EAC Minutes 01/19/2001 RJanuary 19, 2001
TRANSCRIPT OF THE WORKSHOP MEETING OF THE
ENVIRONMENTAL ADVISORY COUNCIL
Naples, Florida, January 19, 2001
LET IT BE REMEMBERED, that the Environmental Advisory
Council, in and for the County of Collier, having conducted
business herein, met on this date at 9:00 a.m. in SPECIAL
SESSION in Building "F" of the Government Complex, East
Naples, Florida, with the following members present:
CHAIRMAN:
Thomas Sansbury
Ed Carlson
Michael G. Coe
Alfred F. Gal, Jr.
William Hill
Erica Lynne
Alexandra "Allie" Santoro
ALSO PRESENT:
Barbara Burgeson, Senior Environmental Specialist
Stephen Lenberger, Environmental Specialist,
Development Services
Bill Lorenz, Natural Resources Director
Marjorie Student, Assistant County Attorney
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And
CHAIRMAN SANSBURY: I believe we do have a quorum.
I'm wondering if I can ask someone to call the roll.
MS. BURGESON: Carlson?
MR. CARLSON: Here.
MS. BURGESON: Coe?
MR. COE: Here.
MS. BURGESON: Lynne?
MS. LYNNE: Here.
MS. BURGESON: Gal?
MR. GAL: Here.
MS. BURGESON: Santoro?
MS. SANTORO: Here.
MS. BURGESON: Sansbury?
CHAIRMAN SANSBURY: Here.
MS. BURGESON: And Hill?
MR. HILL: Here.
CHAIRMAN SANSBURY: Okay, we show we have one, two,
three, four, five, six, seven. Is that right? Or are there eight of
us? That makes seven of us.
MS. BURGESON: There's seven right now, and there's an
eighth -- there's one person that's right now going to be
scheduled to go in front of the board for approval or
recommendation to the EAC, and then there's still -- we're still
one vacant. We only had one application for the two spaces.
CHAIRMAN SANSBURY: When is that agenda, Barb, for the
next board meeting; do you know?
MS. BURGESON: It may be scheduled for the 23rd.
CHAIRMAN SANSBURY: Okay, thank you.
Okay, what's the pleasure on how we're going to proceed
this morning?
MS. BURGESON: I think that all we need to do is go through
-- either if the board wishes to have a brief presentation and
discuss or ask questions as Bill's going, or if you want to go
through it, since everybody's reviewed it, and just bring up points
of interest or questions or concerns, we can do it that way.
Either way you want to handle it.
CHAIRMAN SANSBURY: You want to start with a brief
presentation to get us in gear here so everybody's in gear and go
from there? What's the pleasure?
MR. HILL: I think that would be in order.
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January 19, 2001
CHAIRMAN SANSBURY: Okay.
MR. LORENZ: For the record, Bill Lorenz, natural resources
director.
First let's make sure we put everything into context here of
what we're doing and what you have in front of you.
The county of course for those -- I'm sure for some people
this is a repeat. But the county was found to be in
noncompliance with its growth management plan, specifically a
number of environmental issues. We entered into a -- the
Governor and Cabinet issued a final order in June of 1999 in
which case it directed the county to do a number of things.
One of the areas that the county is engaged in is what's
called the agriculture and rural assessment, of which we're to
develop plan amendments that will address the conversion of
lands outside of the urban designated areas in the county.
The final order specifically says that we need to direct
incompatible land uses away from wetlands and away from listed
species, wildlife species and their habitats as well.
Furthermore, the final order also notes that all the
amendments that we have done to date for the remedial -- what
we call the remedial amendments have not addressed wetlands
and wildlife issues. So whereas we have two oversight
committees for the rural fringe area, rural fringe committee and
the eastern lands committee, addressing specific land use
strategies in those areas, we also must bring to the state a set of
amendments to our plan that will address wetlands and wildlife
issues that will address all of Collier County.
So staff has -- is in the position of trying to work with those
two advisory committees with those land use strategies, and
also to ensure that as we bring those amendments forward, we
also have amendments in our plan that will address the rest of
Collier County.
What you have in front of you in terms of this package that
we say Growth Management Plan Objectives and Policies that
address the minimum standards for wetlands, habitat and
wildlife protection, we have put the term county-wide standards
on this particular draft. In my mind certainly they reflect the
standards that will be -- at minimally will be applied to the urban
designated area in the county. If you recall, I don't have a copy of
it, but the Future Land Use Map, and that's the area that's
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basically in yellow on the Future Land Use Map.
To the degree that these policies may be applied in those
other areas that the other two oversight committees are working
on, that's a decision that has to be made as we move forward
with those committees. But certainly we need to have standards
available in the county's urban areas. And this is what these
standards will address at a minimum.
So there is some coordination that has to occur with the
other advisory committees as well. But that's the context for
which you are looking at these policies that address wetlands,
vegetative habitat and other wildlife items.
Now, the wetlands policies today in terms of my
expectations, the EAC needs to -- I want to get input from the
EAC on all of these policies. Today I'm simply looking at as the
wetland policies to provide input on. We can kind of work
through the wetland policies.
Policies that we've established, that we have prop -- that
staff has proposed takes into account a number of things that
the criteria for the state requires counties to do. And that is in
terms of wetlands we need to have a comprehensive planning
process that will address the protection of wetlands, considering
their type, their use, their functionality, their location and their
size. It's very specific language in 9J5.
And remember, the final order, although it doesn't have that
specific language, does say that we need to direct incompatible
land uses away from wetlands, and of course that's the language
that's also in the 9J5 criteria.
So staff has taken the position that building a little bit off of
one of the problems that we've had in the old plan, where you
may recall that one of the objectives talk about a no net loss of
viable naturally functioning wetlands. A big problem that staff
has always had, and a problem that we've found ourselves with
the state in testimony at various administrative hearings is the
fact that viably naturally functioning was not defined. It was not
specific. So staff took the position in this particular draft, in
terms of a framework, to classify the wetlands within Collier
County, based upon their functionality, their size, their location,
their degree of impairment. And that's the framework for which
we've proposed the classification system. Class I, Class II, Class
III wetlands. Class I of course being the most pristine, the most
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valuable wetlands, having the least degree of impairment. Class
III, of course being on the other side of the spectrum, having, if
you will, less importance. Even though I know there's some
problems sometimes with people trying to associate or prioritize
value for all the wetlands. But for sure in Collier County we
know that because of a lot of alterations that have occurred in
the county, that there are many wetland systems in the county
that have been altered to such an extent that it can be argued
that they do not -- no longer possess the -- a large amount of
wetland functionality.
Again, that's the basis for which we've developed the
classification system.
After the classification system, we move from there. Then
in each class of wetlands that we've identified has a degree of
impairment that, if you will, the county will tolerate based upon a
certain criteria. The least amount of impairment of course would
be the Class I wetlands. And those percentages are listed in the
policies that you have.
A third element of the wetland policies is a discussion of
mitigation. I think the EAC has to realize when we talk about
mitigation here, the county is taking the position we are not
proposing a different set of mitigation rules that the other
agencies, federal and state agencies, utilize when they negotiate
a wetland permit, or when a wetland permit is negotiated
between an applicant and federal, state agencies.
What we are trying to do in our policies is to say after you've
done your negotiations with those federal and state agencies,
that they have to at least meet these requirements in the county.
And that's why we have specified some requirements in the
mitigation policy.
I guess there are some other policies in here that address
some unique circumstances. North Golden Gate Estates and
South Golden Gate Estates as well. But as we walk through the
language in each of the policies, if that's what you'd prefer to do,
we can give you the reason and rationale for each of the policies.
CHAIRMAN SANSBURY: Now, how do we handle this from
the standpoint of discussion amongst ourselves, staff discussion,
public discussion? What is the criteria of a workshop? This is
the first workshop that I've had. I mean, I know we have some
folks from the public that might like to speak. Do we let -- does
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that happen at the workshop meeting?
MR. LORENZ: Yes. This would be my suggestion. We did
have a subcommittee meeting Wednesday night. And although
we talked -- the focus mostly on the subcommittee was in the
context of the Growth Management Plan. If there -- there were
some discussions on some of the wetlands. It may be that some
of the subcommittee members may want to just bring that up to
the EAC for their consideration, as part of this little staff
presentation I'm giving. That may be the first thing you want to
do.
The second thing I think is that you may want to try to
solicit comment and input from the public, so that you have the --
you have the public's input to hear prior to you discussing or
getting a little bit more in depth with the policies. And the public
may even have some questions as well that we can address at a
later time.
CHAIRMAN SANSBURY: Members of the subcommittee, how
would you like to handle it?
MR. CARLSON: Well, we've had this material for a while. I
hope everyone's read it. I'd like to go through point by point. I
mean, we discussed some of these points in the subcommittee
meeting. We didn't have lengthy discussions, but I think that's
what our goal should be is to go -- if we have strong feelings
about the way this is worded, this draft is worded, I think we
should go through, point by point, line by line.
MR. HILL: Has the public had access to this?
MR. LORENZ: We've given the public copies of it as we've
made presentations to the EAC and to the -- two other advisory
committees.
MR. GAL: Why don't we let the public comment when we get
to a certain point?
CHAIRMAN SANSBURY: First on there, should we let the
public comment -- I notice Mr. Durham and some other people out
there -- and have their review and then begin our review? Mr.
Coe, what do you think?
MR. COE: Well, you know, I've gotten some information
since what I've reviewed, and spent considerable amount of time
over. But some of the other things I haven't had a chance to
view. I have a question of the county staff.
Did you all take the opportunity to oversee or look at Marion
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County, Sarasota County and some of this other information that
we have just received today, and attempt to integrate -- now, we
don't need to reinvent the wheel. That's one thing I found from
many years in the Marine Corps, every time I got a new
commanding officer, they always wanted to change everything.
The bottom line is it had already been done. If we play cut and
paste with some of the people that have gone before us in other
counties -- I mean, Florida has wetlands. This isn't something
that's unique to Collier County. And if we were to take the best
of the best and try to cut and paste and put it together, I suggest
we wouldn't be sitting here trying to reinvent the wheel, so to
speak.
So yeah, we have a framework, but I don't know where you
all came up with it. Did you devise this on your own in a vacuum,
or did you take some of Marion County's and Sarasota County,
possibly even Lee County and see how they addressed it? For
example, like penalties for draining wetlands. Like the -- and I
use for example some of the North Belle Meade area that had
been disturbed, quote, that supposedly can't be put back the way
it was. You see where I'm going?
MR. LORENZ: Yeah, let me -- I can answer your question
directly. We had -- have the available -- DCA provided us with a
document in 1998. It's called Planning for Wetlands Protection
Through a Federal, State and Local Partnership. Within this
document, there was a settlement agreement with the City of
Inverness, and within that settlement agreement they had a
classification system that we use in terms of Class I, Class II,
Class III wetlands.
We also use the -- some information out of some of those
other counties, but how do I want to say it, it's more -- I did take
-- I did review some of the other counties' policies; I pulled out
what I thought was applicable to Collier County. There may be
other policies that if you want to review it, you can say hey, you
know, let's add to this or change this. So to some degree it was
developed with knowledge of some of the other counties.
But remember, I come back to one of the problems that
we've had before in Collier County, is that in Collier County, if
you start looking at the wetlands systems in the county prior to
any development -- I mean, 90 percent of the county is in hydric
soils, which would indicate that 90 percent of the county was in
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a wetland situation.
And we're so flat here in Collier County, unlike some of the
other counties where you can very easily discern wetlands and
you can stay away from those areas. And maybe they may be
riverine wetlands, and it's very easy to develop a Future Land
Use Map and direct all your incompatible land uses away from
that floodplain.
Collier County, in our judgment, is unique in that we've got
wetlands spread out all over the place and they're all in a variety
of degrees of impairment. So when we were looking at trying to
fit these set of proposed policies, looking at some of the other
counties, I felt, and certainly it was to a large degree my
judgment, that this framework with the City of Inverness,
especially since it went through a -- it was part of a stipulated
settlement agreement with DCA, and that's where we have the
problem with, that to some degree modeled off of a DCA
document, I feel that that would be a -- an advantage to the
county to get through the DCA review process.
Now, if the framework doesn't work -- and I think this is one
of the things I discussed with the subcommittee. If the
framework -- you feel that the framework does not work at all,
then we'll have to go back to the drawing board, and that's -- you
know, that's fine. If on the other hand the framework is workable,
and we need to tweak it, then that's -- to me that's an important
way of making some decisions here. Because then we can work
on some wordsmithing, some additional information. But we
have the basic framework and we can maybe add some
additional policies to it.
MR. COE: What about penalties? I don't remember right off
the bat if we covered penalties.
MR. LORENZ: No, we don't address any penalties within
these policies. We are looking at mostly this is a guide -- a
document that will confine land development activities through
the permitting process.
MS. STUDENT: If I might, you typically wouldn't find
penalties in a comp. plan. It's a more general document. And
things like that would show up in whatever ordinance there
might be to implement it further. MR. COE: Thank you.
MS. BURGESON: The staff would anticipate that once the
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Growth Management Plan policies were approved, it would need
to be adopted into a Land Development Code. At that time we
would ask the staff -- code enforcement to help us in putting
together the penalty.
CHAIRMAN SANSBURY: Yes, ma'am?
MS. LYNNE: With the information that I was just provided
with when I was a new member of the board, there's a letter from
Nancy Linnan that was written to you in November of 2000. And
at the end she -- the wording does suggest that she has
information from other counties that she thinks would be useful.
So I called her up to get it, and it's basically -- it's this much,
okay? And it's full of documentation of plans that are already in
position in other counties from as far back as 1990 and 1992,
which means they've stood the test of time.
And my concern is, is that there's -- having read this
information, there's a huge amount of issues and so forth that
don't appear to have been addressed.
Now, I could be wrong about that, because I've come into
the middle of it. Maybe it's all been addressed in the past. But I
think there's a number of things that we need to look at.
In regards to the penalties, I don't know if penalties as such
were addressed, but the policy that there will be penalties is
included in some of these plans. And I think that's what we're
talking about here, not specific penalties for specific violations.
MR. LORENZ: Let me respond to the -- yes, Nancy's provided
this to us. As we were developing these policies, in fact, we had
a draft, many drafts, prior to what we've given to you, and we
circulated to Nancy Linnan, and she has a couple of planning
members on her staff. She's a -- Nancy Linnan is our growth
management attorney that the County Commission hired to take
us through the DCA process. And she and her staff have
reviewed these policies and specifically worked with us to
ensure that they were tight enough that they thought that would
be -- would meet the test of muster with DCA.
That's I guess one point. The other point is, is that even
though Nancy provided some of these policies that go back to
1992, Remember, one of the things that had occurred -- and
Margie, was it about '93 or '94 when the Growth Management
Plan was modified to very specifically have a wetlands
protection set of policies in it. And that's what trapped us a little
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bit, because when we did our '95 EAR report --
MS. STUDENT: It was in '93.
MR. LORENZ: It was in '93.
-- that we did not address those specific criteria that talked
about comprehensive process, classification of wetlands to size,
type, et cetera, et cetera. So that's why even though those
policies existed in '92 and '93, that doesn't give me any degree of
comfort that as they go through their review process that they're
not going to be held up and said no, this isn't good enough
because of the '93 change to the DCA criteria.
There may be some policies within those other plans that
are worthwhile putting it into our policies as well. So I certainly
don't want to say that we need to reject them out of hand. But
we do have to -- I guess my eye a little bit is on somewhat of the
past, we use what works well and good from other counties. In
other words, we don't have to reinvent the wheel there. But we
know that we've got to look forward, too, in the type of criteria
that we're going to be held to. And it's the 9J5 criteria that talks
about comprehensive planning process, classification of
wetlands, the functionality, size, type, location, et cetera, et
cetera. And so this is the process that we -- with the framework
that staff has put together that we think meets that test. And as
we had the review with Nancy Linnan when she reviewed these
policies, she felt that these have a good shot at passing muster
with DCA.
MS. LYNNE: In that letter, Nancy Linnan does say that the
policies that you have proposed here appear to meet the criteria.
However, she does encourage you to look at this information.
And unless I'm mistaken, you just got this yesterday after I
requested it.
So in November she suggested these particular things, and
now you consulted her right in terms of, you know, what kinds of
policies are going to be legal. It seems unlikely she would have
sent you policies that were not going to pass when that's the
specific job that she has in consulting with you.
MR. LORENZ: Well, like I said, there are policies in that
binder that go back to '92 and were not updated. When we were
developing -- and in fact, I even looked at Hillsborough County.
Of course I looked at Sarasota County. We had Martin County.
She doesn't have Martin County in that binder either. So there's
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a whole set of counties that we have looked at. As I said, there
could very well be additional policies that we can pull in to
enhance it.
But also, remember too that -- and this is where I kind of
come back to it, is Collier County is still a lot different than a
Leon County and a Sarasota County. We've got unique situations
here.
MS. LYNNE: The only point that I would like to make is that
there are a huge number of important points that I listed in a
letter here that really deserve consideration. And I think they do
need to be considered. I think that we don't want for Collier
County the very minimal standards. I think we want the best
possible plan that we can have. I think the citizens of Collier
County deserve that. And I think the commissioners that
appointed us deserve for us to give and for staff to give full
consideration to these things.
CHAIRMAN SANSBURY: Agreed, Ms. Lynne. I think the
purpose we're going to do when we go through this line by line --
you're points are well taken, I think -- is that's the time I think to
bring those areas up as they affect -- I believe today we'll go
through this paragraph by paragraph, and where those things
were late, let's bring them up and discuss them and see if it's
something we want to add or something we want to change.
Sound reasonable?
Okay, now, Bill, from the standpoint of your presentation, is
there anyone from the public that does want to speak to this
today? There is. Should we hear those gentlemen at this time
and then go into our line-by-line discussion? Would that be a
reasonable way to do this. MR. COE: Fine.
MR. GAL: Can I ask one question?
CHAIRMAN SANSBURY: Sure.
MR. GAL: I just want a quick primer on where we stand as
far as administratively. This is a policy that goes to the state
DCA, is that correct, and then once they accept it, it gets
reduced to -- into the Land Development Code in Collier County,
and it gets more specific as far as definitions and penalties and --
MR. LORENZ: The process -- process for any Growth
Management Plan amendment, and this will follow that, is that
we will take -- finally take these amendments to the Board of
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County Commissioners for a transmittal -- what's called a
transmittal hearing. Actually, it will go to the Planning
Commission before the Board of County Commissioners. Then it
will go to a transmittal will hearing.
It will then be transmitted to DCA. DCA will then turn
around and give us a report, which is an Objectives,
Recommendations and Comment Report. The acronym is ORC.
So I may slip into the acronym periodically. But they will provide
that report.
We then have a certain amount of time to take into account
DCA's Objections, Recommendations and Comments, and if we
so choose, modify what we transmitted to DCA.
The board, County Commission, will then conduct an
adoption hearing, and adopt the set of policies. They will
forward those to DCA. DCA will then determine whether they are
-- they will then issue a notice of either intent to find in
compliance or not in compliance.
At that point there is a challenge period as well for anybody
from the outside to come in and challenge DCA's decision.
Assuming we get through all that process and we then have
amendments that are effective, those amendments will have to
then be translated into -- to some degree into the Land
Development Code. So they will then be implemented through
the Land Development Code. And the Land Development Code
has to be found to be consistent with those overriding policies --
goals, objectives and policies. I don't know if Marjorie wants to
jump into that.
MS. STUDENT: And I think because we're under a final
order, and this is a unique process with the county and not very
common either in the state, I think that once we go through and
do everything, there's going to have to be some kind of report
that DCA is going to take to the administration commission and
get some kind of blessing on what we've done before we can
implement them through the Land Development Code.
CHAIRMAN SANSBURY: Okay.
MR. HILL: Mr. Chair?
CHAIRMAN SANSBURY: Ms. Marjorie, do we need to swear
people on --
MS. STUDENT: No, this is a workshop --
CHAIRMAN SANSBURY: It's not quasi judicial? Okay.
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MS. STUDENT: -- and it's legislative, it's not quasi judicial.
CHAIRMAN SANSBURY: Good.
MR. HILL: This set of policies goes to DCA, along with
everything else. We don't transmit individual policies one at a
time; is that correct?
MR. LORENZ: The way I see this process, particularly
working here as it relates to the activities of the other two
committees, I'm proposing that these set of policies go to DCA --
go to the board through a transmittal hearing, and then go to
DCA, along with at least the policies that the rural fringe
committee is developing to propose the amendments of how the
rural fringe areas will develop out. So that's where I see these
policies merging with that activity.
And the reason is, my concern is, is if the fringe committee
is to move forward and just focus in on their land areas of their
concern, which is not in the urban area, when that goes to DCA,
DCA will look at it and say well where's your comprehensive
wetland policies that are going to be addressed in the urban
area? Because we've told you that what we've done before does
not address wetland protection.
So that's why I see these coming together and going to DCA,
at least at that time. And of course the time frame for that as
we're getting -- the window is closing in terms of the reasonable
time frame that we have our amendments effective by the final
orders deadline of June of 2002, so it may be everything hits
them together, because of simply where we are on schedule.
MR. HILL: Okay.
CHAIRMAN SANSBURY: Mr. Carlson, you have something?
MR. CARLSON: No.
CHAIRMAN SANSBURY: You want to hear the comments
and then we'll get into it? Public comments on proposed policy.
MR. ANDERSON: Good morning, Mr. Chairman, members of
the advisory council. For the record, my name is Bruce
Anderson.
And there's two major problems with the proposed minimum
county-wide policies for wetland protection. The first is that this
proposal is premature, at best. And secondly, the county staff is
advocating a new permitting bureaucracy without providing any
information on how much it will cost to start up and keep it
operating.
Paget3
January 19, 2001
I know that at your last meeting Mr. Lorenz told you that this
was not going to be a new permitting program. I would
respectfully beg to differ, because when I look at Policy 1.15, I
don't know how you enforce it or implement it without issuing
permits. Indeed, the very language of this policy says the county
shall not permit development. So in fact, we are setting up a
new permitting program, and let's just be honest and upfront
about that.
It's premature because at the present time there are at least
three separate government sponsored studies that may impact
wetland permitting in our area. First is the Governor's Growth
Management Study Commission, which met last month in Fort
Myers; the second is the Army Corps of Engineers Environmental
Impact Study, which is being finalized; and the third is the Collier
County Rural Area Assessment that was mandated by the
Governor and Cabinet, which is currently being conducted by two
separate study committees.
Nothing in the final order requires the county to set up a
wetland permitting program for the urban area. In fact, the state
Growth Management Act specifically prohibits the Department of
Community Affairs from imposing such a requirement.
We've had a lot of discussion about what occurred in 1993
with DCA changing their rules. Well, another very important
change occurred in 1993, and that was the state Growth
Management Act was amended to specifically provide the
following prohibition: Section 163.3184, quote, when a federal,
state or regional agency has implemented a permitting program,
the state land planning agency shall not require a local
government to duplicate or exceed that permitting program in its
comprehensive plan, or to implement such a permitting program
in its land development regulations. Unquote.
Despite this prohibition, a local wetlands permitting program
is what is being proposed. There's been no explanation of fiscal
impacts to implement this new program. Bottom line is that the
proposal is premature because of other governmental regulatory
reviews already underway on the same subject, and the price tag
is not known. Thank you.
MR. CARLSON: I have a question.
MR. ANDERSON: Yes, sir.
MR. CARLSON: The language you just read, if I heard it
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January 19, 2001
correctly, said that a local county government or local
government would not be required to have its own permitting
process. But it's not prohibited. And you use the word
prohibited. You said it --
MR. ANDERSON: It prohibits DCA from requiring it.
MR. CARLSON: But that doesn't prohibit local government
from having it.
MR. ANDERSON: No, no, it does not. It prohibits DCA from
requiring it, though. Thank you.
CHAIRMAN SANSBURY: Thank you.
MR. DURHAM: Good morning, my name is Tim Durham. I'm
with WilsonMiller.
CHAIRMAN SANSBURY: Mr. Durham, before you start,
General Coe a little earlier identified you as being an attorney.
And I assured him that you were much higher on the food chain.
No difference, though.
MR. DURHAM: Could we emphasize that in the record,
please?
I've practice environmental consulting in South Florida and
across Florida for the last 18 years, and I'd like to provide some
comments, more of a technical nature.
My concern -- I have some concerns about this perhaps
being premature, not appropriate. But beyond that, I look at
something like this and say how would I serve a client who came
to me and tried to make all this work. And I've got a list of things
here I'd like to touch on. And perhaps as the workshop goes
along, we get into some of these items, I'd like to maybe have a
chance to provide some input then, if necessary.
But the concept of designated wetlands as Class I, II and III,
there's kind of a general definition there. I'd have a hard time
going to some pieces of property in Collier County and telling
somebody yes, this is a Class I, II or III. Clearly some are
obvious. I think some of the areas we're talking about as NRPA's
for the county, you know, we're at the high end of the scale. But
the middle is hard to apply this definition. A concern about
passing any new rules where you can't, you know, take it out
somewhere and say yes, this is or isn't affected by this, I think
that's a little bit scary.
Flowway wetlands, for example, you know, they're
interpreted -- defined as riverine systems or seasonal
Page 15
January 19, 2001
depressions that convey water. And a lot of our systems down
here, real extreme storm events could get high enough and
convey water. So what storm event are we talking about, or
what conditions.
We have in here 75 percent melaleuca as a threshold in a
couple of different places. The Water Management District had a
series of workshops several years ago and passed a melaleuca
rule. That -- those series of workshops were based on a lot of
input, lot of consideration in this issue. They established a
sliding scale that starts at 50 percent. And I think that has more
value.
Also, the way the Water Management District looks at
melaleuca infestation, it's not defined purely as canopy
coverage. Canopy -- you know, simplistically, it's like if you flew
over an airplane to look down, you would see how much
coverage you have by different species. Melaleuca grows
exponentially. You can get a heavy layer of melaleuca on the
understory before it really comes through the canopy. By the
time you've got 75 percent canopy of melaleuca, you know,
you've pretty much wiped the system completely out. So for the
South Florida rules, for example, you really look at the
sub-canopy level to try and identify it.
My point here is that this rule that we're talking about really
conflicts with some of the other existing rules and some of the
progressive thought that's gone on.
The language also talks about mitigating for wetland
impacts on both a wetland area and function basis. Let me just
say that over the years, the way we've looked at wetlands, done
wetland permitting has evolved. In the early Eighties, mid
Eighties, it was pretty much -- it was loose. I mean, you
proposed impacts, you went out to the regulatory agency, you
said kind of said yeah, that looks good, why don't you give me
that for mitigation. You worked out a deal. There was -- nothing
was quantified. It was pretty much what felt right.
As we got in the late Eighties, early Nineties, it started
getting more scientific. People started taking a harder look at
the science of wetlands. You had to start justifying your wetland
impacts more on functions, and you had to justify your mitigation
on functions.
For the last several years the Corps of Engineers has gotten
Page 16
January 19, 2001
away from the idea of ratios completely. South Florida Water
Management District has held onto ratios, but I will tell you that
they have been mandated now to go out and develop a functional
assessment methodology that they look at for impacts and
mitigation of wetlands.
I won't bore you with the whole report, but the Office of
Program Policy Analysis and Government Accountability issued a
report in March of 2000, and that's supposed to be an
independent analysis group that provides input to the Florida
legislation. I'll just read a couple of things. And my point here is
that the wetland area is changing. The idea of ratios is going
out.
Let me read one of their findings to you, if I could. Changes
are needed to ensure that proposed mitigation adequately
offsets the loss of wetland functions. The permit review criteria
establishes a goal of no net loss of wetlands functions; however,
the current use of ratios does not provide a clear evaluation of
the extent to which mitigation offsets loss of wetlands functions.
The current ratio method does not adequately measure
functions as either impact or the mitigation site. And it goes on.
What they recommend here later is in order to assess the
loss of wetland functions, we recommend that the legislature
require the department, the Water Management Districts -- and
the department, they, meaning DEP -- and the Water Management
Districts to develop and adopt a state-wide mitigation
assessment methodology by June 30th, 2001. This methodology
should include a functional assessment of wetlands for impact
and mitigation sites. And it goes on.
The point here is the progressive idea in wetland programs
is moving more toward functions. The idea of area replacements
is really falling by the wayside. As we -- this language you see
here has been kind of pulled together from different ordinances
and things, and I'm afraid it's kind of looking backwards. So I
have some concern about that approach in here.
50-foot buffer requirement conflicts with South Florida's
current Safe Harbor Provision, which is 25. Talks about wetland
creation as one of the principal types of allowable mitigation.
And again, creation is kind of an outdated thing. I think very
rarely do we see pure creation as a form of wetland mitigation.
Requiring mitigation to occur only in Collier County is not
Page 17
January 19, 2001
really ecologically defensible. I understand the idea so the
numbers add up for Collier County, but recognize, we have a
huge wetland system, of course we're regional, the CREW system
up there, which straddles two county lines, and I think the idea
of limiting, you know, on political boundaries is probably a bad
idea.
In terms of the wildlife protection, the Fish and Wildlife
Conservation Service does not always have clear requirements
for broad spectrum wildlife surveys. Those are often customized
for projects. We'd like to see that be a little loose and recognize
that.
And again, I guess just kind of tying back a little bit to what
Mr. Anderson said, there are some major studies going on in
Collier County right now with the rural fringe and the rural lands
assessment.
One of the main goals of those is to go out and identify
where our key resources are and to come up with
recommendations to dealing with those. Most protection
programs, in my mind, is you clearly identify what is for
protecting and then write a well defined clear precise plan of
how to protect those. What we've done here with this language
is collected other pieces of programs and put them together and
said let's slap this on the county and hope this protects the right
things. Until we can define where those things are and how best
to protect them, I feel we're premature with this. And thank you
for your time. Yes?
CHAIRMAN SANSBURY: Yes, sir, Mr. Carlson.
MR. CARLSON: Could you -- one of the things that's
bothering me is the use of this melaleuca cover as an indicator
of altered hydrology. And I think there's probably lots of
examples of wetlands without altered hydrology which are
infested with melaleuca; am I correct?
MR. DURHAM: No, I don't believe I implied --
MR. CARLSON: Well, no, it's a problem that I have with what
are the conceptual plan, the Growth Management Plan objectives
that we're reviewing.
So I mean, in your experience, using percent cover of
melaleuca as an indicator of hydrologic alteration, it just doesn't
mesh.
Page 18
January 19, 2001
MR. DURHAM: I don't think it's always true. I don't believe
I've implied that in anything I've said. I've certainly seen
melaleuca --
MR. CARLSON: I'm trying to --
MR. DURHAM: -- typically if I find --
THE COURT REPORTER: Excuse me, one at a time, please.
MR. DURHAM: Typically, if I find -- it's been my experience
that if you've got a real high functioning wetland system that's
had good hydrology all along, that the native vegetation
establishes pretty well. Most of the time when I see melaleuca,
it's in areas that have had some impaired hydrology to really
encourage the melaleuca to come in. That's not to say it's
always the case. I have seen sites where you can see melaleuca
at different heights, almost like a wheat field and then maybe
another layer that's seven or eight foot taller. And some of the
infestation levels correspond to some of the dryer years. We go
through some real dry periods and you really see a big spread of
melaleuca. Then you get in a bunch of wet years and they don't
spread as much. Another dry year and they come in again.
But the deeper areas in those systems which maintain the
strongest hydrology tend to have less intrusion. So while it's not
always true, I've seen lots of sites where the presence of a lot of
melaleuca, you can go back and find where the hydrology has
been altered on the sites.
MR. CARLSON: Okay. So how would you determine
hydrologic alteration on a site, on a wetland that you visit? How
do you do that?
MR. DURHAM: Well, look at historic indicators. Buttressing
on trees, other physical characteristics of the site, compared to
current. Look at the ditching in the area. A lot of times there's
monitoring wells and historic data we would compare. You
know, it's a range of things we look at.
And Water Management District requires us to submit that
kind of information with permits. Whenever the water
management control elevations are set for a project, for
example, we have to provide them information on the historic
versus current water levels.
MR. CARLSON: So in your experience, percent of invasion of
melaleuca, how -- you know, how -- I'm having a hard time this
morning. How relevant is that? Is that the major indicator of
Page 19
January 19, 2001
hydrologic alteration, or is it a minor indicator? I mean, it's the
major -- it's one of the major indicators in this proposed -- in this
draft that we're looking at as an indicator of hydrologic
alteration.
MR. DURHAM: It is a strong indicator. I think you have to go
look at other information as well. But my concern, when you hit
75 percent infestation of melaleuca on a canopy level, you're
getting close to climax community of melaleuca. You have really
displaced most of the native vegetation at that point.
Recognize, you can go through a lot of systems where the
melaleuca or, you know, one to two-inch diameter would be
rampant through the system and it wouldn't even show up on this
as having melaleuca. I mean, you're, you know, below that
threshold. And as you know, once melaleuca gets to that point,
it just keeps going. You may have a landowner say gee, I don't
meet the threshold, I'll just wait two years and let the stuff keep
going and spreading and then I do meet the criteria, when it
would make more sense to get in there earlier, clean out that
melaleuca and do some preservation of the property. I'm telling
you, you know, that's just a reality of life.
MR. CARLSON: Thank you.
CHAIRMAN SANSBURY: Yes, ma'am.
MS. LYNNE: Thanks. Just since I don't know you, what are
your -- I understand you're with WilsonMiller. What's your
qualifications in terms of hydrology and the environment?
MR. DURHAM: I am the director of environmental services
with WilsonMiller. My background in my school is as a civil
engineer, but I got into the environmental arena in 1983. Have
been involved in hundreds of projects. I supervise a team of soils
scientists, botanists, biologists. We have a water resource
division which I'm partially responsible for which has a lot of
engineers, et cetera. So I've basically lived the stuff for quite a
few years.
MS. LYNNE: Thank you.
CHAIRMAN SANSBURY:
Durham? Hearing none.
Any other questions for Mr.
MR. DUANE: Good morning. For the record, my name is
Robert Duane. I'm planning director of Hole, Montes &
Associates.
My expertise is in land planning, land policy and land use
Page 20
January 19, 2001
regulations. I've been working directly and indirectly in the
permitting process for a number of years. But I'm going to
temper my comments from the planning point of view.
When I reviewed this ordinance initially, it struck me, is this
the kind of an ordinance that should be making some distinctions
between our rural and more pristine areas and our urban area?
And it wasn't until the past week that I learned that this is in fact
the ordinance that we're going to start with by protecting
wetlands in the urban area.
I went back and reviewed your outside legal counsel's
memo, and I thought it was worthy on Page 3 of her letter that
was dated November 8th, she said -- and it's quoting from the
middle of the page, and I hope not out of context. It says,
similarly, where wetlands are in more urban areas and are
therefore more likely to be impacted, the county may allow a
much greater impact of those wetlands, precisely because they
would be altered, degraded or otherwise already impacted in
some fashion.
And I gave that some thought and I looked at this ordinance
how it might effect development in our urban area.
Most of you may know that our urban area comprises a very
small part of our total county. Actually, it's about 78 square
miles of our almost 2,000 square mile county.
And I think Bill has shared with you this morning that
particularly in our urban area, we're dealing with wetland
systems that have been altered and have been degraded to one
degree or another.
And I think applying this ordinance within the context of the
urban area where you have a lot of what I'll call these
transitional wetlands, and I'm going to give you an example in a
moment, that applying to this standard in my mind is going to
greatly impact the amount of density that you can place on this
property, the amount of development density that you can place
on these properties, and I think there's going to be a fiscal
impact in not only trying to administrate that ordinance, but
there's going to be a fiscal impact in context of the urban area in
things like affordable housing, in the ability to meet our
projected needs within the urban area. Because let's be frank,
when we utilize this land in the urban area, we're going to have
to go beyond the urban area.
Page 21
January 19, 2001
And I think most urbanists would tell you that you that we
ought to try to most efficiently and effectively use the land that
we have within the urban area.
And this ordinance, I think can be very cumbersome. Let me
give you one example, and there are probably a thousand
examples you and I and others could share with you.
There's a piece of property called Neapolitan Park. I do not
represent this property, as an example. It's a 20-acre piece of
property right next to the farm field on Davis Boulevard and
Santa Barbara Boulevard. It's about 600 feet from the
intersection. It extends in a northerly direction. Some of you
might be familiar with that general location. That is a piece of
property that's in our activity center. It's slated for our most
intensive commercial uses and our more intensive multi-family
uses.
That 20-acre tract has approximately 14 acres of wetlands
on it. 12 of those are the transitional wetlands which I think
would fall in a Class III wetland under this ordinance, which
means you could only impact half of those wetlands, unless you
provide upland mitigation, as I understand the ordinance.
Well, I tried to permit that property a few years ago. Under
the rules that exist under the South Florida Water Management
District and the Army Corps of Engineers, there was 80 acres of
off-site mitigation required to mitigate these transitional
wetlands, which by the way in the early Nineties were not
claimed by those two agencies, but the rules evolved, as Tim
shared with you, over time.
The price tag to develop that 20 acres that's zoned for
commercial uses and multi-family uses was approximately
$300,000 of off-site mitigation for wetland impacts. The
mitigation for impacting the upland portion of this property,
because there's some red-cockaded woodpeckers that are within
the vicinity of this property, was another $100,000. The property
owner threw his hands up and I don't think has any immediate
plans to develop the property.
When you take this ordinance and you impose it over top of
it, let's just assume that you don't mitigate your upland areas,
because there's no room to mitigate these wetland impacts with
additional upland areas on this site. You take one or two of the
components of the property out, you take the multi-family
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January 19, 2001
component which had several hundred units in it out, or you take
the commercial component. The irony is this was to be a mixed
use property, where the commercial and residential should
coexist on the same site. It has access to a shopping center
next door. It's going to be developed north more than likely with
other multi-family uses.
And what's the consequence of this? In terms of its habitat
value, we've not perhaps accomplished much with a property like
that at all other than I think compromised a lot of our other
objectives of our plan, which is to encourage rental housing,
encourage affordable housing, encourage mixed use projects.
And maybe my -- this is more of a philosophical concern I'm
sharing with you, but I think that the staff needs to provide us
some more information as to what -- how many acres within our
urban area are likely to be affected by this ordinance. And I
would submit to you that there are thousands of acres of
transitional wetlands in the urban area. Should we be trying to
preserve some of those functions and integrating those into the
development of urban area? Yeah, of course we should do that.
On the other hand, I think the ordinance is very, very
strident as a place to start from. And I don't disagree with the
other points that the other gentlemen made.
Just to wrap up, let me touch on one or two other things.
Under this ordinance you would require a variance to impact any
Class I or Class II wetlands. That's a pretty tough road to hoe to
get a variance. I deal with variances in our code from time to
time, and you have to demonstrate a bona fide hardship.
And I wonder if that's the place to start, where you have to
demonstrate a hardship, particularly in the urban area, to get
what I would consider to be a reasonable use of your property. I
would encourage you to try to establish some baseline if you
adopt this ordinance in this fashion of the number of acres that
you could at least use by right on your property.
Tim touched on some of the potential for conflicting
mitigation requirements with this ordinance and criteria, as I
understand them, from the District and the Corps. But
particularly with these transitional wetlands, which are of a
lower quality, the Corps and District will require, to the extent
they use ratios, as little as a quarter of an acre of mitigation for
each acre of impact. This ordinance requires a one-to-one ratio.
Page 23
January 19, 2001
And as Tim indicated, maybe the ratios are somewhat
antiquated. But it's certainly requiring a higher leveling of
mitigation.
And maybe as a policy board, that's what your goal is, that's
what your charge is, but I'm just sharing with you some of the
consequences of what we will be doing, which is now going to
one agency, having to come back to the county, possibly having
to go back to another agency to modify a permit because of the
county's requirements. And I think that has the potential to
become cumbersome.
The 50 percent setback or buffer requirement, as Tim noted,
is much more strident than the Water Management District's, and
I wonder, for example, with transitional wetlands, whether you
want to have a 50-foot buffer or maybe a Class I wetland or a
flowway that makes some sense. But I think it needs to be
structured more in the context of a performance standard where
the requirements can be adjusted based on the functionality of
the characteristics of the land.
Finally, let me talk about incentives. There are other points
I could share with you. But there are no incentives in this
ordinance. It is all stick. Lee County, for example, allows you to
increase your density in some of its urban land use
classifications if you preserve the wetlands. So there's a bona
fide reason where some developers can realize I can put more
development on less sensitive parts of my land, and there's an
incentive for that to be done.
Similarly, there's also an incentive in some of their land use
classifications where some habitat is determined to be
functional in an urban area, that it is given a much higher weight
in terms of meeting the mitigation requirements. In other words,
if you have to provide a certain percent of habitat and you're
providing a very critical habitat function, Lee County in some use
classifications will allow to you weigh that 1.5 times the weight
that you would provide for it in some other land use
classifications.
So my point is that I would like to see some incentives
incorporated in this ordinance. We may find that many of these
objectives could be accomplished in part at least through that
kind of approach. And I appreciate the opportunity to share my
thoughts with you this morning.
Page 24
January 19, 2001
CHAIRMAN SANSBURY: Thank you. Questions?
MR. COE: I've got a question. If on a piece of property you
go in and are permitted to destroy say some sort of wetland,
regardless of what class it is; let's say you destroyed an acre and
let's say we required to you mitigate that with an acre
someplace up in Corkscrew or something like that, what's wrong
with that?
MR. DUANE: I don't think there's anything wrong with that.
I mean, it's done today. Off-site mitigation is an integral part of
the permitting process.
MR. COE: Let me ask you this: How much is that acre that
you just destroyed worth to you as a developer, if you could
develop on it?
MR. DUANE: There's so many variables.
MR. COE: I realize that, but it's worth a lot of money,
correct?
MR. DUANE: Certainly. Some of -- within any development
some areas are going to have to be set aside for open space, for
habitat protection, for water management. And when you get
down to it, you're dealing with a much smaller portion of the total
pie. And the value of that which you can use is certainly
valuable in the marketplace.
MR. COE'. I'm talking about the total pie, though, I'm not
talking about piecemeal of what's environmental and what's
buffer zones and all that. If you've got 10 acres and you can only
develop, say, seven acres, but you destroy one acre of which is
water, wetlands, that means your property's worth more money
overall, the big pie, right?
MR. DUANE: We're going to be able to utilize --
MR. COE: That's correct.
MR. DUANE: -- other parts of it, correct.
MR. COE: So that has a cost associated with it. What's
wrong with going in with an appraiser, appraising how much the
value of that land is, and then have you buy whatever that
amount is, in Corkscrew or someplace else?
MR. DUANE: Well, I think under the mitigation and the rules,
as I understand, you know, that is often done, where some of the
mitigation is provided on-site first, and whether or not
opportunities to do that, mitigation is provided off-site. That's
very common. I'm trying to answer your question.
Page 25
January 19, 2001
MR. COE: I'm --
MR. DUANE: And I'm not sure I disagree with you.
MR. COE'- What I'm saying, I guess -- and I realize there's a
lot of the variables, so I'm trying to grasp on the principle of
being, you know, if you don't develop a property it's only worth,
say, $25,000 an acre. If you have developed property, it's worth
200,000. If we require you one for one, acre for acre, that's not
the same thing. The acre that you're developing on is worth a lot
of money, but the acre that we're requiring you to mitigate on is
worth maybe 50 bucks. You understand where I'm coming from?
MR. DUANE: Yeah, I understand where you're coming from,
but -- and where I'm coming from is we have an urban area and
we have projected needs. We have a population, we need a
certain number of housing units, we need a certain number of
multi-family housing units, we need shopping. Those need to
have a relationship to one another. I think preserving open
space and preserving some wetlands to some degree in the
urban area, I'm not in disagreement that that's not an important
consideration.
I'm speaking to an ordinance this morning that I think from a
planning -- some provisions of this ordinance in concept may be
very applicable for the vast majority of our county. And I'm going
to be addressing the next round of ordinance as it affects those
parts of the ordinance when you get to that.
I'm here addressing this ordinance as it applies to the urban
area, and I'm not sure that it's good for our community. And I've
lived here for a while. Some of you may or may not know me.
I've had the privilege of serving on your environmental board, on
a regional council, on a Commission for Sustainable Florida, and I
also represent developers. But I'd like to think that my view is a
more moderate one, and my comments were shared with you in
that context this morning. I appreciate the opportunity.
CHAIRMAN SANSBURY: Any questions?
Okay, just a comment. And just comment -- and if we could
comment on what we're talking about here. The one-to-one
value, and because I deal with this daily, really has a greater
effect as you look at different parts of the market, okay? If
everything was developed like I'm developing over there, so
what? But how do you deliver something at a reasonable price
to somebody when eventually you've paid for the land already
Page 26
January 19, 2001
and then you come in and take the entire value of that land, so
you're actually paying for it twice. Yes, there's a value, but it's
not the value of property, it's the value of the function of that
wetland.
So it's somewhere in between. That's why I don't -- it's not a
one-to-one situation I don't think from a value standpoint. Yes,
there's a value. How much is it? It affects more when
somebody's trying to develop a product of affordable housing or
reasonably priced housing, versus somebody that's developing
very high-end stuff.
MR. LORENZ: Mr. Chairman, I want to just make sure, just a
couple of things I heard, just to make sure, that the mitigation
that staff is recommending is a minimum of 1-1. The agencies
typically, you could be up to 40-1 in terms of current permitting
for different types of wetlands and under what certain
circumstances.
This is very much from the county staff's proposal very
much a floor to say you certainly can't go below 1-1.
Now, we do have a tighter restriction, however, in terms of
this policy with regard to exotics removal. Because Collier
County already requires exotics to be removed from wetlands,
staff doesn't feel it's appropriate for that to be counted in a
mitigation ratio that would tend to drop you below a 1-1 ratio. So
that's why staff is very much a minimum requirement here,
subject to the condition I just noted with regard to the invasive
exotics.
CHAIRMAN SANSBURY: I don't question the 1-1. I just
question the dollar value.
Okay, do we start now with Objective 1.1. Start walking
through it? What's the pleasure, Mr. Carlson? You seem to have
the more notes -- the most notes of the group. MR. CARLSON: I do.
I really don't have any comment on this section.
CHAIRMAN SANSBURY: Okay.
MS. SANTORO.' I do.
CHAIRMAN SANSBURY: Okay, yes, ma'am.
MS. SANTORO: Having had a situation recently in a NRPA
where we had excavation and possible blasting and so forth,
could we get a definition of the agriculture and directly related
uses? I'm uncomfortable with such vague phrases.
Page 27
January 19, 200t
And the other question was -- I'm looking down, I'm sorry,
1.1.1 and then Section 3. The other thing it says is one
single-family dwelling parcel or lot created prior to June 22nd,
1999 shall be allowed. So after that point is that saying that
building lots are not allowed, or is it going toward a new
definition?
MR. LORENZ: The -- in paren. three on NRPA's, that's
language that's pretty much tied from out from the final order.
The final order does allow agricultural related uses. We don't
have a planner here, but those -- and if you think about
agricultural, I mean, row crops, anything that produces the
agricultural product, and if it's of a related use that's needed to
support that, that would be allowed within a NRPA boundary.
The one unit -- one single-family dwelling unit per parcel or
lot created prior to June 22nd, 1999 is the requirements of the
final order that the county has adopted in its Growth
Management Plan right now as interim standard, subject to the
final plan amendments for the ag. rural assessment. What that
means is that any property that's within a NRPA, for instance, if
you have a 20-acre property, prior to the final order being
effective, that density could have been one unit per five acres, or
you get four units. Because of the final order now, you only have
one unit for that 20 acres. So that essentially was a down zoning
with regard to the final order.
We have -- this policy continues that language for natural
resource protection areas. However, there's another policy
that's further back in here, I forget the number, but the
understanding is, is that as the -- as those two advisory
committees move forward with their Growth Management Plan
amendments, they may make recommendations, and we may
propose different amendments with regard to uses within
NRPA's.
So just realize that that's -- this is still in the context of
those efforts moving forward.
MS. LYNNE: I realize that the law about agriculture and
direct uses is set in stone. But later on, too, they use -- it's the
term bona fide agricultural industries, or whatever, activities,
and bona fide is what seems to me to be the key issue in that we
need a definition of what a bona fide agricultural activity is. That
was the problem that we had at the last meeting was was it
Page 28
January 19, 2001
really bona fide.
MS. BURGESON: Yes, we do have a definition, and that was
a bona fide agricultural use. We review it as it's defined in the
Land Development Code. And I can get a copy of that to you.
There is a specific list of what is considered bona fide
agricultural uses, and we would not have recommended approval
of anything that would not qualify for that.
MS. LYNNE: Okay. I don't mean bona fide then in terms of
is this a bona fide classification, but is this a bona fide effort at
an agricultural business. For example, the IRS looks at
businesses and defines them based on how much money they
make, whether you're actually -- you know, and that's what I'm
talking about.
MR. COE'- I'm sorry to change the subject, but someone just
told me that the Planning Commission passed that fish farm thing
MS. BURGESON: Yes, they did.
MR. COE: -- 6-1.
MS. BURGESON: I'm not sure if it was 6-1. I know that only
one person voted against to it deny it. So 5-1, 6-1, whatever that
was,
MR. COE: I'm floored. Why are we here?
CHAIRMAN SANSBURY: Moving right along.
MR. LORENZ: Mr. Chairman, if I may take maybe the
opportunity, the question was raised in this policy, but I'd like to
just provide a little bit of background for how this is set out, this
Policy 1.1 here, because I want to the tie back I think to what -- I
think it was either Tim Durham or Bruce Anderson had mentioned
in terms of classification system.
Remember that in the NRPA program we've identified the
natural resource protection areas, acronym NRPA, are those
areas that as a land class they have the highest degree -- highest
function and value, and therefore, that's why we've set aside the
NRPA definition, to the degree that you can utilize that as a
classification scheme. Certainly staff recognizes that within the
NRPA's you have the highest values and functions of wetlands
and therefore, this policy is set up to be able to recognize that.
And indeed we will have -- certainly 75 percent of our
wetland systems in Collier County are either going to be a NRPA
classification or conservation use classification. I think that's all
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January 19, 2001
important data and analysis to have in context to know that
when we begin to operate or begin to propose regulations that
are within the urban area, and recognizing that the urban area
has been impacted and altered and as -- when it gets to be
built-out, it's going to be very fractured, that the next set of
policies that we're really talking about in terms of the details
here for the urban areas, we're operating on a set of wetlands
that as a -- within a location are already compromised.
So I think it needs to be understood that the process that
we're proposing of staff is to recognize that the NRPA's will
indeed be one of the highest functioning classes of wetland
systems that the county has.
MS. BURGESON'. I'd also like to make a comment in regards
to what Erica Lynn had just mentioned regarding agricultural -- or
limitations of agricultural use on NRPA's or protected areas.
Just for some historical background that you probably don't
have information on, we used to, up until a couple of years ago,
limit agricultural use and all uses in area that was identified as
ACSC, area of critical state concern, that regardless of what the
use was, no more than 10 percent of the site could be impacted.
However, an amendment was made to that, after that being a
policy for about eight years, to support the state's position that
agricultural uses should be exempt from that. And then that was
placed into our Land Development Code. So it used to be that
only 10 percent of any site, regardless of the use, could be
impacted. And now that agricultural use has been exempted to
become more consistent with the state's rules.
MS. STUDENT: I just want to add to that, that matter was
litigated and went to the First District Court of Appeal in
Tallahassee, and the First District Court of Appeal upheld the
county and upheld the exemption and upheld the state's rule,
basically, as implemented through our comp. plan.
CHAIRMAN SANSBURY: Okay. Are there any other
comments on 1.1.17
MS. SANTORO: Just one more thing, and I won't belabor the
point. I'm just looking at Sarasota's and it says wetlands shall
not be filled, drained, dredged or converted to lakes or borrow
pits. I'm just not sure that's an agriculture use that we discussed
last week.
CHAIRMAN SANSBURY: It was a fish farm.
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January 19, 2001
Okay, 1.1.2. Discussion?
.3?
MR. COE: Yeah, I got one comment here. Third line there, it
says these areas shall be verified by a jurisdictional field
delineation. What is that? Who is that? Is that Corps?
CHAIRMAN SANSBURY: Corps or the District, I think.
MR. LORENZ: As a -- since this is responding to state, I
would -- my implication is it would be the state agencies.
Because we're ultimately responsible for state standards, not
federal standards.
That's not to say that we -- I know we do have a policy in
here that talks about having -- receiving all the applicable
permits, but I'm thinking of a state jurisdictional survey. MR. COE: Okay.
CHAIRMAN SANSBURY: Okay, .4?
MR. CARLSON: Just one minor comment on wording is that,
you know, past development hasn't altered all Collier County
wetlands. You might want to put the word some in there.
And, you know, you don't include size in your list -- in the
next sentence, type of wetland to be a functionality. And I'm not
recommending inserting the word size in there, because I
disagree with using size to classify these wetlands. I think it's
overweighted, and I think -- well, I know for a fact that the
smaller wetlands from a half an acre to five acres in size, if
they're hydrologically intact, and they are, and not invaded with
melaleuca, and they are.
And even the smaller ones of less than half an acre. If
they're hydrologically intact, if they're 100 percent functional, I
just don't understand why they would be automatically degraded
to the lowest class wetland we have in our classification system.
I mean, you know, one example is out in my neighborhood
next to the sanctuary, there was a little cypress dome that was
in that half-acre range, which was the only place we found these
narrow mouth toads. And somebody came in and excavated that
for material to put their house on, and they're gone and we've
never seen them since. So that was an important little place.
So I don't know, it seems like the wetlands ought to be
classified on their functionality. And that word keeps coming up.
But I think the key thing is whether it's hydrologic -- you know,
how has the hydrology been altered, and I think that's much
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January 19, 2001
more important than degree of melaleuca infestation.
MR. LORENZ: Ed, just to clarify, I understand the comment
with regard to size. But when you talk about the melaleuca
infestation, are you saying that if you do have a melaleuca
infestation, that the wetland is impaired? You're saying that a
melaleuca infestation impairs the wetlands? Is that what you're
saying?
MR. CARLSON: Well, if you look at the information that's on
the screen here, you're using melaleuca infestation as one of the
great indicators of altered hydrology, and it's not. That doesn't
always -- it's not always the case.
MR. LORENZ: Okay. Maybe suggest one thing here. And
where we have the words functional descriptions rely upon
measurements that indicate hydrologic impacts, that's up in the
paragraph, if we were simply to cross that sentence out, and we
recognize there are a variety of different impacts that we're
trying to identify within this classification scheme, then we're
simply saying that a melaleuca infestation is a degree of
impairment for the wetland, but we're not necessarily saying that
it's the hydrologic impairment. If we just took that sentence out
up top, would that -- would that be okay in terms of the premise
that we're proposing?
MR. COE: Why not take melaleuca infestation out
completely?
MR. LORENZ: In other words, you say that you could have a
MR. COE: Why is it even there?
MR. LORENZ: -- melaleuca infestation up to 100 percent and
it would not show an impairment of the wetland? I'm not sure
that's --
MR. COE: I don't know, I'm not a hydrologist, so I'm not
really qualified to say that. But it appears to me that if you have
melaleuca in a wetland area, that you can correct whatever
problems you have with a wetland that's caused by the
melaleuca by simply removing the melaleuca or destroying it.
Am I correct?
MR. LORENZ: Then basically the wetland -- the scheme
would be neutral, or degree of melaleuca infestation is
transparent to the wetland classification scheme, that's what
you're saying?
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January 19, 2001
MR. COE: Yeah. I mean, as long as it has the hydrology that
shows that it's a wetland, and it's obviously been impaired by the
standpoint you have melaleuca in there. But I would -- can't you
correct that by just removing the melaleuca?
MR. LORENZ: Barbara may want to touch -- weigh in here a
little bit. The -- did you indicate that the U.S. -- for the Corps,
that that's how they look at it?
MS. BURGESON: Right. For the Army Corps of Engineers,
exotics are basically invisible when they're doing a review for
wetlands.
For Collier County's review over the years, up until very
recently, we have required that unless it's a monoculture of
exotics, that it's still potentially viable. And what we had
defined in internal policy was that 85 to 90 percent or greater of
exotics would qualify as that monoculture. Just up until recently
we've been asked to consider 75 percent or greater.
MR. LORENZ: But that's not true --
MR. COE: Why don't we just consider it invisible for that
purpose and just say you're going to remove it. I mean, they're
going to remove it anyhow.
MS. BURGESON: It would be required.
MR. LORENZ: Remember that the Water Management
District -- and this is where you might want to have Tim Durham
come up and talk a little bit more about what the District is
doing. But the Water Management District though looks at a -- an
amount of melaleuca infestation in a wetland as a degree of
impairment for purposes of mitigation ratios. MS. BURGESON: Right.
CHAIRMAN SANSBURY: They do. And my question is,
again, what was brought up initially by Mr. Anderson. I know the
District, and maybe Mr. Durham can address it, the District has a
ratio number and how it's looked at. What we're saying is
something different here. So when someone comes in with a
District permit, then somebody -- we're going to have to have
somebody on staff, because our requirements are different from
the District's requirements. So why make the melaleuca --
MR. LORENZ: Well, Barbara may better answer this. The
county does require through the ElS statement to map out the
wetlands, to map out the FLUCS codes. And information in there
is -- already exists to be able to -- for staff to make that
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January 19, 2001
determination.
MS. BURGESON: Right. What we would do if we were able
to incorporate the different type of class wetlands is the
consultant would simply have to in the ElS up front identify what
class wetlands exist on their parcel. We would not necessarily
have to do anything differently than what the state is doing at
their level, because we typically don't even get the state permit
until the very last day before a project is permitted. So
everything that we would be doing is as we're currently
reviewing them. The only thing that would be different is that
the consultant would have to provide greater detail in identifying
what type of wetlands are on their parcel.
CHAIRMAN SANSBURY: Is there a scientific reason --
District of -- the District's 50, we're 75? Is that what the
difference is? I'm asking your comment --
MR. DURHAM: It's a graduated scale that starts at 50.
CHAIRMAN SANSBURY: Starts at 50 but it's a graduated
scale.
Is there a scientific reason that we have set the number at
75? I assume, knowing the District, that they've done some
research as to why they have the graduated scale. Maybe they
did it also. I don't know. You want to comment on it?
MR. DURHAM: Yeah, I would like to comment on that.
Again, they had many workshops, had some scientists come
in, there were some studies done in the Everglades that looked
at functionality of certain communities that had heavy melaleuca
infestation; they looked at the wildlife utilization of those areas
as one of the key components.
What they found was low levels of melaleuca infestation,
wildlife usage actually increased, because you had some -- a
little more diversity of vegetation types. But as the exotic level
increased, you started seeing a rapid decline in wildlife
utilization of those areas.
What they looked at was a correlation of wildlife and
melaleuca infestation levels. So that's where those 50 percent
came from. 50 percent, you started seeing a drop in wildlife
usage, at 75 you had a very large dropoff, and again, that's how
they structured that.
I'd like to correct one thing you heard before. It was implied
that the Corps doesn't look at melaleuca at all. They do not --
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January 19, 2001
that's not -- the presence of melaleuca does not determine
whether an area is claimed as a jurisdictional wetland or not.
However, in the permitting, the functionality of the wetland
system is affected by the presence of melaleuca or not.
And one of the problems I have with this ordinance is we're
going to try and come up with a one size fits all kind of simple
formula for things when we're dealing with stuff that people have
worked on for years. Something called the Wetland Rapid
Assessment Procedure, or WRAP, is used by the agencies to look
at the functionality of wetland systems. There's six different
parameters that are looked at, there's four from one to three.
You know, add it up, divided and everything else, you come up
with a numerical score. But the presence of melaleuca is a factor
in that analysis.
A wetland we save because it provides some very important
functions for all of us. And to the degree that those functions are
impaired, the value of the wetland declines.
MR. COE: What -- would we increase the value of the
wetland by the removal of the melaleuca? That was my-- MR. DURHAM: Yes.
MR. COE: -- question from the very beginning. If that
increases the value of the wetland, then why are we permitting
mitigation on that?
MR. DURHAM: I agree. And one thing to understand is the
physical act of getting the melaleuca out. When you have 10, 20,
30 percent melaleuca, you can get in there and remove that
melaleuca without a major disturbance to the existing vegetative
community that's there. Not a huge amount of soil disturbance.
When you start talking about large amounts of melaleuca in
a system, remember, you're talking about a lot of stems covering
a lot of areas. The effective way to get that out and remove that
seed source sometimes is just to clear the whole area out and
replant it from scratch.
And unlike the other coast, they have high layers of muck
soil and, you know, some very unique characteristics there. In
some other areas of the state, when you take out the vegetation,
you've still got a very unique piece of land sitting right there.
In a lot of places in our county, when you take all the
melaleuca out where it's heavily infested and you take the root
zone out, rip those out, you've really disturbed the soil. And what
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January 19, 2001
you have is a low point in the landscape, devoid of vegetation,
and you're really starting over from scratch. You have a wetland
at that point.
MR. COE'. Well, how are they removed?
MR. DURHAM: I'm sorry, where did that question come
from?
I'm sorry. It depends on how thick they are.
MR. COE: Why can't you just gird the trees?
MR. DURHAM: If you have -- again, the level of exotics in
there has displaced a lot of the native vegetation. If you gird the
trees, you still have the shading, all right, you still have the
decomposition, but you also have a rich seed source in that soil.
And unless you're going to be able to really re-flood that area
drastically, rehydrate it to a significant degree, you're going to
be dealing with that seed source forever coming up in there.
So it's just, you know, how far along the scale is that
wetland system being infested, and what degree is it going to
take to remove the melaleuca.
If you're at a point you have so much melaleuca that to
effectively get it out and remove the problem you've got a barren
hole in the ground, that's -- those are the points that sometimes
you look at that equation and say rather than doing that and
trying to recreate a wetland from scratch, maybe we look at
some mitigation or improving the function of a wetland system
somewhere else, that makes a little more sense. Particularly in
an urban setting you may have that problem. CHAIRMAN SANSBURY: Mr. Carlson?
MR. CARLSON: Let my try this one more time. I'm not doing
a very good job explaining myself.
There's no doubt that melaleuca infestation can degrade a
wetland. There's just no doubt about that. But when I look at
these wetland types on the left-hand column, it doesn't seem to
me like a way of ranking wetlands. You know, if all of those
wetlands are healthy, they're all ones. Because they're all -- it
doesn't matter; you go over to the right-hand column -- excuse
me, the hydrological connection, if you have a natural water body
right there, your first line, surface water body, perfect lake,
pristine, has a littoral zone, it's not connected, you give it a
lower ranking because it's not connected to something? That
doesn't seem to me like a justification for a lower ranking.
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January t9, 2001
Seems to me like your justification is okay, you look at
hydrologic alteration, based on historic water levels or whatever.
Okay, then you can start lowering the value of a wetland based
on its hydrological alteration.
Then you look at the melaleuca infestation. Is it five
percent, is it 90 percent, and that effects your ranking. And you
treat those two separately. And it doesn't matter if it's
connected or it doesn't matter if it's small. That's my bas -- did I
finally explain myself?
CHAIRMAN SANSBURY: Got you.
MS. LYNNE: Yes.
MR. LORENZ: Well, that -- so Ed, what you're saying
basically we'd say wetland type, class -- any wetland is a Class I.
MR. CARLSON: If it's not hydrologically altered or invaded
with melaleuca, some -- its functionality is terrific.
MR. LORENZ: Then it's a 1. It's a 1, unless ABC conditions
exist. Then it is a 2 or maybe a 3. Of course at that particular
point you could just break the classification scheme down to a 1
or 2. It's either a I or a 2.
MR. CARLSON: You could have a classification system that
says I through 10 --
MR. LORENZ: Yes, you could.
MR. CARLSON: -- and, you know, it's slightly hydrologically
impaired or it's really hydrologically impaired, or it has very -- it's
hydrologically impaired but no melaleuca yet. There are some
things like that that the melaleuca haven't gotten to yet, believe
it or not. So then you're -- that's what you're basing your rank on
is the hydrology and the melaleuca infestation. MR. LORENZ: I understand.
The other thing, too, I just want to just let the -- just make
sure we understand the framework here, because that comes
back to the discussion I had earlier, you know, do we want to
keep the framework and tweak it or do we want to throw the
framework out. And that's why we're having the discussion, to
go through this.
Remember that the -- remember that the classification
scheme is tied to the allowable impacts. So when we begin
talking about how we're going to revise a classification scheme,
then we're also back into well, what does a classification
scheme ultimately mean? And it means to what degree of
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January 19, 2001
impacts will we allow. So --
CHAIRMAN SANSBURY: Yes, ma'am.
MS. LYNNE: You want to --
MR. HILL: Go ahead.
MS. LYNNE: I agree with Mr. Durham in terms of moving
from specific regulations to functionality. Dr. Carter, as well last
night, when addressing the MPAA, talked about how the count in
general, we wanted to move from specific one size fits all
regulations to looking at the functionality and how things work
together.
In the information that we got from Ms. Linnan, in Sarasota
County comprehensive plan, there's three pages that describe
the functionality and management guidelines for wetlands. And
we may not want to accept them exactly as written, but they
talk a lot about the kinds of things you're trying to discuss.
The other point I think in putting this kind of information in
the policy is that the policy isn't just used by environmental
councils or environmentalists. It's always used by planners and
commissioners who don't have the ecological background.
So the value of having, you know, the seven points of what
wetlands do for the county and the many, many points of, you
know, what the best ways to manage them are in terms of the
functional qualities of the wetland I think are more important
than the size, which I agree with you entirely on, and the amount
of melaleuca.
CHAIRMAN SANSBURY: Mr. Hill?
MR. HILL: Yeah, I think it borders on some of the comments
that have been made. And when I first looked at this matrix of
classification, first of all, I think they're all, except for the very
small ones, Ed, they're all Class I to start out with.
The one that really bothered me was the flowway wetland
and the fact that you can take a viable flowway wetland and only
because of the melaleuca you cut the classification in half. It
seems to me that there are a lot of flowway wetlands with a lot
of -- reasonable amount of melaleuca in it that are still very
functional in that flowway system.
Now, I know that would probably come up more in the NRPA
area than the urban area, but we've got a -- if we establish a
matrix here, I think the implications carry over. So I guess I'm
hearing the same thing I'm saying, this melaleuca is not a single
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January 19, 2001
criterion to degrade a viable wetland, particularly in the flowway
wetlands.
MR. CARLSON: Well, I think it would depend on the degree
of infestation. I mean, if it's a flowway and it's a 100 percent
melaleuca flowway, I think it's degraded.
MR. HILL: To establish a matrix that says hey, 75 percent is
automatically Class II I think is a mistake.
MR. COE: You know, one way we may be able to solve this
is rather than saying Class I unless one of the functional
descriptions, just say Class I unless two of the functional
descriptions.
CHAIRMAN SANSBURY: Well, I think the downside of that is
the second one is the controlling -- I mean, hydrology, if there's
not water, it's not going to work. MR. COE: Right.
MR. HILL: What's the definition of hydrologic connection?
MR. LORENZ: We were talking there about a surface water
connection. That's not a groundwater connection, a surface
water connection, a connection to another surface water body.
MR. COE: See, that's the thing. I mean, you could have a
spring. There's a lot of other -- I mean, just groundwater.
Couldn't you? Why does it have to be connected to a stream or a
flowway or something like that to say it's a viable wetland?
Wetland's a wetland. It's a wetland.
CHAIRMAN SANSBURY: Are we not talking more about
hydrologic alteration? Isn't that what that whole conversation
has been we've had? Is it basically if a hydrology in the area has
been altered so there's no water to make it functional, it doesn't
function?
MR. CARLSON: Right. I would think that would be, you
know, a very important weighing factor, the degree of hydrologic
alteration. And it's not it does or it doesn't, but, you know,
there's a ranking --
MR. COE: Yeah, we have to define the functionality. I mean,
does it have frogs in it, for example? How many months out of
the year are there frogs in it? It's a tough one.
CHAIRMAN SANSBURY: What are we doing here?
MR. COE: You know, because we're so seasonal.
CHAIRMAN SANSBURY: Well, just to take a --
MR. LORENZ: There's one thing Barbara and I are talking
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January 19, 2001
about is when we talk about hydrologic connection, what we're
really talking about is a direct connection to a surface water
body. Let me do two things: If you have a -- if through the
delineation process, if you have an absence of a hydrology, it's
no longer -- it's not defined as a wetland.
MS. BURGESON: Right. I think what the board is talking
about is the concern of the connection and absence of hydrolog
-- maybe that second column ought to address the absence of
hydrological function or hydrological value, as opposed to
connection.
MR. HILL: Right.
CHAIRMAN SANSBURY: Do we agree on that, that we're
talking about hydrological function versus connection? MS. BURGESON: Right.
MR. CARLSON: Yeah, I think that's the legitimate weigh-in
factor. I don't think connection is that big a -- is that important
to be a major weigh-in factor.
MR. COE: So we change connection to function?
CHAIRMAN SANSBURY: I don't know if absence should be --
should it not be alteration of hydraulic function? MR. COE: Yeah.
MR. CARLSON: Or degree of hydrologic alteration.
CHAIRMAN SANSBURY: Degree of hydrologic alteration.
That sounds pretty good.
Okay, any other comments on the 1.1.147
MR. GAL: Did we make a decision as far as how we're going
to classify the wetlands?
MR. COE: We class them all Class I in the wetland
classifications. And the only changes are one or two things. And
we really haven't decided that yet.
MS. BURGESON: Let me see if I can understand what I just
heard you say is that you under this chart that we've got here,
you want to replace absence of hydrological connection with
absence of hydrological function?
MR. CARLSON: Something that would address the degree of
hydrologic alteration or impact or--
MS. BURGESON: Okay, so -- okay. And the greater than 75
percent melaleuca be removed, that column be removed in this
chart and then addressed in a different manner as a criteria or a
characteristic to address the impacts to the functionality, as
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January 19, 2001
opposed to being a separate --
CHAIRMAN SANSBURY: I would agree.
MS. BURGESON'. -- column of -- I'm not sure of the exact
language here, but this is what I did.
CHAIRMAN SANSBURY: Am I correct in the last one,
basically we're looking at the greater than 10 percent upland
vegetation, that would be a sign that the hydrology's been
altered and the upland vegetation is moving into the -- MR. CARLSON: I think.
MS. BURGESON: Yes. That's why that is in there.
MR. COE: Is 10 percent a sufficient amount to determine
that, or would 25, 30 or 40 percent be a better way to determine
that?
MS. BURGESON: I'm not sure.
MR. COE: I mean, in the big scale of things, 10 percent isn't
very much.
MR. LORENZ: Mack Hatcher isn't here. I believe that the 10
percent had some trigger point in some of the wetland
identification methodologies.
But I want to get back to the absence of a hydrologic
connection. Again, the classification scheme was predicated
basically upon a connection to a surface water body, a direct -- a
connection to the surface water body, not the hydrologic
connection, let's say, to groundwater. That's what the 10
percent upland vegetation was.
Scheme says wetlands that are, let's say, mangrove systems
or riverine wetlands are your first class highest value wetland
system. A wetland that is connected, not directly in proximity to
that surface water body, but is directly connected to those other
wetlands that are, that is the point of the -- when we say the
absence of a hydrologic connection, really it's more surface
connection there. That was the scheme.
If we want to go -- if we want to talk about a degree of
hydrologic connection, then -- and we don't worry about whether
those connections are connected, we don't worry about whether
those wetlands are connected to a surface water body, then the
10 percent upland vegetation is that measure of hydrologic
impairment.
So we can take off that second column, you know, if you're
not worried about classification having a discrimination between
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January 19, 2001
wetlands that have some connection to a surface water body and
those wetlands that are isolated.
MR. HILL: Seems to me I'd rather take off the first column,
this melaleuca column. Let me give this example. I've got a
50-acre wetland in a flowway which is serving as a very
important filter in the whole system, in addition to the hydraulics
of it. It's also serving a very vital function in the filtration
process, all right?
Now, I'm hearing -- is 75 percent melaleuca automatically
says that that function is impaired totally? MR. CARLSON: No.
MR. HILL: No. So I guess what I'm saying, that flowway
wetland to me that's greater than 75 percent should not be a
criterion that automatically says it's impaired. So to me that
greater than 75 percent ought to be the consideration of
melaleuca as an impairment to the hydraulic or hydrologic
function should come later in assessing that rather than in this
matrix.
MS. BURGESON: And what I've done with that is removed
that first column completely, greater than 75 percent melaleuca,
and changed the second column to say degree of impairment of
hydrologic function. And then the existence of melaleuca would
be considered in interpreting that degree of impairment.
MR. HILL: That's what I think --
CHAIRMAN SANSBURY: I think that sounds good. Okay.
Any other comments on the matrix? Okay, we've been out it
now for an hour and a half. Why don't we take five minutes to
give our court reporter a little break. How does that sound?
(Recess.)
CHAIRMAN SANSBURY: I'd like to get as much done by
noontime as we can, because a lot of people got other things to
do today. So let's move right along into 1.1.5.
Comments from members of the council?
MR. COE: Yeah, I've got a couple.
CHAIRMAN SANSBURY: Go ahead.
MR. COE: First line there it says from wetlands by strictly
limiting direct impacts. That's more of a happy to glad, but I
thought I'd throw that in.
Then farther down, paragraph one it says as dredging or
filling of or draining of wetlands. Dredging, filling or draining of
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January 19, 2001
wetlands. Sub-paragraph A, No. 1, where the applicant
demonstrates the direct impact is necessary for the minimal
reasonable use for the property. Is there a possibility to more
clearly define that?
MS. STUDENT: As Bill's looking over at me, that is coming
out of case law and it's -- you can't -- it's very hard to define
those terms, because you have to really look at case by case,
and it's not like as we've been talking about earlier one shoe fits
all. And it's how it works on a particular piece of property, so it's
very difficult --
MR. COE: Well, who's going to define it, though? Sure as
hell we don't want to go to the courts with it. Because then
we're just spending for attorneys fees and we're spending three
or four years. If we define it right up front, then it's very clear to
the attorneys, and they can advise their clients accordingly that
that would not be a reasonable use for the property.
MS. STUDENT: What I'm trying to explain to you is this term
comes from case law and it hasn't been defined in the case law.
The courts look at it case by case. And we'll take a stab at it
and I'll talk to Ms. Linnan to see what we could come up with.
But it's difficult.
MR. LORENZ: What we could perhaps do, Marjorie, is to put
some criteria for what we will look at as reasonable use for the
property.
Again, one little soap box here, and please, I beg your
indulgence, when we're crafting policies and legislation, you will
find yourself on the one hand looking for flexibility like
functionality and one size doesn't fit all, but on the other hand
when you want to know exactly what you're talking about, then
we have to be very specific and then that one size does fit all.
So this is the back and forth balance we're doing.
MS. STUDENT: The problem with it is what might be, you
know, fit for one property may not fit for another. And we don't
have the whole scenario. And even if we did, it would be hard.
You have to know everything. It's just very difficult. MS. BURGESON: Margie?
MR. COE: And a good example is our fish farming operation
that we turned down, that the planning --
MS. BURGESON: Marjorie, in the Land Development Code
under the ST section, where if you -- not -- regardless of the
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January 19, 2001
agricultural use, if you have a piece of property that's just ST and
we allow a minimal use on that parcel, right now that's 2,500
square feet by the Land Development Code, allowing that
minimal use.
MS. STUDENT: Well, I think there's such a wide range, I
would -- it makes me nervous about as Bill was discussing, you
know, you need some flexibility, and you don't need to paint
yourself in a box. It's something we can look at further, though,
so let's just leave it there, and we could look at it in the code. I'll
talk with Ms. Linnan and see what we come up with.
And I just would like to make a comment here about 1.1.5.
Throughout the term variance is used. And when you look at
what a direct impact is, is that's something that goes towards a
land use that's going to, you know, impact the parcel in some
way. Florida has a prohibition and a case law against use
variances, and I don't know that variance, that term exactly fits
the context either.
So I've discussed this with Bill and I think right now we're
somewhat at a loss for what word to put in there. But it should
not be variance, and I just wanted to make that a point.
MR. COE: Number A-2, it says where applicant
demonstrates the direct impact as necessary for access and no
reasonable upland alternative exists, semicolon, I'd like to add to
include adjacent property.
Now, the reason I say that, let me use an example that's
almost glaring. The Poinciana Country Club has a stoplight.
There's also a stoplight for the entrance to the Country Club of
Naples. We have two roads that run side by side, two different
stop lights. That's the height of eye watering stupidity. Where it
could be solved with one access, one light, and they drive down
the same road and they separate to go into the two different
properties. It could be solved very easily. But we don't do that.
CHAIRMAN SANSBURY: I agree with you, but I don't think
it's -- does the county not have a policy of linking, I think is the
term that's used, to try to encourage that between surrounding
developments and things of that sort from a planning function?
MR. LORENZ: I know that that is a goal to try to -- as certain
projects come forward, is to utilize current access to -- shared
access. But I don't know what the specific stringent standards
are --
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January 19, 2001
MR. COE: That's what I'm trying to get at is that we looked
at -- and I don't want to be specific, because I don't remember
specifically which ones I'm talking about. But I remember one
was going to alter a wetland, but they were going to try to
preserve it and they were going to have this scenic going into
their community.
CHAIRMAN SANSBURY: That was on Livingston Road.
MR. COE: That's correct, in the Livingston Road area. And I
don't remember what the -- even if the other project was bought
next to us. Wouldn't it be better to just preserve the wetland
completely, have access through the other property and let them
share that access, branch off to each one of the other properties,
where you have no access to the one, and the access to the
other, it's between the two properties.
CHAIRMAN SANSBURY: What if the other guy of the other
property decides he doesn't want to do that? MR. COE'- Well, the county can direct it.
CHAIRMAN SANSBURY: That's what the linking thing has
done. Again, I think that's a matter that should be in plan
approval and so forth and not necessarily in a wetlands
ordinance.
Whatever the pleasure is.
MS. LYNNE: Well, could you have a situation in which
somebody owns 10 acres of wetlands and 10 acres of uplands
and they sell it to their wife or their son or something else and
say well, we have to build over the wetlands because we don't
have access when they --
MR. COE: That's what I'm trying to get around is we don't
look at the big picture. We just don't do it. It's one of these
things that Lee County's going through right now. And they're
right, we don't look at it.
All this Livingston Road business, remember when we were
are all talking this? We were approving projects hopscotch
through this thing. Meanwhile, there's flowways, there's
flowways from east of 75 that goes through this area. We had
the road guy come in here and he said oh, yeah, we're going to
two-lane it. And if you remember, one of my comments was
everyone in this room knows we have to six-lane this road. It is
going to be a major thoroughfare in this county. Probably in
retrospect I'm sure within the next five years we're going to look
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January 19, 2001
at it and say no, we should have eight-laned it.
MR. LORENZ: May I make a suggestion, that we take
numbers one and two and kind of combine them and provide
criteria that would fit both. Because they're similar concepts.
And bring the criteria in that I've just heard the members speak
tO.
CHAIRMAN SANSBURY: Okay. Next?
MR. COE: One more comment.
CHAIRMAN SANSBURY: Go ahead.
MR. COE: On B-2, I also added at the end of that colon
there, or semicolon, to include adjacent land, about the direct
impact necessary, same type thing that you had -- CHAIRMAN SANSBURY: In the one and two.
MR. COE: -- in A-2. You just might want to take a look at
that again.
MR. GAL: I had comments on A-3 and B-3. And I just need
an explanation. Why does it even need to be there? Why should
an overriding public benefit get a break? The last, wastewater
facilities kind of concerned me. If someone wanted to build a
wastewater facility, why should they get a break from the
wetland regulations? I mean, I'd like to see the whole thing
deleted, I think.
MR. CARLSON: I second that. I think that's just an
incredible can of worms and a very dangerous thing. You could
justify draining or impounding anything for public benefit. If we
have an encephalitis outbreak and people want to get rid of
mosquitoes, we could just start draining everything for public
benefit.
We come out of a drought and we want more water supply
well, we can just levy everything and just this great public
benefit. So I think this is a really scary paragraph. I don't have a
suggestion for improving it. I'd like to see it deleted.
MR. COE: I would, too.
MS. LYNNE: I would, too.
CHAIRMAN SANSBURY: I think that's a majority.
MR. COE: Where are we now? We're going to --
CHAIRMAN SANSBURY: I want a question on 1.1.5. The
rationale between the five, the 25 and the 50 percents on the
classification, does that come from somebody else's rules?
Where does that -- what's the rationale, just briefly?
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January 19, 2001
MR. LORENZ: Quite frankly, staff kind of put it together. We
-- that was a consensus of our values.
MS. BURGESON: In our original discussions, we were
talking just Class I and Class II, five percent and 25 percent. We
expanded that to a Class III with a 50 percent or greater, taking
into consideration some of the concerns of property owners and
developers in being able to utilize more of their low quality
wetlands.
MR. LORENZ: The -- our advice from Nancy Linnan, counsel,
talked about a classification scheme or the ability to have a
diminimous impact for your highest functioning wetlands. She
noted that -- and I guess I kind of look for Marjorie here, she was
in the conversation as well -- that to some degree, you know, if
you look at the courts, what the courts may define diminimous as
one to five percent, quite frankly, that's a value judgment that
needs to be made after a consideration of the values functions of
wetlands, the public benefits, and also the regulatory costs.
So that's -- so that's a number that becomes a policy number
based upon -- I don't want to say it's arbitrary, but it's based upon
that kind of information being brought forward, and this is staff's
first proposal, first shot to say that this is our assessment.
Now, if we go to a classification scheme that -- because
what we've talked earlier in the first hour was possibly if we go
to maybe a classification scheme of a Class I, unless these exist,
then you're in Class II. You have to consider that into how we
would then factor the impacts for a Class I -- for a two
classification scheme versus a three classification scheme.
CHAIRMAN SANSBURY: Further comments on Page No. 4?
MS. LYNNE: Please.
CHAIRMAN SANSBURY: Yes, ma'am.
MS. LYNNE: 1-A-4, for single-family lots, a direct impact of
greater than five percent is allowed. Direct impact of greater
than five percent is allowed to provide for no more than one boat
dock. This sounds fine at first reading when you're thinking about
one family on a wetland. But if you've had -- bought out by a
developer and we have this wetland surrounded by homes now
and a dock for each home, is that a possibility under this
guideline?
MR. LORENZ: Let's -- the intent or the thought process that I
was going through would be for existing single-family lots that
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January 19, 2001
currently don't have a dock, that they have a riparian right, if you
will, to have a dock. I don't think that that's the case. If a new
project comes in to consolidate acreage, that should not apply to
that kind of situation. So maybe what we can simply say for
single-family lots already created -- and give an effective date.
MS. LYNNE: Okay.
CHAIRMAN SANSBURY: Further on Page 4?
MS. STUDENT: Mr. Chairman, I need to make a comment.
And Bill and I discussed this in the actual policy. It says Collier
County shall direct land uses. I think it meant incompatible is
supposed to be in there. And it may be in your copy, I don't
know. But in mine it wasn't.
MR. LORENZ: No, they still have the same draft.
Now, one thing I want to make sure it's clear, because some
people have asked me the question: What we're saying here is
that, just for everybody to know, is for a Class I wetland, we're
saying you can have -- you can have no more than five percent at
all, except for the single-family lot exception. To have any
impact at all, you have to come to the county in some kind of--
I'm just going to say public hearing process that the Board of
County Commissioners has to be open and upfront. And that was
the advice of our outside counsel. Just to make it clear.
CHAIRMAN SANSBURY: Okay.
MR. HILL: Just one quick. It goes back to the matrix, but
also sub-paragraph C, Class III wetlands. You take a Class I
wetland that's connected to a flowway, 10 percent upland in that
makes it a Class III, and then you can add 50 percent. That --
that's skewed, I think, from the standpoint of protecting a very
valuable wetland which has hydraulic connection. CHAIRMAN SANSBURY: Where are you now?
MR. HILL: All right, if you go to the matrix, wetlands
connected to flowway wetlands. To me that can have very
viable function, okay? It becomes Class III with greater than 10
percent upland, and then you can have a 50 percent impact on
that. That's one specific point in the area which I think needs to
be addressed.
MR. LORENZ: I guess that's what we have to do is when we
factor your comments in, in that we've got the domino effect of
the consequences, so if we create a different classification
scheme based upon your comments, then we have to revise what
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January 19, 2001
the impacts are. So I see what you're saying. CHAIRMAN SANSBURY: Okay, on Page No. 5?
MS. BURGESON: Is the board supporting keeping Class I, II
and III wetlands? Just a general question.
MR. HILL: You mean as having the three classifications?
MS. BURGESON: Yes.
MR. HILL: I sense that we do.
CHAIRMAN SANSBURY: So I think that was an affirmative.
MR. LORENZ: Okay, that's a yes.
MS. BURGESON: We're taking three out --
CHAIRMAN SANSBURY: On 5, the only question I have is
that again, dealing with the District a lot, the rationale between
the 25-foot buffer versus the 50-foot buffer. MS. LYNNE: Where is that?
CHAIRMAN SANSBURY: It's on Page 5, paragraph two. The
District permitting policy, I believe, is a 25-foot buffer, upland
buffer. And unless we have some scientific reason to make that
50 feet, I don't kind of agree with just increasing it because we
think it's better.
MR. LORENZ: Well, there -- quite frankly, there is a range,
when you get in buffering. I mean, there's a range of literature
that suggests up 100 feet or 300 feet under certain
circumstances. Staff proposed 50 foot.
CHAIRMAN SANSBURY: But the staff's proposes minimum
and the District proposes a minimum of 25. I guess my thought
is if there are scientific reasons for it to be greater than that, I
can understand that. But I don't see why one permitting process
says 25 feet and we just say well, the minimum should be 50.
MR. LORENZ: I understand.
MR. CARLSON: It's because we're trying to make the buffers
bigger.
CHAIRMAN SANSBURY: I concluded that much.
MR. CARLSON: When you're in the field, 50 feet is nothing.
CHAIRMAN SANSBURY: It's about twice as much as 25.
Okay. Any other discussion on page 5?
MS. LYNNE: I'd like to comment about the buffers. I'd like
to see, again, more functional descriptions here. Because the
buffer, you can define it with specific regulations, but the buffer
has specific purposes which even 50 feet in certain situations
might not accommodate.
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January 19, 2001
And again, this is from -- I don't know who this is from --
Marion County. They talk about protect conservation resource
area from intrusive or possibly detrimental activities, such as
light, sounds or other human activities associated with more
intense land use. So in other words, the buffer has to be able to
accomplish this. If you've got a 25-foot buffer and on the other
side you still have light and sound that's disturbing panthers or
whatever, or the sea turtles or whatever, then you need a bigger
buffer. So there's these two things.
And then another criterion about protecting the quality of
the conservation resource area from being degraded are
adversely impacted by activities such as stormwater runoff and
nutrient loading, hydrologic modification erosion, sedimentation
and so on. I'd really like to see language like that included.
Sometimes maybe a 25-foot buffer is okay, sometimes a 50-foot
buffer isn't going to be enough.
CHAIRMAN SANSBURY: That's exactly why I like to see a
25-foot minimum. I agree with you.
MR. LORENZ: May I -- here could be the suggestion. We
have a minimum of a 25-foot buffer to be expanded based upon a
list of criteria that would be more specific. But then of course
when we put that in, then we have to be much more specific in
what those criteria are and how they'll translate into linear
distances.
CHAIRMAN SANSBURY: What's the pleasure?
MR. COE: Then we may have to prove that in a court of law.
It's much easier to put the 50 feet in there and be done with it.
Or maybe 200 feet.
MR. HILL: Mr. Chairman?
CHAIRMAN SANSBURY: Just take it all. I mean, close the
gate, tell them they can't come in anymore and take it all.
MR. COE: That's called a gated community.
CHAIRMAN SANSBURY: I meant a gated state is what I
meant, or gated county.
MR. LORENZ: Also, realize too that what are you going to
allow within the buffer? We have a list of items that would be
allowed within the buffer, so there are -- there's certain things
that can be done in the buffer, such as passive recreation trails.
This is two (D) and then the list.
So the further out you go with that buffer to the wetland
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January 19, 2001
system, you're going to have -- you are allowed some uses. Now,
they're not -- you know, they're not a single-family home, it's not
a road. So again, there's that idea that the more you -- the more
you increase the distance, the more land you're taking up, you
may have some additional allowable uses in there for -- that you
can cite that's going to be required of the project anyway; i.e.,
open space, or your preservation areas. So it all works
altogether.
So I guess what I'm trying to say is that if we -- if we toy
with it in terms of a larger distance with more criteria, then we
need to address some additional abilities of a project to
accomplish some uses in there that may be a little bit more
impacting here, the further away you get from the wetland itself.
MS. LYNNE: Also, the difference would be on the land use of
the adjacent land. On -- the buffer for a golf course wouldn't be
the same as you need for a major industrial center, for example.
So I think that should be taken into consideration as well.
CHAIRMAN SANSBURY: Okay.
MR. HILL: Quickie, Mr. Chairman?
CHAIRMAN SANSBURY: Yes, sir.
MR. HILL: Go ahead.
CHAIRMAN SANSBURY: Go ahead, Mr. Durham.
MR. DURHAM: If I could just have a second. You know, I'm
listening to this, and you all are on the right track. The things
you're talking about are a lot of the things that are in the WRAP
functional assessment for wetlands. You know, you get a higher
score for a bigger buffer. You also account for what is the
adjacent land use. If your adjacent land use is real passive and
you have a smaller buffer, that's as good as having a big buffer in
the mall. You know, these are the kind of things that are in some
of this functional assessment methodology, and, you know, as I
hear this discussion, it's evolving into some of the same mindset
MS. BURGESON: Tim, could I ask you a quick question?
MR. DURHAM: Yes.
MS. BURGESON: Last time I spoke with West Palm Beach
and attended one of their workshops, the WRAP assessment was
not in use and could not be used, and they are going through a
process to completely replace that.
MR. DURHAM: Yes. And I am actually involved with that
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January 19, 2001
committee on a state-wide level. MS. BURGESON: Okay.
MR. DURHAM: And what is happening is the Corps of
Engineers, the water management districts, the DEP and some
other groups have been mandated to get together and come up
with one state-wide functional assessment methodology.
MS. BURGESON: Right. And the counties are working with
them as well.
MR. DURHAM: Correct. And the direction it seems to be
going right now is to take something very similar to this WRAP
analysis I'm talking about. The debate is really about
regionalizing it and having some more specific criteria, because
clearly Collier County and Flagler County have a couple of
different issues.
But the point is still the same. I think the goal of the county,
we're trying to find some way to have some quantifiable measure
of wetland protection. And maybe I just jumped to my overview.
I look at all this and say we ought to look at the wetlands in the
county. There are certain wetlands that are part of regional
flowways.
If you stand back and look down at the county from high up,
you'll see a series of wetlands that connect. You know, they
serve a purpose beyond their physical presence right there.
Those wetlands we ought to afford a different level of protection
to. And those could be quantified. You know, we could talk
about wetlands that are part of a regional flowway which convey
surface water during a particular storm event, whether it's the
three-year two-day event. I mean, you could quantify that and
come up with some measurable standard, and we could give
those some protection. Wetlands beyond that, in my mind, we
ought to be looking at the functional score of those.
And let me tell you what you look at with function is buffer.
The bigger the better. Wildlife utilization. You know, are -- is
wildlife using that? I mean, if a woodstork's feeding in a wetland
and some of the other functions aren't so good, that's a very
important wetland, you need to recognize that. Or you may have
a wetland that has good hydrology but maybe everybody does
ATC riding around it every day and it's just, you know, trash and
has very little wildlife usage.
You look at vegetation, overstory and shrub layer, you look
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January 19, 2001
at the specific hydrology of the wetland, which again you all
touched on quite appropriately, and you look at the water quality.
And what you look at the wetland is both before, you know, its
existing conditions, and after you have your proposed
development what would be there. And you set standards that
say you can only impact 50 percent of this and 20 percent of
that. What you may end up with on some projects is a wetland
the size of half this room that has to be preserved because it was
50 percent of what you had on that site. You may be surrounding
that with some really intense land use and you're back to the
what we used to call the postage stamp mitigation or
preservation where you've really not done yourself a good
service in the long run.
The functional system looks at it before and gives it a
certain score. It looks at your site afterwards and gives it a
score. So there's an incentive there for you to have bigger
buffers, you get bigger score.
If you have a lower score in your post-development scenario,
you've got to mitigate for that or make up for that somehow. And
that may fall as off-site or some other thing. So I think there's
some measurable numbers that can be done looking at functions,
which it parallels the discussion you're having up here today.
MR. LORENZ: May I make a discussion about this? Because
staff did look at the WRAP analysis as a possibility of using it as
a classification scheme.
There are a couple of problems, because we want to kind of
go in that direction. One was the WRAP report that we would
have utilized from the South Florida Water Management District
specifically states that it is to be used solely for developing
mitigation scenarios. So I had a hard time trying to overcome
that function and purpose of the report, drop it into this kind of
scheme that we're talking about today.
However, I think there's some possibility to do it if the
county, we were willing to invest the time in creating that kind of
scoring system for helping to classify and direct incompatible
land uses away from wetlands. So it has possibilities. But as
Tim has also noted, this has gone to the state, it's supposed to
come out in June of 2001 this year, but we were tasked with
trying to come up with something fairly quickly, and I didn't think
that we had the time to do it.
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January 19, 2001
Now, that could be another alternative that we could look
at, if Tim is willing to sit down with us and create another
scheme and put it -- to some degree we have this one here as
one alternative and that could be another way of proposing an
alternative for Collier County.
Recognizing, however, is when we begin doing that work
and you start to try to take that information that we're going to
have to be talking about how are we going to score a system for
melaleuca invasion, how are we going to score a system for
upland vegetation, how are we going to score a wetland for flood
conveyance or for water quality purposes. Because those are all
your functions. And then that requires us to create an indexing
system and scoring criteria that the County Commission then
would have to adopt to do it. But that's what we're talking
about, if we want to get involved to some degree a WRAP
assessment methodology.
MR. DURHAM: If I could just clarify for one second, the
WRAP was developed by South Florida because their field people
needed a way to go to look at wetland mitigation sites and
decide if they were working.
The reason the District doesn't use WRAP for permitting is
that their rules are written and they have to use their ratios. So
it's not that they don't think it's appropriate or don't want to use
it, they're just handcuffed at this point.
The Corps of Engineers has been using this WRAP for a
number of years. And frankly, we use it with Water Management
District, we put it with the application. They just say, you know,
we're not looking at -- they do look at it to decide where the ratio
is. So WRAP is fairly well accepted. And I'm telling you, there's
to be a new methodology in June which will not be radically
different. I'm not sure the county has to write their own WRAP
procedure. I think they could adopt this one and by reference to
the one that's adopted on the state-wide level at some point.
CHAIRMAN SANSBURY: Let me comment, if I could, just
soap opera just a second. This brings up something that -- I've
been involved in wetland legislation since '78, I think it was,
when I sat on the State CAC in trying to come up with some kind
of program, the definition, and we talked earlier, whether it's
hydrology, whether it's plants or whatever it is, and from that
being sat on a commission that was the first mitigation bank
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January 19, 2001
type group.
And really, we're looking at situations where you've got four
agencies, between the DEP, South Florida Water Management
District, DCA and the Corps. I just heard that they're coming up
with a new WRAP analysis, and I guess what I'm saying is that is
it the best use of the county's assets, or whatever you want to
call it here, to come in and again bring another layer on top of
that, which we've heard earlier, when we've got those agencies
doing it.
The weakness I see as a developer and as somebody that's
been involved with this, it's not the rules that are set, because
the rules are set out there. It's once the project is permitted or
once something is done and you go through the whole process,
it's the enforcement, it's the monitoring, it's making sure that
wetland that we've created over there that somebody doesn't
come in and alter something, they don't let the exotics come
back in, that it's built the way it's supposed to be built, those
type of things.
And should we be taking our resources and saying okay, the
Corps and the DCA and all of these guys have their permitting
process and we follow that and take our resources to make sure
that it's done?
MS. BURGESON: Let me just address that really briefly. I
think when we had our wetlands workshop, some of the major
concerns that came up with the other agencies were that in a lot
of cases their hands were tied in terms of giving definitive
protection to wetlands if the developer chose to impact them
and mitigate for them. So there were certain circumstances
where even the Corps and South Florida Water Management
District or DEP could not say even to a cypress head or a slough
system in certain cases that it could not be impacted.
And I think that was one of the major concerns from this
board that came out of that meeting was that we understand
that there are other permitting processes, but they are not -- they
don't always do what we would like them to accomplish. And
then going one step further on the --
CHAIRMAN SANSBURY: Well, I'm sure Barb, I'm sure that's
the case.
MS. BURGESON'. -- on enforcement, we don't have the legal
ability to enforce those permits. And that's something I know
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January 19, 2001
that we have had a problem with in the county, if they are -- if
there are wetlands under a South Florida permit, they need to
enforce that. If they're wetlands that are certain criteria under a
Corps permit, unless you want to adopt something for Collier
County that says that Collier County staff shall enforce state and
federal wetland permits, we currently don't, unless it's --
CHAIRMAN SANSBURY: I really believe, and Marjorie, I don't
know what's involved in something like that. But to me, that is
the weakness in the whole process now. And instead of
rewriting legislation and having -- going through a whole process,
if we could look into that at the same time. Because again,
Barbara's right, there are some areas I'm sure that -- but they're
few and far between. I mean, those processes between the
Corps and the District are pretty tight. But once again, once the
permit is issued, they don't have any staff to enforce it. I mean,
you go do it, people don't know what you're doing.
MR. LORENZ: Tom, we said this was one in the series of
many drafts. And the draft that we sent to Nancy Linnan initially
had simply a paragraph stating that the first thing to do, direct
incompatible land uses away from wetlands, you know, avoid,
minimize, mitigate, and a presentation of a federal and state
Corps wetland permit was tantamount to satisfying that policy.
That was the policy that I initially drafted in addition to other
policies here, and so therefore, we could defer to the -- those
permitting agencies to protect wetlands. Because as you heard
testimony earlier, we are not required to come up with a
permitting program at the local level.
The legal counsel was, Bill, that ain't going to cut it. You've
got to come up with very specific measurable criteria to say you
cannot impact this wetland or your degree of impact is limited to
this amount. And so that's what -- that's the advice that I'm
operating under and the structure for which we've created this.
There's obviously a lot of fine tuning and tweaking, but that's the
answer to your question that we posed to our outside counsel.
MS. STUDENT: I also wanted to state in that regard, for
purposes of how we got here, one of the recurring themes before
the hearing officer was, you know, the county is not planning,
they are deferring stuff to permitting, and they need to do upfront
planning. And that was a recurrent theme and -- you know, before
a hearing in May of 1998 -- or at the hearing.
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January 19, 2001
(Small break was held).
MS. BURGESON: I'd like to just interject something off the
subject, and that is that at the -- our February regularly
scheduled EAC meeting, at this point, there's only one land use
petition that's scheduled. So, if this board wants to or feels they
need to continue this discussion, even though that's a fairly
extensive project, that should be over fairly quickly. Even if it's
an hour or two, you could still at eleven o'clock go back to this
discussion if need be.
MR. SANSBURY: That sounds like a good idea. What does the
board think?
Okay, moving along. We're on Page 5. Are we ready?
MR. HILL: Just very quickly.
MR. SANSBURY: Go ahead, Mr. Hill.
MR. HILL: In 2(a) -- Bill Hill, I'm sorry -- the jurisdictional line,
that question has arisen during some projects.
How precise is that, and does the WRAP program define the
jurisdictional line?
MS. BURGESON: Collier County has, by law, deferred
determination of that jurisdictional line to South Florida Water
Management District, so it makes it -- an easy response is that
however they determine that, they will define that line, is how
we are required to accept it.
MR. HILL: Is it a very accurately defined line on paper?
MS. BURGESON.' Do you want to respond to that?
MR. DURHAM: Typically it is. I'm sorry, Tim Durham, for the
record.
It also should be noted that the State of Florida has a law now
that requires that all -- that there be one wetland definition for
the State of Florida, including for the counties. So, all counties
using the same one, it's defined.
Typically you get a signed off jurisdictional line from the
Water Management District. It either has to be surveyed or on an
aerial that's highly accurate and you can discern where the line
is,
So, if the Water Management District has approved the line,
you can be reasonably sure it's accurate.
MR. LORENZ: And I --for the record, Bill Lorenz. And I'd like
to add to is remembering our classification scheme, we're not
changing the definition of the wetland. We're simply trying to
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January t9, 2001
say, some wetlands are going to have higher values than other
wetlands and going to have higher degrees of protection. So, we still have the same definition.
MR. HILL: Another quick one. According to Mrs. Student's
comment, in Paragraph 6, is the variance -- should be taken -- the
term variance should be taken out of there?
MS. STUDENT: Yeah, that applies there as well.
MR. GAl.: The WRAP analysis is a method of -- it gives a score
to a wetland, basically. It gives a function -- it's a way of
defining the functionality of the wetland, right? MR. DURHAM: Yes.
MR. GAL.' And it gives it a score at the end?
MR. DURHAM: Correct.
MR. GAL: And is that like zero through a hundred or zero
through 20 or --
MR. DURHAM: It's zero to one.
MR. GAL: Oh, zero to one; point oh one?
MR. DURHAM: There are multiple parameters that you score
between zero and three just so you have a bigger range of scores
and half point increments. You do these different parameters.
You add all your scores up, divide it by the most scores you
could have had, and it kind of normalizes it back to a zero to one
scale.
MR. GAL: But then we're still -- we still have the task of
taking a certain range of score, say zero to point one and calling
that a class one wetland that still can't be developed on. The
WRAP analysis just says -- just gives a functionality of the
wetland.
MR. DURHAM: Correct.
MR. GAL.' And then it's our task still to determine how -- what
development can happen in that wetland. So, we can say there's
a wetland that's -- wetlands that score from zero -- I mean point
five to point one are class one and --
MR. LORENZ: Yes. There -- Bill Lorenz. As I said, we were
investigating doing it. The WRAP score has -- the WRAP analysis
has various components, like a wildlife component, a water
quality component and some other components as well. You
score each of those components, and then you come up with a
composite score.
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January 19, 2001
Now the question -- now the question comes is, you're going
to now have to make a policy decision for a number. Is it one --
is between zero and ten a class one? You're going to have to
define that. So, we're going to have to then take those scores,
and we're going to have to try to develop some rational basis to
say a score of greater than such and such is a class one.
Now, to some degree, we've done that in your proposal here,
but we've done it with very specific numerical criteria that you
can go out in the field fairly easy to determine. If you do a WRAP
analysis, the other thing as well as a classification for a property
owner, it's a little bit more -- I would say it would be more
difficult without a full blown assessment to try to understand
what classification your wetlands will be on-site.
MR. DURHAM: My concern with that is, as I look at the
definition of class one, two and three, I'm not sure I'm any better
off. You know, again, if somebody comes to me and hires me to
go look at their piece of property and give them some advice, I
would have a hard time, until we've had 50 projects run through
the system, with any certainty. Whereas with WRAP or some of
these other things, that -- I'm just more confident with that.
MR. LORENZ: I -- as I said, I was intrigued with trying to do it,
and the reason we rejected it several months ago, as I've already
put on record, I -- I -- I still have a professional interest in seeing
how that could be possible, and if Tim is willing to work with us
on something, I would make a commitment here that I would try
to work with that as an alternative scenario. We would still try
to work with this project that you have here, and then we can
see from two had different frame works maybe what is the best
and what people can maybe arrive at a consensus, and I would --
I would be making my own personal commitment to working with
Tim if he would be willing to do it.
MR. DURHAM: I would be very glad to do that, and I think
there's a good reason for that, and, again, remember, a property
owner in a regulated community, if I'm looking at going through a
multiple systems, you know, state, federal, county on any
particular project, the more they dovetail together or work
together, the better. It sure sits a lot better with people, and I
think as we wander off separate from that with any county
program, it is just -- has more problems, so, Bill, I'd be glad to
work with you, and I'm thinking some of this through, too.
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January 19, 2001
Listening to you guys talk today and what your thought process
is has really encouraged me more towards this route, I think, as
a possibility.
MR. SANSBURY: Okay.
MR. GAL: One more.
MR. SANSBURY: Yes, sir.
MR. GAL: In Paragraph 2, it says, a structural buffer shall be
required. Just what is a structural buffer? Is that vegetation or
is that like concrete?
MR. SANSBURY: Berm.
MR. GAL'- Berm.
MR. SANSBURY: A berm, that type of thing, vegetation.
Tim, what's a --
MR. LORENZ: It could be a retaining wall.
MR. DURHAM: Traditionally as the Water Management uses
that, it could be a hedge or a retaining wall, any number of
things, and that most often comes up when you have a
residential development up near a wetland.
There's been some problems in the past, you know, people
think their rear lot line is somewhere in the middle of the cypress
heads, you know, maybe they put a little extra dirt back there or
where the lawn clippings go or whatever.
So, it's a situation -- you may have a situation where there's a
wetland, and before development, it was a dirt road or
something. There was no natural vegetation, and you go to do
the project, you preserve the wetland, it doesn't make any sense
to preserve that dirt road that was there as a buffer, so you may
develop up to it. If you do that, you must show some structural
delineation between the backyard and the wetland, for example.
So, that's why it's not well defined, because it can be different
things and different situations; typically, a hedge, a small
retaining wall, something of that nature.
MR. SANSBURY: Okay. Page 5, anything further?
Hearing none --
MR. COE: Yes, I do have some. D(1) and (2) towards the
bottom of the page, I'd like to delete recreational shelters,
because that recreational shelter could be anything.
MS. LYNNE: I agree with that.
MR. COE: Anything from a restroom to a ping pong parlor; and
also, keep in mind that this could alter the water flow through
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January 19, 2001
that area. You know, if you build up a path, people aren't going
to want to walk in the mud. So, you build up a path with
whatever, and that alters the water flow through that area.
MR. LORENZ: Our -- our -- our vision in terms of the way this
has applied before has been elevated, elevated boardwalks. We
can add that phrase, elevated, but -- but it would be the -- the
direct impact of the wetland would be the posts, just some of the
boardwalk that --
MR. COE: Well, it says like nature trails, for example. On
number two, it says nature trails. Well, to me, a nature trail is
you put your boots on, you go out there and you walk through the
mud and water--
MS. BURGESON: Right, you could put at grade in there.
MR. COE: -- but to Barbara, it may be something like wood
chips.
MR.
MR.
SANSBURY: Wood chips should be okay.
LORENZ: Yes, we would permit wood chips.
MR. COE: No, because if it's built up, you build wood chips up
that high, you're talking about changing the water flow.
MS. BURGESON: Well, I think maybe what you can put in
there is at grade.
MR. COE: That's fine.
MR. SANSBURY: Great.
MS. BURGESON: At grade nature trails.
MR. COE: It works.
MR. SANSBURY: Okay.
MR. HILL: What's a mitigation area within a buffer?
I mean, if we got a wetland, somehow we've defined an area
which is called mitigation, and then we put that in the buffer?
MR. LORENZ: We propose that for up to class three impacts,
that you can have a -- you can preserve an upland area, and that
would mitigate for the impact in one of the class three wetlands.
I would envision that that upland area, that upland mitigation
area that you would set aside as a preserve area would certainly
be allowed.
Maybe we should add -- maybe we should add upland.
MR. SANSBURY: Moving on to Page 6, 1.1.6.
MR. CARLSON: I have a comment on --just a comment on
number one, mitigation. You're allowing purchase of wetlands,
mitigation, wetland destruction, then you've got a net loss of
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January 19, 2001
wetlands. You gain a little bit if those wetlands are disturbed
and you can restore them and enhance them and do something
positive with them, but just buying healthy wetlands to mitigate
for destroying healthy wetlands is a net loss.
So, if that could be somehow skewed towards gaining
something instead of losing.
MR. LORENZ: I hear you. This is where we -- in the -- I guess
in the process where developers are negotiating with federal and
state agencies for mitigation purposes, they may bring in a whole
different mix that makes sense for a particular site, and whereas
perhaps I have a little -- maybe -- I'm with you philosophically
there, Ed. When we start constraining the mitigation
requirements within our growth management plan policies, we
are really getting involved into that permitting program that Mr.
Anderson spoke earlier, because our constraints are going to get
so great in terms of the local constraints that it's going to really
constrain the ability for the applicant to work with the agencies
effectively, and we're trying to stay out of that negotiation
process. You know, maybe you-all may not want to as a council,
but that was -- that's, to some degree, the frame of reference
that I'm coming to it with.
MR. SANSBURY: My question is, again, it was brought up
earlier, the one-to-one basis versus the functionality basis. I
believe the Corps uses functionality, and I think South Florida is
moving towards functionality versus -- again, a different tact than
the other two major --
MR. LORENZ: I have a -- let me just add this, and it'd be great
for Tim to comment on. We talked of functionality of wetlands
before. I think sometimes we have a tendency to think of the
highest functionality or the only functionality of wetlands is for
wildlife utilization, but wetlands do provide for water quality, for
drainage, for ground water recharge, and, quite frankly, just by
creating or enhancing a wetland somewhere else by removing
Melaleuca, destroying a wetland on-site, taking away that flood
control, that ground water recharge, that water quality storage, I
don't know how -- I don't know how you can say you have a no
net loss of all the important functions for that wetland at that
point. So, this was our attempt to say, look, you've got to at
least provide the same amount of acreage without doing --
without putting into the mix the enhancement by exotics
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January 19, 2001
removal.
So, that's -- that's our minimum floor. Our hunch is that as
mitigation ratios are negotiated with the federal and state
agencies, typically there is on a land-to-land comparison, there
may be a greater amount of land that's mitigated for or -- or -- or
put in for mitigation, but that's where our concern was is that we
don't lose the land storage for purposes of water quality, ground
water recharge and flood control.
MR. DURHAM: If I could respond, please. Bill, you just
mentioned a second ago that the purchase of land is mitigation.
You didn't want to restrict that because that might get in the
way of what the state and federal programs -- negotiations. If
you then turn around and say a minimum one-to-one, you've got a
problem. There are wetland systems that are of such low
functional value that you are sometimes allowed to go below
one-to-one in terms of area, and, you know, the easy way to look
at that is, I can take you to some very low quality wetlands
somewhere, say an acre of this is a lot more valuable than an
acre of something that Ed has in the sanctuary. I mean, there
are differences, and you're right, most of the time there is more
mitigation acreage provided than impact acreage. That's -- that's
generally true, but there are exceptions to that.
When the mitigation is of such high value and when you --
there's assurances made or it's deemed -- I'll give you a good
example. Sometimes with mitigation and mitigation is done first
and is deemed to be extremely successful and it may replace
some very marginable wetlands somewhere else, in those cases
you can have less than one-to-one, for example.
My concern is, you're setting a minimum here, and I think
there are exceptional cases where you do go below one-to-one,
and while we log wetlands for all the range of functions they
provide, not all wetlands provide all those functions. Sometimes
a wetland happens to be a low point in the landscape that
puddles water at times.
Again, I just get very nervous with the minimum kind of deal
when other things are negotiated on a regular basis.
MR. LORENZ: Perhaps -- as I said, my concern was those
functions where you definitely need to have the land area. MR. DURHAM: Yes.
MR. LORENZ: If the language were to be such that those
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January 19, 2001
functions were not to be lost, those particular functions, then --
then -- then that may justify for an area basis that may be less.
That may be some upset language that we could consider.
MR. DURHAM: And I would agree with that. I mean,
functionally, again, I talked earlier about regional flow way,
maybe systems like that, there needs to be that kind of minimum
because the area is very relevant, but, again, across the board,
one-to-one minimum, I think there's enough exceptions to that
that are meaningful and ecologically valuable, but I don't think
we should go there.
MR. SANSBURY: Yes, sir.
MR. HILL: In Subparagraph 6.4, preferred location or the
NRPA areas, all the mitigation that we've had in our projects
have been to the Panther Island Mitigation Bank, but now we're
saying that we prefer that to be in a NRPA. Is that --
MR. CARLSON: It's in a NRPA. That bank is in a NRPA.
MR. SANSBURY: It's in a NRPA, yeah.
MR. HILL: Is that in a NRPA?
MR. CARLSON: Yeah.
MR. HILL: I thought it was up here -- it's all in -- 100 percent in
a NRPA.
I beg your pardon.
MR. SANSBURY: The only question I have is that, again, on
the Collier County end. Collier, Lee and Hendry, I mean, is that --
would that be more reasonable than saying just Collier? I don't
know.
MR. CARLSON: No, because I think you could get into some
completely different water sheds up in northern Lee County that
just wouldn't be doing our system -- maybe a hydrological Collier
County -- or hydrologically connected to Collier County,
something like that.
MS. BURGESON: The only concern that I think we've had as
staff regarding moving out of Collier County is that -- granted
there are some exceptionally high quality wetlands, for instance,
on the north side of Corkscrew that would be of high value, but
then you're getting into a subjective determination that you're
moving the protection and the quality of the wetland to the
northern edge of that system and displacing the protection to the
southern edge, which may not be as high quality, but Lee County
would also be protecting that northern. So, we've been trying to
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January 19, 2001
-- we try very hard to keep it in Collier County just so that we
don't lose the quality of the functions of wetlands in our system.
MR. CARLSON: I support that.
MR. SANSBURY: Okay. Why don't we do this then. Why don't
we -- we're going to agenda this workshop as part of the
February regular meeting. MS. BURGESON: Yes.
MR. SANSBURY: And why don't we pick it up with any
comments we may have -- further comments on what we've
already reviewed and pick it up at 1.1.7. Is that agreeable with
everyone?
Thank you very much.
MR. HILL: Rap your gavel.
There being no further business for the good of the County,
the meeting was adjourned by order of the Chair at 12:00 p.m.
ENVIRONMENTAL ADVISORY COUNCIL
THOMAS W. SANSBURY, CHAIRPERSON
These minutes approved by the Board on
as presented
or as corrected
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTING
BY: Cheri R. Leone
Dawn Breehne
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