Park resident submitted an application for a boat lift at the dock located adjacent to his mobile home. The application revealed that he was not the upland owner, that in fact SunTrust Bank owned the lots. DEP staff’s subsequent research of property records revealed that the mobile home park was owned entirely by SunTrust Bank, without any individually-owned lots. DEP staff performed a complete shoreline inventory and contacted SunTrust Bank, informing them that the lease must be modified to include all of the structures on sovereignty submerged lands adjacent to the park. SunTrust Bank willingly complied with the requirement to modify the lease accordingly.

Under a DOA, the lease was modified by DEP on June 5, 1995, to: (1) eliminate from the lease a marginal dock and four finger piers (six wet slips preempting 3,276 square feet) that were deteriorating and no longer needed by the Park because of lack of user demand; and (2) include in the lease all of the other structures built by the individual lot renters. These structures consisted of 31 fishing piers and 28 docks. This modification increased the lease area to 23,171 square feet. Lease fees in arrears for these structures were paid by the lessee. Interest on the lease fees in arrears was not assessed because of the past authorizations issued.

The lease was again modified by DEP under a DOA on January 21, 1998, to convert five of the fishing piers to docks, increasing the lease area to 26,116 square feet. The modified lease now accurately reflects all existing structures.

The overall facility currently consists of a four-slip docking facility and boat ramp at one of the mobile home park’s common areas, two fishing piers adjacent to two other common areas, and numerous individual docks and fishing piers, each adjacent to individual mobile home lots. All of these existing structures are within the existing lease. The lessee’s proposed lease modification will: (1) convert 21 existing fishing piers to docks adjacent to individual mobile home lots by allowing mooring at the structures; (2) authorize some of the existing docks to be reconfigured or expanded; (3) authorize construction of new docks; and (4) include the area of sovereignty submerged lands between each structure consistent with sections 18-21.003(38) and 18-21.004(1)(c), F.A.C. The modified lease will provide a total of 75 wet slips for exclusive use of mobile home park residents. The boat ramp and remaining fishing piers will also remain for the exclusive use of mobile home park residents.

As a commercial operation, the lessee is responsible for paying the annual lease fee, but is allowed by chapter 723, F.S., the Florida Mobile Home Act, to choose to pass on the annual lease fee to the waterfront lot renters. Most of the mobile home park residents are retirees, many on fixed incomes. There is a continual turnover of park residents, and new waterfront lot renters often desire to change the configuration of the dock or fishing pier adjacent to their respective lots. They also want to minimize the annual lease fee by designing each dock’s lease area to be as small as possible. This has resulted in continuous lease modifications to change the preempted area to accommodate new or relocated boat slips or larger vessels at various individual structures. Therefore, future requests for additional lease modifications were anticipated to occur frequently throughout the term of the modified lease.

Minimizing the lease area raises three concerns. First, the previous frequent lease modifications required significant staff time; future lease modifications would also require Board of Trustees’ reviews. Second, it has not adequately included all of the preempted area in the lease as required by sections 18-21.003(38) and 18-21.004(1)(c), F.A.C. Because many of the docks are located close together, the area between the docks that is currently excluded from the lease is also realistically preempted from traditional public uses. However, the Board of Trustees and DEP typically require such areas to be included in sovereignty submerged lands leases. Therefore, continuing to allow these areas to be excluded from the lease raises a third concern: inconsistency with other Board of Trustees and DEP authorizations. To address these concerns, the applicant has agreed to modify the lease to include the areas between those docks whose proximity to one another effectively preempts public use. Staff and the lessee estimate that this will add approximately 168,290 square feet to the lease area, resulting in an additional annual lease fee of $19,454.32. Because of this lease fee increase, the Park residents do not agree with including the additional preempted area in the lease.

Staff has considered whether a net environmental benefit would result from replacing the existing docks, adjacent to individual mobile homes, with one or more multi-slip docking facilities. However, this alternative would concentrate pollutants, raise potential navigation concerns, and result in an extensive and costly permitting process for SunTrust Bank that would ultimately be passed onto the Park’s waterfront residents. Therefore, staff does not recommend this alternative.

Section 18-21.008(1)(a)4, F.A.C., requires a survey and legal description to be submitted with all lease applications. Pursuant to Board of Trustees’ action on May 14, 1991, the Board of Trustees authorized a waiver of the survey requirement in the following situations: (1) when unregistered grandfathered structures are brought under lease (regardless of total square footage of sovereignty submerged lands preempted); and (2) when existing or proposed facilities are brought under lease that preempt less than 3,000 square feet.

A survey was required for the original lease and the 1988 lease modification because those actions occurred prior to creation of the survey waiver. When the remaining unauthorized unregistered grandfathered structures were brought under lease in 1995, a survey was not required because staff interpreted the survey waiver to apply to unauthorized unregistered grandfathered structures. Unauthorized unregistered grandfathered structures are those where a lease is the appropriate authorization for the use of sovereignty submerged lands, and the riparian upland owner did not apply for the lease by April 1, 1991.

The currently proposed lease modification includes construction of new structures (docks and boat lifts). These structures do not qualify for a waiver of the survey requirement because: (1) they are new structures (not unregistered grandfathered); and (2) while they are less than 3,000 square feet, the overall leased facility exceeds 3,000 square feet. However, the lessee has requested a waiver of the survey requirement because of the anticipated expense of the survey. Although the lessee is responsible for incurring the expense of the survey, the lessee may choose to pass this expense on to the park residents pursuant to chapter 723, F.S., the Florida Mobile Home Act. The expense associated with surveys was considered by the Board of Trustees when the survey waiver was approved in 1991. To avoid the expense and delay associated with preparation of a survey for the currently proposed lease modification, DEP required the applicant to submit a sketch and description consistent with the survey waiver requirements. A special approval condition has been included requiring submission of an acceptable survey and legal description.

An October 19, 1998, inspection showed that the applicant is in compliance with the existing lease. All fees are current through July 1999.

The DEP issued a letter to the lessee, dated October 20, 1998, stating that the proposed additional docks and boat lifts were exempt from regulatory permitting requirements.

The modified lease request was not required to be noticed because of an exemption for lease modifications pursuant to section 253.115(5)(i), F.S. However, DEP received 23 letters from Park residents expressing the following concerns: (1) the lease modification process entailed significant delays preventing them from building/modifying their docks; (2) because they own the individual structures adjacent to their mobile homes, the structures are not commercial and therefore should not be subject to the lease requirement; and (3) because of item (2), they should not have to pay lease fees. DEP sent each of these 23 residents a letter responding to these concerns. DEP also provided a follow-up letter including a preliminary draft agenda item for their review. That agenda item was also provided to State Representative Bruce Kyle’s office and the Park management to be posted in the Park for review by all Park residents.

On March 18, 1999, DEP held a three-hour public meeting with the lessee, an aide to Representative Kyle, and over 200 park residents. The residents asked numerous questions about authorizations to use sovereignty submerged land. Two options for the lessee were identified at the meeting: (1) pursue the lease modification discussed in this agenda item; or (2) await the findings of a DEP sufficient title interest working group to determine whether the individual structures could be authorized by a consent of use instead of a lease. Option (1) would allow the park residents to modify their structures in the near future, after the modified lease is issued. Option (2) would prohibit modification of the leased structures until the sufficient title interest working group findings are completed, which could entail significant time delays because of potential rulemaking. By the end of the meeting, it appeared that the lessee and the residents looked favorably on option (1), and many of the residents stated that they had a much better understanding of the costs and benefits of modifying the submerged land lease to include additional preempted area. Subsequently, DEP requested and received the lessee’s written intent to pursue option (1).

Recommendations from the DEP’s Division of Marine Resources regarding manatee protection include requiring the lessee to: (1) comply with the standard manatee protection construction conditions for all in-water construction; (2) install and maintain manatee informational displays; and (3) restrict use of the boat ramp to mobile home park residents. Items (1) and (3) will be addressed in the lease as special lease conditions. Item (2) is addressed by a special lease condition in the existing lease requiring the lessee to maintain the existing manatee informational displays throughout the term of the modified lease and any subsequent renewals.

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

REQUEST: Consideration of an application for (1) a modification of an existing five-year sovereignty submerged lands lease to contain 318,232 square feet, more or less, for the proposed expansion of an existing commercial docking facility in conjunction with the proposed upland mixed-use development; (2) after-the-fact authorization for an existing unauthorized fishing pier extension; (3) authorization for the severance of 32,000 cubic yards of sovereign material; and (4) a waiver of the severance fee.

COUNTY: Charlotte

Lease No. 080000095

APPLICANT: City of Punta Gorda

LOCATION: Section 06, Township 41 South, Range 23 East, adjacent to the Peace River and immediately upstream of Charlotte Harbor, Class III waters, within the local jurisdiction of the City of Punta Gorda

Aquatic Preserve: No

Manatee Area idle/slow speed/caution zone: Yes

Outstanding Florida Waters: No

CONSIDERATION: $21,467.82, representing (1) $16,448.26 as the initial lease fee for the 120,095-square-foot boat slip area computed at the base rate of $0.1156 per square foot and including the 25 percent surcharge for the additional lease area subject to lease fees; (2) $139.56 as lease fees in arrears, including interest, for the unauthorized use of sovereignty submerged land from May 1, 1995, through September 9, 1997; and (3) $4,880 as administrative fines for the unauthorized use of sovereignty submerged land. The lease fees in arrears and administrative fines have already been collected. The project qualifies for waiver of the severance fee pursuant to section 18-21.011(3)(c), F.A.C. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fee may be adjusted based on six percent of the annual rental value pursuant to section 18-21.011, F.A.C.

STAFF REMARKS: The lessee is proposing to expand an existing 20-slip commercial docking facility by constructing 60 additional boat slips, thereby creating an 80-slip facility. The original sovereignty submerged lands lease was approved by the Board of Trustees on September 23, 1986, for 20 boat slips and the preemption of 272,320 square feet. The lease was renewed by the Department of Natural Resources in 1991 and by the Department of Environmental Protection (DEP) in 1996, pursuant to a delegation of authority.

On June 15, 1995, the Board of Trustees granted conceptual approval to add 80 boat slips and increase the preempted area to 274,320 square feet. The lessee was required to return to the Board of Trustees for final approval. The conceptual approval was granted because the application was incomplete, as it lacked an approved Development of Regional Impact (DRI) and an acceptable survey and legal description. The lessee has since provided a copy of a March 18, 1997 letter from the Department of Community Affairs (DCA) stating it would not appeal the Development Order for the Punta Gorda Harbor Development of Regional Impact (no. 97-013). The lessee has also provided a survey and legal description.

The existing lease preempts 272,320 square feet of sovereignty submerged lands. It includes a 20-slip commercial docking facility preempting 31,331 square feet, a 400-foot-long public fishing pier operated by the lessee at no charge to the public and preempting 4,800 square feet, and a 236,189-square-foot open water area adjacent to the existing docking facility. Pursuant to the 1986 Board of Trustees’ action, lease fees are currently assessed against only 31,331 square feet of the lease area where there are existing boat slips being rented by the lessee. The

remaining 240,989 square feet is not subject to lease fees. This open water area was included in the lease in 1986 to give the lessee authority to prevent a growing and dangerous mid-water mooring problem within the marina basin at that time.

In addition to the existing structures, the modified lease will authorize: two 6-foot-wide by 250-foot-long access walkways extending from the existing T-dock, with a total of thirty 4-foot-wide by 30-foot-long finger piers; an existing unauthorized 12-foot-wide by 121-foot-long extension to the fishing pier, and a proposed 12-foot-wide by 40-foot-long terminal platform with benches, lights and a new fish cleaning station; and a 100-foot-wide by 500-foot-long navigational access channel. The 121-foot-long fishing pier extension was recently constructed by the lessee based on the regulatory authorization granted by the wetland resource permit (no. 082032119) issued by the Department of Environmental Regulation (DER) on January 13, 1993. That did not include authorization from the Board of Trustees. Therefore, pursuant to the Board of Trustees’ administrative fine policy of August 14, 1992, an administrative fine in the amount of $3,630 was assessed and collected by DEP.

Between May 1995 and September 1997, the lessee allowed a local river cruise boat operator to moor his commercial vessel adjacent to the existing "T" dock. Mooring of the cruise boat was discontinued in September 1997. The "T" dock is within the area for which lease fees are not assessed. Since mooring of that vessel constituted a revenue generating/income related activity pursuant to section 18-21.003(44), F.A.C., the lessee should have been paying lease fees on that area during that time. Therefore, lease fees in arrears, including interest, in the amount of $139.56 were assessed and collected by DEP. That unauthorized mooring also constituted a violation of the lease. Therefore, an administrative fine in the amount of $1,250 was assessed and collected by DEP.

The applicant is also proposing to dredge 32,000 cubic yards of sovereign material to create a consistent depth of -7 feet NGVD within the marina basin. Pursuant to section 18-21.011(3)(c), F.A.C., a waiver of the dredge fees may be granted if the materials are placed on public property and used for public purposes, or if the dredged material has no economic value. The spoil will be temporarily placed in an upland spoil site and will ultimately be relocated to upland areas of the lessee’s Nature Park or the newly established History Park. Any material not suitable for fill at these sites will be transported to a landfill owned by Charlotte County. Therefore, the applicant qualifies for the waiver of the severance fee.

A portion of the permitted dredge area lies within the nearshore area landward of the proposed docking facility expansion pursuant to the modified DEP wetland resource permit. Section 18-21.004(2)(a), F.A.C., states that sovereignty lands shall be managed primarily for the maintenance of essentially natural conditions. Section 18-21.004(2)(g), F.A.C., states that severance of materials from sovereignty lands shall be approved only if the proposed dredging is the minimum amount necessary to accomplish the stated purpose and is designed to minimize the need for maintenance dredging. Since there will be no navigation in this nearshore area, it does not need to be dredged, and dredging this area would exceed the minimum amount necessary to provide sufficient depths for vessels to be moored at the docking facility. Therefore, staff recommends that approximately 28,474 cubic yards of sovereign material be dredged. A special lease condition has been included to prohibit dredging in the nearshore area.

Lease fees are recommended to be assessed on 120,095 square feet of lease area preempted by the existing and proposed revenue-generating docking facility. Lease fees are not recommended to be assessed for the fishing pier because the pier is open to the public at no charge. Pursuant to Board of Trustees' action on August 9, 1988 (Patten), the form of consent for the navigation channel would typically be an easement. However, DEP is of the opinion that because the lessee has determined the project to be a public project, no fee would be assessed for the channel. Therefore, rather than creating a separate easement instrument for which no fee is obtained, DEP recommends that the channel be included in the lease area and that no fee be assessed.

As part of a development agreement between the lessee and the upland developer, 30 of the 60 new boat slips are proposed to be exclusively available to purchasers of non-riparian condominium units. Upon the sale of the last non-riparian condominium unit, any of the 30 boat slips not leased to a unit purchaser may be leased to the general public. Such reserved slips could be considered an ownership-oriented facility pursuant to section 18-21.003(36), F.A.C., and would thus be subject to the standards and criteria for such facilities in section 18-21.004(4)(a), F.A.C. The rule would limit the ownership-oriented portion of the docking facility to 23 wet slips. The lessee has acknowledged this requirement, which has been addressed as a special approval condition and a special lease condition similar to those approved by the Board of Trustees on February 12, 1991, and December 12, 1995 (Island Marina, Inc.) for a similar project. Additionally, section 18-21.004(4)(a), F.A.C., for ownership-oriented facilities, requires the lessee to record a conservation easement for approximately 459 linear feet of shoreline. This has been addressed as a special approval condition. Pursuant to section 18-21.011(1)(c)3.f., F.A.C., the one-time premium payment for ownership-oriented facilities is not assessed for this portion of the docking facility, because at least 50 percent of the slips at the overall marina will be open to the public on a first-come, first-served basis.

The riparian upland property consists of a 38-acre public park (Laishley Park) that is being redeveloped by the lessee into a multiple-use redevelopment project known as Punta Gorda Harbor. Current development plans underway include the construction of 60 residential condominium units, 80,000 square feet of retail space, 70,000 square feet of office space, a 6.5-acre park, a 1.1-acre public parking area, an 1,800-foot-long harbor walk and a 10-acre county Justice Center. Pursuant to a development agreement between the lessee and the developer, the lessee will operate the proposed modified marina. The lessee will retain ownership of the entire shoreline within the Punta Gorda Harbor project.

The DER wetland resource permit (no. 082032119), issued on January 13, 1993, authorizes the proposed fueling and sewage pumpout facilities and prohibits liveaboards. At the lessee’s request, the permit was modified by DEP on January 26, 1998, to: (1) extend the expiration date two years to January 13, 2000; (2) reduce the number of new slips from 80 to 60, and realign the docks; (3) delete a proposed batter board breakwater; and (4) keep and repair an existing public boat ramp currently located within an area formerly deeded (in 1947) by the Board of Trustees to the Department of Transportation as right-of-way for the construction of U.S. 41. On August 26, 1998, the permit was modified to increase the fishing pier’s terminal platform.

The lessee is currently not in compliance with the DEP wetland resource permit. The permit violation is because of the lessee’s failure to enter into and record a long term Binding Agreement for some of the special permit conditions. These permit conditions pertain to operation of the overall marina. On August 27, 1999, DEP made the lessee aware of this violation. The lessee is scheduled to execute the Binding Agreement at the October 6, 1999 meeting of the Punta Gorda City Council, with recording to occur shortly thereafter. In light of the lessee’s stated intent to execute and record the Binding Agreement, and because the additional boat slips have not been constructed, permit compliance is being achieved without formal enforcement action. A special approval condition requires the lessee to execute and record the Binding Agreement prior to receipt of a fully executed modified lease.

The DRI application originally included a 245-unit dry storage facility. The lessee has stated to DEP that the dry storage facility is no longer contemplated because of the lessee’s intent to: (1) keep and maintain the existing public boat ramp; and (2) designate 23 slips for use by the condominium unit buyers pursuant to the development agreement between the lessee and the developer. A special lease condition has been included to clarify that construction of a dry storage facility will be considered a modification of the lease, thereby requiring prior Board of Trustees consideration.

Regarding manatee protection, the Florida Fish and Wildlife Conservation Commission, Bureau of Protected Species Management (f/k/a DEP, Division of Marine Resources) recommended on December 12, 1997, that the lessee (a) comply with the standard manatee protection construction conditions for all in-water construction; (b) install manatee caution signs and informational displays; and (c) install and maintain at the boat ramp and near the wet and dry slips a "You Are Here" type of sign, which includes a depiction of the slow speed zone. Items (a) and (c) were included in the DEP wetland resource permit and therefore were not included as a special lease condition. However, item (b) has been included as a special lease condition.

The proposed project was not required to be noticed pursuant to section 253.115(5)(i), F.S., because of exemptions for lease modifications. However, DEP received an objection from an anonymous group calling themselves the Citizens of Punta Gorda that was addressed to the Insurance Commissioner. The concerns raised in the objection received addressed (1) negotiations by the City Redevelopment Authority for the upland development, including impact fee waivers and bonding issues; (2) reserving slips at the marina to condominium unit purchasers and others; and (3) potential irregularities regarding construction of a public fishing pier at nearby Gilchrist Park. Staff is of the opinion that items (1) and (3) are local government issues not within the purview of the Board of Trustees; and item (2) is addressed by Board of Trustees' review of the requested lease modification and the recommended special lease conditions.

Pursuant to section 163.3194(3)(b), F.S., a development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities or intensities, capacity or size, timing, and other aspects of the development are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government. The proposed action is consistent with the adopted Comprehensive Plan according to a letter received from the City of Punta Gorda.

COUNTY: Collier County

Application No. 11-0133967-001

Lease No. 110030195

APPLICANT: MDG Capital Partners Gateway, Inc., a Florida corporation

LOCATION: Section 03, Township 50 South, Range 25 East, in the Gordon River, Class III Waters, within the local jurisdiction of the City of Naples Aquatic Preserve: No

Manatee Area idle/slow speed/caution zone: Yes

Outstanding Florida Waters: No

CONSIDERATION: $11,597.50, representing (1) $10,347.50 as the initial lease fee computed at the base rate of $0.1156 per square foot and including the initial 25 percent surcharge payment; and (2) $1,250 as an administrative fine for the unauthorized placement of riprap on sovereignty submerged lands. The administrative fine has already been collected. The proposed project qualifies for a waiver of the severance fee pursuant to section 18-21.011(3)(c), F.A.C. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. The lease fee may be adjusted based on six percent of the annual rental value, 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, 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 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 construct a 60-slip commercial docking facility preempting 71,609 square feet of sovereignty submerged lands and consisting of five 12-slip floating docks. The applicant will rent the wetslips, therefore, the project is a revenue generating/income related activity pursuant to section 18-21.003(44), F.A.C., and use of the submerged lands requires a lease pursuant to section 18-21.005(1)(b)2, F.A.C. The applicant does not intend to maintain at least 90 percent of the proposed slips available for rent to the general public on a first-come, first-served basis. Therefore, the applicant does not qualify for a 30 percent discount on the annual lease fee pursuant to section 18-21.011(1)(b)2, F.A.C., and the term of the lease will be five years pursuant to section 18-21.008(1), F.A.C.

The proposed docking facility will accommodate mooring of recreational boats, fishing guide boats, sightseeing boats, rental boats, and a water taxi. Dock A will accommodate 40 to 45-foot-long vessels with drafts to 3.0 feet. Docks B-E will accommodate 30 to 35-foot-long vessels with drafts to 2.5 feet. The upland development will include a yacht club, restaurant, ships store and transient (short-term) lodging for yacht club members and non-members. The applicant has been made aware that the facility operations must comply with the anti-discriminatory provisions of the standard lease condition of the sovereignty submerged lands lease.

The applicant is also proposing to dredge 89 cubic yards (2,412 square feet) of sovereign material waterward of the existing seawall to create a consistent depth of -5 feet mean low water. There are no significant benthic resources such as seagrasses or oysters within the proposed dredge area or elsewhere in the project area. Pursuant to section 18-21.011(3)(c), F.A.C., a waiver of the dredge fees may be granted if the materials are placed on public property and used for public purposes, or if the dredged material has no economic value. The spoil will be temporarily placed in an upland spoil site and will ultimately be relocated to nearshore areas of sovereign lands within the applicant’s riparian area to create appropriate wetland elevations for mangrove plantings. This is required as mitigation in the DEP environmental resource permit. Since the material is not being permanently removed from sovereign lands, the project qualifies for a waiver of the severance fee.

During a March 26, 1999 site inspection, DEP staff discovered that the applicant had placed approximately 36 cubic yards (1,939 square feet) of riprap on sovereignty submerged lands without proprietary authorization. An additional 123 cubic yards (3,324 square feet) was placed above the mean high water line along the shoreline without regulatory authorization. No resource damage resulted from this violation, which was resolved through a Consent Order (OGC Case No. 99-1644). The Consent Order allowed the riprap to remain, and required payment of $600 in civil penalties and $250 in DEP expenses. A $1,250 administrative fine was assessed for the unauthorized use of sovereignty submerged lands, pursuant to the Board of Trustees’ policy of August 14, 1990, as modified June 2, 1992. The civil penalties, DEP expenses, and administrative fine were assessed and collected by DEP.

The environmental resource permit (no. 11-0133967-001) will require a sewage pump-out system, will prohibit fueling facilities and fuel storage, liveaboards, boat maintenance, over-water fish cleaning stations and disposal of fish wastes into the water. The permit also requires the creation of wetland planting areas along the shoreline as mitigation. The planting areas, encompassing 4,740 square feet, will create nearshore habitat lost by historic dredging and filling activities in the project area. The planting areas will be stabilized by placement of 155 cubic yards (3,784 square feet) of riprap along the waterward perimeter. The permit also requires that mangroves be planted in these areas, and specific permit conditions address adequate success rates for the planted mangroves. The planting areas will extend into the 25-foot setback; therefore, a waiver was obtained from the affected property owner (Department of Transportation), pursuant to section 18-21.004(3)(d), F.A.C.

The Florida Fish and Wildlife Conservation Commission, Office of Environmental Services, Protected Species Management (f/k/a DEP, Division of Marine Resources) has stated that the proposed project is consistent with the DEP-approved Collier County Manatee Protection Plan. Therefore, recommendations for manatee protection include requiring the lessee to: (1) comply with the standard manatee protection construction conditions for all in-water construction; and (2) install and maintain permanent manatee informational displays and awareness signs at the marina. Items (1) and (2) are addressed in the specific conditions of the environmental resource permit.

The project was required to be noticed pursuant to section 253.115(1), F.S. Eleven property owners were specifically noticed and one objection was received. The objection received was directed at potential adverse impacts to navigation and the objector’s claim to ownership of the river bottom. On June 23, 1999, the DEP provided the objector with an aerial photo overlaid with the objector’s docks and the applicant’s proposed docks showing that there would be no navigational conflict. The DEP also provided the objector a determination from the DEP, Title and Land Records Section, showing that the river bottom constituted sovereignty submerged lands. The DEP deemed the objection resolved, because there was no further response from the objector.

A local government comprehensive plan has been adopted for this area, pursuant to section 163.3167, F.S. The Department of Community Affairs determined that the plan is in compliance. The proposed action is consistent with the adopted comprehensive plan according to a February 7, 1999 letter received from the City of Naples.

(See Attachment 5, Pages 1-41)

Substitute Item 6 The World's Greatest Aircraft Collection, Inc., (a/k/a Kermit Weeks, Trustee) Easement/Lease Modifications

COUNTY: Polk

Easement No. 00359 (4240-53)

Lease No. 532398499

Application No. 53-0129301-3-003

APPLICANT: The World’s Greatest Aircraft Collection, Inc.

(a/k/a Kermit Weeks, Trustee)

LOCATION: Section 04, Township 27 South, Range 25 East, in Lake Agnes, Class III Waters, within the local jurisdiction of Polk County

Aquatic Preserve: No

Outstanding Florida Waters: No

CONSIDERATION: $6,479.22, representing (1) a one-time fee including (a) $1,950 for the easement value; and (b) $2,600 as the enhancement value to the applicant’s adjacent property; and (2) $1,929.22 as the initial lease fee computed at the base rate of $0.1156 per square foot, and including the initial 25 percent surcharge payment for the additional area. An appraisal was performed pursuant to section 18-21.011(2), F.A.C. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable. Fees may be revised upon receipt of an acceptable sketch and description.

STAFF REMARKS: The applicant made application for the proposed project on June 21, 1995, prior to the effective date of the linkage rule of October 15, 1995, that links the regulatory and proprietary authorizations together. Staff has determined that the proposed project meets the requirements of chapters 403 and 373, F.S., for issuance of a wetland resource permit.

The applicant is proposing to modify a ten-year private easement by increasing the easement area from 8.09 to 9.17 acres for the purpose of constructing a base pad for aircraft hangers and maneuvering area for vintage seaplanes. The proposed easement modification will involve the placement of 3,779 cubic yards of fill onto two areas totaling 1.08 acres of sovereign lands for the construction of the seaplane base. The affected sovereign lands consist of 0.94 acre of jurisdictional herbaceous and forested wetlands and 0.14 acre of transitional lands located below the ordinary high water line of Lake Agnes. Structures proposed over sovereignty submerged lands include part of the pad for two hangars that will house seaplanes, a small portion of paved area to be utilized as an access clear zone for maneuvering the Sunderland, a large vintage seaplane, into its hangar, and a 3.5-foot-wide by 26-foot-long boardwalk along the lake for environmental education purposes.

The existing easement was approved by the Board of Trustees on September 15, 1992. The existing easement allowed for the placement of fill onto 8.09 acres of sovereign wetlands to support the foundation for two grassed aircraft runways.

The upland facility is an aircraft museum and tourist attraction located on a 254-acre site between Lake Agnes and Little Lake Agnes just off of Interstate 4 near Lakeland. Of the 254 acres, approximately 70 acres (28 percent) are wetlands. The original Department of Environmental Regulation’s wetland resource permit required extensive mitigation in the form of creation of new wetlands and enhancement of existing ones to replace those lost from filling wetlands for the runway. Another component of the mitigation required by the permit was the preservation of 22 acres of wetlands through protective covenants that will run with the land.

The construction of the two runways was Phase I of a three phase development plan for the museum. Phase III, approved by Polk County as a Planned Urban Development in early 1995, also included the construction of the central aircraft museum complex consisting of hangars for vintage aircraft, a restaurant, a gift shop and a parking area. Phase II, which is not yet under construction, involves expansion of the central museum complex with no associated impacts to wetlands. Phase III, the currently proposed seaplane base, will include preservation of all remaining wetlands adjacent to the museum complex. This requirement has been addressed as a specific condition of the wetland resource permit.

On February 2, 1995, a five-year sovereignty submerged lands lease, preempting 13,260 square feet, was approved by the DEP under delegation of authority for a boat ramp and docking facility located adjacent to the seaplane base. Plans are for the boat ramp and docking facility to be eventually used in conjunction with the proposed seaplane base.

Pursuant to section 18-21.004(1)(d), F.A.C., "activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation." The proposed seaplane base would constitute a non-water dependent use of sovereignty lands. However, staff is of the opinion that the proposed project is in the public interest and qualifies for an exception because the aircraft museum, through its displays of vintage aircraft and aviation history, provides the approximately 100,000 annual visitors to the museum with historical and cultural enrichment and education. In addition, the museum, in coordination with local schools, allows students to gain high school credits through course work at the museum. The applicant has also agreed to install an environmental education display and lakeside boardwalk for the large number of patrons visiting the museum each year. These facilities will be within a 0.46-acre wetland buffer located between the waterward extent of the proposed seaplane base and the natural shoreline of Lake Agnes.

During the project review process, staff considered other potential locations on site for the hangar construction. Due to the placement of the permitted stormwater system and the runways, and considering the required safety setbacks, there were only two possible locations for the hangar. One area was fully in uplands, but this area was across the runway, and the applicant had already obtained the appropriate permits from the Southwest Florida Water Management District for construction of the main exhibit area, included in Phase II of the development plan. The location seemed appropriate for the exhibit area due to the proximity to a main thoroughfare. The second site, included in Phase III of the development plan, is the area being recommended for approval. The location of this site is near the ramp previously permitted by DEP for use by the seaplane. During project development, the applicant redesigned the original project plans for the seaplane base to reduce the impacts on sovereign lands from 1.43 acres to 1.08 acres. In order to compensate for the 1.08 acres of sovereign land impacts, the wetland resource permit requires the applicant to perform mitigation as follows: (1) the creation of 1.9 acres of forested wetlands and enhancement of 2.6 acres of other wetlands; (2) the addition of the remaining 48.4 acres of wetlands (adjacent to the applicant’s upland property) to the existing 22 acres of wetlands already under preservation, for a total of 70.4 acres of wetlands to be preserved in perpetuity through covenants; and (3) installation of an environmental educational display in the wetland buffer area adjacent to the proposed seaplane base. Because the amount of wetland creation and enhancement exceeds the amount of proposed impacts to wetlands, and no impacts to wetlands subsequent to the proposed seaplane base may occur on the site, staff is of the opinion that a net ecosystem benefit will result.

A March 3, 1999 site inspection revealed that the facility is in compliance with the terms and conditions of the existing lease and easement. All fees are current through February 2000. The proposed project was not required to be noticed pursuant to section 253.115(5)(i), F.S.

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

(See Attachment 6, Pages 1-13)

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 formerly 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, 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. Also, due to the fact that Article X, Section 11 of the Constitution states that sales of sovereignty lands may be authorized by law but only when in the public interest, a consideration amount has been established in conjunction with a lateral easement for recreational and pedestrian use over the parcel being conveyed to satisfy this requirement. 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. A landowner not wishing to reclaim such lands under the rule always has 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 7, Pages 1-8)

REQUEST: Consideration of the acceptance of an assignment of an option agreement to acquire 52.22 acres within the Lake Wales Ridge Ecosystem (Lake Blue) CARL project from The Nature Conservancy, Inc.

COUNTY: Polk

LOCATION: Section 14, Township 28 South, Range 25 East

CONSIDERATION: $948,500 ($925,000 for the acquisition; $23,500 for the purchase of the option agreement)

APPRAISED BY SELLER’S TRUSTEES’

REVIEW Hayes String APPROVED PURCHASE PURCHASE OPTION

NO. PARCEL ACRES (07/30/96) (07/10/96) VALUE PRICE PRICE DATE

918001 Hart 52.22 $940,000 $1,045,000 $1,045,000 * $925,000 180 days after

BOT approval

* Sellers acquired the property over five years ago. Specific price information is not available.

Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase this 52.22-acre parcel from LWH Family, Ltd., Sara H. Way, Personal Representative of the Estate of E. B. Way, Jr., Monte J. Tillis, Jr., and Russell C. Hart, individually and as Trustee. After this acquisition is approved, the Board of Trustees will acquire the option from TNC for $23,500, which represents agreed upon compensation to TNC for overhead associated with acquiring the option. The Board of Trustees may then exercise the option and purchase the property. The assignment of option agreement provides that payment to TNC is contingent upon the Board of Trustees successfully acquiring the property from the owner.

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

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

The property will be managed by the Florida Fish and Wildlife Conservation Commission under a single-use concept as a unit of the Lake Wales Ridge Ecosystem.

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

(See Attachment 8, Pages 1-41)

REQUEST: Consideration of (1) authorization to acquire a 50 percent interest in 5,909.57 acres within the Cape Haze/Charlotte Harbor CARL project from Cape Cave Corporation, Cape Haze Corporation, Rotonda Services Corporation, and Gary Littlestar, Trustee; (2) designation of the Department of Environmental Protection, Office of Coastal and Aquatic Managed Areas as managing agency; and (3) evaluation and amendment of the management policy statement.

COUNTY: Charlotte

LOCATION: Sections 23 through 27 and 33 through 36, Township 41 South, Range 20 East; Sections 01 through 03, 10 and 12, Township 42 South, Range 20 East; Sections 30 through 35, Township 41 South, Range 21 East; and Sections 02 through 04, 06 and 09 through 11, Township 42 South, Range 21 East

CONSIDERATION: $4,425,131.92 (Board of Trustees’ 50 percent share of the total purchase price of $8,850,263.84)

STAFF REMARKS: The Cape Haze/Charlotte Harbor CARL project is ranked number 3 on the CARL Bargain/Shared List approved by the Board of Trustees on February 9, 1999, and is funded under the Division of State Lands’ Land Acquisition Workplan. The project contains 7,400 acres, of which these are the first to be acquired. After the Board of Trustees approves this acquisition, there will be 1,490.43 acres or 20 percent of the project remaining to be acquired.

On October 21, 1997, the Board of Trustees authorized staff to enter into an acquisition agreement with the Southwest Florida Water Management District (District) to acquire the Cape Haze 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 Cape Cave Corporation, Cape Haze Corporation, Rotonda Services Corporation and Gary Littlestar, Trustee ownership at 89 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 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 October 26, 1999, the Governing Board of the District adopted Resolution No. 99-42 requesting reimbursement of the Board of Trustees’ share of the purchase price for the property, and 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.

Charlotte Harbor, one of the largest and most productive estuaries in Florida, supports an important recreational and commercial fishery, but is rapidly being surrounded by cities and residential developments, which could harm this important resource. By conserving flatwoods and prairies behind the mangrove swamps and salt marshes of southwest Charlotte and Placida Harbors, the Cape Haze/Charlotte Harbor project will help preserve the water quality of the estuary, protect the habitat for the Florida manatee and other rare wildlife, and provide residents of and visitors to the area with opportunities for boating, fishing, and other recreational pursuits.

Pursuant to section 259.032(9)(b)2., F.S., staff recommends that the Board of Trustees designate the Department of Environmental Protection, Office of Coastal and Aquatic Managed Areas as the managing agency for the project area, to be managed as a part of Charlotte Harbor State Buffer Preserve.

The primary objective of management of the Cape Haze/Charlotte Harbor CARL project is to preserve and restore the pine flatwoods, dry prairie, salt marshes and mangrove swamps on the southwest side of Charlotte Harbor, in conjunction with the existing Charlotte Harbor State Buffer Preserve. Achieving this objective will help to protect the water quality of Charlotte Harbor, its important nursery areas for fish and shellfish, its important recreational and commercial fisheries, and its manatee habitat. It will also provide the public with an additional area for natural-resource-based recreation.

The project should be managed under the single-use multiple-use concept: management activities should be directed first toward preservation of resources and second toward integrating carefully controlled consumptive uses such as fishing the pine flatwoods, dry prairies, salt marshes, and mangrove swamps, and protection of natural and cultural resources. Carefully controlled secondary uses, such as fishing, should be permitted to the extent that such use does not conflict with the primary purpose. Managers should control access to the project; limit public motor vehicles to one or a few main roads; thoroughly inventory the resources; restore hydrological disturbances; burn the fire-dependent pine flatwoods in a pattern mimicking natural lightning-season fires, using natural firebreaks or existing roads for control; strictly limit timbering in old-growth stands; and monitor management activities to ensure that they are actually preserving resources. Managers should limit the number and size of recreational facilities, ensure that they avoid the most sensitive resources, and site them in already disturbed areas when possible.

The project abuts the Charlotte Harbor State Buffer Preserve and includes most of the privately owned, undeveloped land around Cape Haze. It consequently has the size and location to achieve it primary objective.

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 1-39)

REQUEST: Consideration of an option agreement to acquire 14.44 acres within the Cunningham Key project under the Preservation 2000 Florida Greenways and Trails program from Barbara Wray Suggs.

COUNTY:  Pinellas

APPLICANT: Office of Greenways and Trails

LOCATION:  Section 32, Township 32 South, Range 16 East

CONSIDERATION:  $714,000

APPRAISED BY SELLER’S TRUSTEES’

REVIEW Sawyer Crockett APPROVED PURCHASE PURCHASE OPTION

NO. PARCEL ACRES ( 02/21/98) (02/15/98) VALUE PRICE PRICE DATE

918002 Suggs 14.44 $714,000 $673,200 $714,000 * $714,000 150 days after BOT

* The property was conveyed approximately 10 years ago. Specific price information is not available. approval

The property is essentially unimproved land with an old frame building in poor condition that the appraiser indicates adds no contributory value. Pinellas County has agreed to have the building demolished at their expense.

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

The acquisition of this important natural mangrove island would serve to protect it from development, dumping, abuse and to maintain it as a natural greenway along a length of the Bayway Trail. It would also benefit the community by enhancing alternative transportation uses, recreational opportunities, educational experiences and ecological conditions. The proposed acquisition will support operation of the Bayway Trail extension that will connect the Pinellas Trail to historic Fort DeSoto Park. The extension of the Pinellas Trail across Cunningham Key to Fort DeSoto County Park will offer opportunities for hiking, jogging, bicycling, and skating. The paved trail will extend along the eastern side of State Road 679 between the roadway and shoreline mangroves.

The OGT will be the interim manager of the property with Tampa Baywatch as the long-term manager. The property will be managed as an extension of the Pinellas Trail across Cunningham Key to Fort DeSoto County 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 10, Pages 1-31)

RECOMMEND APPROVAL

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, sometimes referred to as "opportunity purchases." With the concurrence of the Department of Banking and Finance, DEP proposes a process such as a revolving fund, funded by General Revenue, and/or utilization of the state purchasing card for implementation.

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 lesser 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 attached procedures for quick response acquisition for the current acquisition requirements would reasonably protect the public's interest and provides 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 substitute the attached procedures and waive the following requirements:

1. a fee appraisal [section 259.041(7)(b), F.S.]
2. evidence of marketable title [section 259.041(6), F.S.]

In accordance with section 259.041(3), F.S., the DEP requests a delegation for the purchase of lands 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 there will be no participation in bankruptcy hearings, auctions or distress sales unless an initial purchase using normal acquisition procedures has been completed.)

Notwithstanding the foregoing, the disclosure requirements of section 286.23, F.S., cannot be waived. Under this section, any person or entity holding real property in the form of a partnership, limited partnership, corporation, trust, or any form of representative capacity whatsoever for others, with few exceptions, must make a written disclosure, under oath, which shall state his or her name and address and the name and address of every person having a beneficial interest in the real property. To the greatest extent practicable, staff will attempt to secure the required disclosure pursuant to the provisions of this section. In those instances where disclosure is required but cannot be obtained, staff will terminate the acquisition initiative.

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.