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Clam Bay Marker Discussion Backup Documents 05/17/2011 Present: Staff : PUblic: eNVIROl!lKBN'r).L POLICY ADVISORY BOARD Minutes of November 24, 1992 David Addison David Maehr Robert Duane Gary Beardsley stephen Means Mike Davis David Land Larry Richarson Nancy Payton Kevin Dugan Mac Hatcher Gail Gibson Bob Blanchard Bill Lorenz Dick Hartwell Jennifer Staiger David Brutcher Barbra ?rynoski Fran Stallings Mercedes McCallen Doug Suitor steve Preston Virginia Corkran Chris Straton Sidney Maddox 1. Bill Lorenz be titled draft Minutes were distributed, put not approved. pointed out to ~embers that the minutes will until they are approved by EPTABo Under Old Business, Fran stallings discussed the proposed Clam Bay Ordinances to restrict motor driven vessels in the clam Bay system to areas not containing seagrass meadows. This is a recommendation of the Coastal Zone Management Plan which will also serve as a NRPAo Bill Lorenz made a presentation on high recharge areas. The interaction was based on a SFWMD model and data aathered over a 35 month period. The pre~p.ntation included a cost effectiveness discussion. A brief presentation by steve Means discussing the possibility of increasing recharge on site was r,equested for the DeC,. 7th meeting. EPTAB was also requested to be prepared to recommend a policy statement by Jano 93. Bob Blanchard, Long Range Planning, gave a briet presentation on the benefits of using the GMP Amendment process to adopt the proposed NRPA's. . 3. Under New Business, items recommended for discussion at the December 7, 1992 meeting: a. steve Means additional costs to develop for increased recharge. b. Habitat Protection Ordinance changes made by legal department. ,.- . Seagate Property Owners Association, Inc. P.Oo Box 630044 Naples,FL 33963 RECEiVED December 5,1992 DEe 0 9 1992 .tvlr. Michael J. Volpe. Chairman Board of County Commissioners Collier County Government Center 3301 Tamiami Trail East Naples. FL 33%2 Soard of Couilty Commi 55 ioners Re: Coastal Zone Management Plan Dear Chairman Volpe: You may r(X'.aJl at ill" June 3rd Commission Hearing on the Coastal Zone Management Plan there was lengthy discussion on elements concerning boating on the Clam Bay system. The residents of the Seagate cOIDIllunity were alarmed and angered that County staff was proposing to prohibit motor boats in the bay. cutting off access to the Gulf of Mexico. Fortunately. you and your fellow Commissioners agreed the plan was overly restrictive and instructed that the plan elements provide for continued motor boat access through the Clam Bay I Clam Pass system. You also told staff to keep us advised of further developments on this item. Since the Hearing I have not received any calls or correspondence from the County staff so I could keep Seagate residents advised on an issue of extreme interest . At least that was the case until Friday (December 4th) when I carne across the a copy of the November 24.1992 minutes of the Environmental Policy Advisory Board. The minutes note (item #2) that Fran Stallings is presently working on Clam Bay Ordinances that will effect Seagate. It appears to me that the County staff has shown little desire or sensitivity to work with our S~ate community to create the plan or ordinance that achieves a balanced and mutually beneficial end product We are eager to be part of the solution and would appreciate the opportunity to sit down with the staff to discuss..... before the "omelette is made". Very truly yo=. ~2~~~ reply: 5182 Sanddollar Lane,Nap1es 33940 263-3346 home. 947-2600 work John C. Norris District 1 Michael J. Volpe District 2 Timothy J. ConstanUne District 3 Burt L. Saunders District 4 Bettye J. Matthews District 5 ,rJ8o-czn1 o-/~/deF ~tt/tt? ~/?Ylu:Jjioae/'J 3301 East Tamiami Trail. Naples, Florida 33962.4977 (813) 774-8097. fax(813) 774-3602 Mr. David Wo Caldwell President Seagate Property Owners 5182 Sanddollar Lane Naples, Florida 33940 I E~'Vi"Ch!iENTAL SEiiViCES ROUTING ,Dt,TE / ;::/; ? /l L i -- I December 16, 19*'CT/:J,^! - fAr- ~ J-t~J':'c:'/'c,- Ii'ire rOw tj:t;;) v ~ / I ~j A //~ Association, Inc. "iLC: _-----=td~~ ~;}/IYI ~ -\' ;:;vv'~<.c I ,r ~_ , ,,0' ' .:v- , V. .' .,';.' -, /' . v> -'y1 __:' f / .' /"~-- )i..-l{1 ~L-- Dear Mr. Caldwell: Thank you for your recent correspondence with suggestions in regard to the Coastal Zone Management PIano As your Co~~issioner, I make it a priority to assist in any way possible within the jurisdiction of my elected office. {Lf .. I/~ By copy of this letter, I am asking Environmental Services Administrator Bill Lorenz to respond to your letter and the concerns you have expressedo Again, I appreciate you bringing this matter to my attention. If you believe my office can be of further assistance, or if you need my help with any other matter, please feel free to call my office. (v"ery (t, ru;tr yours, " -4L\JJ " "~,..;J H - "";4-- c T-f. I ! \ G Michael'JJ Volpe, Chairman Commissioner, District 2 MJV:cfd cc: Administrator Bill Lorenz Submitted to the Clam Bay Waterway Markers Discussion Group by the Sierra Club, Calusa Group 5/17/11 UPDATED RECOMMENDATIONS FOR CLAM PASS/CLAM BAY WATERWAY MARKERS BENEFITTING SAFE RECREATION COMPATIBLE WITH NRPA* DESIGNATED USES: 1) Retain the existing Clam Pass Canoe/Kavak Trail and add one or two additional canoe trail markers within Clam Pass. This adds benefit for those paddlers who rent kayaks/canoes from Clam Pass Park concession and then launch within Clam Pass. This retains benefits that the existing canoe trail provides thousands of Collier County residents and supports eco-tourism for visitors to Clam Pass Park from other areas. Improvement to the existing canoe trail is compatible with the designated uses of the Clam Pass/Clam Bay waterways, mangroves, ete. as conservation/preservation of habitats that support wiidiife and recreation that's compatible with the NRPA Preserve. Z) Imolement the addition of NEW Information Markers to better orotect ALL Clam faillClam Bav waterwav users. Examples: Local Knowledge Required - Shallow Waters Keep Alert - Watch Out for Boaters and Swimmers. Shoals/Tidal Flats Seagrass areas. 3) "Status Ouo" remains for the Seagate residents with motorboat use that's limited by the natural conditions of the Conservation/NRPA Preserve waterwav2. Status Quo access to the Gulf of Mexico would continue through the small dynamic tidal exchange of Clam Pass. Status Quo access to shallow lagoons and creeks would continue through existing meanders, tidal flats, shoals, ete. and avoid damage to mangroves and seagrass. 4) All permits authorizing activities within the Clam Pass/Clam Bay system will be consistent with continued restoration and maintenance of the mangroves ecosystem. A healthy sustainable mangroves ecosystem for wildlife that provides compatible safe recreation and eco-tourism is the goal for recreation related projects.. SUMMARY: Waterway markers are for the safety of ALL waterway users while being consistent with the environmental restoration permits which authorize construction/maintenance of channels within the Clam Pass/Clam Bay Conservation NRPA Preserve that are done for environmental restoration and sustainabiiity of the mangroves and associated wildlife. Waterway markers improve safety for recreation that's compatible within the Preserve. Both uses support eco- tourism. *NRPA stands for Natural Resources Protection Area designation (applied to Clam Pass/Clam Bay Coastal Barrier Resources in 1995 by the Collier County Commission). ~ 6B . Frida" Ma, 13, 2011 . Naples Dan, News EDITORIALO 'I Guest commentary Push for Clam Pass markers isn't about safety By Ted RaIa, M.D. Pelican Bay The preparation for the 10-year Clam Bay Restoration and Management Plan permit, like all Pelican Bay Services Division (pBSD) meetings, was publicly no-, ticed and open to all, in- cluding Seagate residents. This took place from 1996 to 1998. Consultants at first sug- gested that power boat- RaJa ing should be restricted to south of the public boardwalk. Seagate residents protested and the boating rights of Seagate were maintained with a re- quirement that there be "idle speed" and "no wake" signs appropriately placed. However, the plan clearly stated there would be no increase in navigation and the status quo would be maintained. In 2008, when all were rejoicing over success of the plan, Seagate residents pro- tested that the pBSD was not in compli- ance because it failed to install required lateral red/green navigation markers. They interpreted the following clause in the permit: "Finally the main channel will be marked in accordance with the requirements imposed by the U.S. Coast Guard to ensure that those who use the system clearly know where the channel is and the prohibitions against operating their watercraft outside the same," to mean that red/green navigation markers had to be installed. This clause refers to information and regulatory signs, not to lateral navigation signs. Lateral navigation signs do not prohibit you from doing anything. They only mark a safe channel. Unfortunately, the county supported Seagate, and when the pBSD insisted on the correct interpretation, the county removed the pBSD from responsibility for Clam Bay.. Back in 2000, the pBSD requested a permit to install the canoe trail markers and said in a letter to the U.S. Army Corps of Engineers: "The reason for the permit is twofold. First is to provide a marked trail for the canoers and kayakers that frequent the area. The mangroves can be confusing and having a numbered line of sight system of markers will help the paddlers to travel through the area in a safe and comfortable manner. These markers will also delineate the dredged portion of the trail from Outer Clam Bay north to the pass. "Marking this dredged channel is a commitment of the Clam Bay Restoration and Management Plan which was autho- rized by the corps and the Department of Environmental Protection, and these markers will fulfill that commitment." The permit was issued in March 2000 and states: "All canoe markers authorized under this permit must be maintained in proper condition at all times. Collier County must immediately report and correct any discrepancies ....It . In 2008 the pBSD noted several signs were missing in the circuitous channel and others were poorly visible due to Corrosion. The pBSD ordered and paid for 32 new signs. The county forbade their installation in violation of the permit. In a DEI' memorandum of Tune 2008 to the coa~tal zone manager, the county is advised: "The required signage intended by the permit is specified within the permit, and it is clear that the intent of the permit was environmental enhance- ment rather than navigational enhance- ments." In May 2009 the county attorney sent a letter to the corps stating that the pBSD is a dependent branch of Collier County and as such is not authorized to bind the county commissioners with regard. to any issues. The county wanted to effectively prevent the PBSD from providing factual information to the authorities. However, this did not prevent individuals from writing, and in Tune 2009 the co.rps re- sponded as follows: "Yes, the placement of the non-lateral information signs and the canoe trail markers by the pBSD does satisfy the requirement referred to in the Department of the Army permit. No, the corps' definition of navigability does not require the placement oflateral navigation signs that denote safe passage as defined by National Oceanic and At- mospheric Administration (NOAA) for navigability." In spite of this clear statement by the corps, in March 2010 Collier County again requested authorization to install red/green dayboard markers and buoys "to come into compliance with the U.S. Army Corps of Engineers permit." This is not about safety. If Seagate residents were concerned about safety, why would they have NOAA remove the designation "non-navigable" from the Clam Pass chart? Does encouraging more power boats in an area Cdesignated for passive recreation promote ~afety? This is about getting a deep water channel to the Gulf and .quadrupling the value of Seagate homes. Why is the county supportive? The county would like to convert this conser- vation gem into a sand pit. If the county installs the red/green navigation signs, it would be responsible for maintain- ing safe passage by dredging a channel with a minimal draft of five feet at mean low tide. The authorities, not Pelican Bay, will not allow red/green navigation markers. Now the county wants to claim when- ever the depth of the pass drops below five feet it must dredge for the health of the mangroves. The claim is false. Raia is a retired Anny radiologist. He com- mandod the 46th Combat SUpport Hospital in the first Gulf War and was chairman of the Department of Radiology at Walter Reed Anny Medical Center, where he had trained. He retired in 1997 and lives in Pelican Bay. TIMElINE ESTABLISHING DESIGNATED USES FOR CLAM PASS/CLAM BAY PRIMARY DESIGNATED USE related to the purpose and function of the Clam Pass/Clam Bay area for Conservation, Preservation, and Protection of natural resources therein was established by the following~ 1) In the 1970s-Collier County enacted zoning ordinances for the Coastal Area Planning District. Ordinance 76-30 recognized environmentally sensitive lands (including wetlands. estuaries and water areas) and zoned them as Sensitive Treatment (5T) with a process to discourage development by allowing increased development of uplands IF 5T areas were converted to Conservation/Preserve areas. The Pelican Bay Planned Unit Development! Development of Regional Impact (PUDjDRI) proceeded pursuant to having obtained CONDITIONAL APPROVALS (1977) that allowed 98 acres of coastal mangroves wetlands to be filled for use in the development by a required conversion of the remaining 570 acres of 5T lands into a Conservation Area. The requirement for the remaining 570 acres of undeveloped Clam Pass/Clam Bay coastal barrier segment to remain in its natural condition and prohibit it from further development resulted in the Pelican Bay Conservation Area being established by a Granted Deed with attached covenants and restrictions. It specified that 35 acres at the South end of the Conservation Area would become a public park (accessed through the preserve) that included a 3/4 acre public beach. Another five acres at the North end of the Conservation Area was also specified for a park to provides public beach access. 2) Between 1981 and 1982- Related to State and Federal approvals required for the Pelican Bay PUD/DRI, a Department of Army Permit (79K-0282) authorized fill of 98 acres of Clam Pass wetlands that was predicated on Special Conditions of the remaining undeveloped 570 acres being converted to conservation/preservation in perpetuity. It specified inclusion of Upper, Inner and Outer Clam Bays, their connecting creeks, Clam Pass and surrounding mangroves forests. It also prohibited dredging of Clam Pass except to keep it open to the waters of the Gulf of Mexico. 3) In 1988 - The undeveloped segment of the Clam Pass coastal barrier island (Conservation Area within Pelican Bay PUD's boundaries) was recommended to be added to the Federal Coastal Barrier Resources System (CBRS) as an Otherwise Protected Area. It was originally approved and recorded as FI.-64P by the US Congress in 1988 and 1990. Additional related references in items 11-12 below. 4) In 1991- The Collier County Natural Resources Department (NRD) Coastal Zone Management Plan (CZMP-1991) condensed a series of NRD Technical Reports into a comprehensive coastal zone planning guide. Various chapters of it report the need to protect natural resources in the Clam Pass/Clam Bay Conservation Area. The CZMP-1991 was adopted by the BCC as a resolution and later by ordinance during 1992 and 1993. Draft ordinances were recommended to the BCC by NRD staff to be consistent with specific CZMP-1991 sections. Several included environmental protections in Clam Bay. 5) Ordinance 91-111 created the Pelican Bay Municipal Services Taxing and Benefit Unit (MSTBU) in conjunction with the Pelican Bay Services District (PBSD) and an Advisory Committee with dual role for the both entities. Among the Pelican Bay MSTBU/PBSD responsibilities and benefits is the maintenance (and funding for maintenance) of conservation and preserve areas within Pelican Bay boundaries. A boundary map was attached which included the Conservation Area of the Clam Bays, connecting creeks and surrounding mangroves forest. This ordinance was later repealed and replaced by successive ordinances that described the Pelican Bay MSTBU /PBSD having the same purpose as earlier ordinances, but that it was changed from an Independent District to a Dependent District. 6) In 1995- The BCC approved the NRD's recommendation to adopt Clam Bay as its first Natural Resources Protection Area (NRPA). The BCC action stipulated that the Clam Bay NRPA had the same boundaries as the existing Conservation Area within the Pelican Bay PUD. 7) Consistent with item # 6 above, Collier County's Future Land Use Maps adopted the additional NRPA overlay onto the Conservation Area overlay established by Collier County's acceptance (as Grantee) of the 1982 Conservation Easement Deed from the developer/owners of the Pelican Bay PUD/DRI. 8) The Collier County 1995 Manatee Protection Plan (MPPl stated Clam Bay had the richest seagrass beds in Collier County (critical for manatee survival). Accordingly, the MPP recommended an Idle Speed/No Wake Zone throughout the Clam Pass waterway system. 9) In 1998, Joint Coastal UC) permits by FDEP and the USACE authorized the County's Pelican Bay Services Division (PBSo) to begin long-term restoration of Clam Bay. The Clam Bay Restoration and Management Plan was attached to the JC permits.. The permits, management plan and implementation of authorized projects were funded by voluntary Pelican Bay property assessments, an agreement by the WCI firm (successor to original Pelican Bay developer/owners) to contribute up to one million dollars for Clam Bay restoration, and included limited transfers of funds from the Collier County NRD Water Quality program and Exotic Vegetation Removal program (Fund 111). 10) In 1998, a Florida Administrative Court Case No. 98-0324GM ruling by Judge Meale interpreted certain Conservation and Coastal Management Elements in Cot Her County's Growth Management Plan that NRPA's required u.neQlJivocal nrntpctinn of hahitats which supported existing and potential uses within NRPA areas by wildlife. 11) In 2005 there was clarification of the boundaries of the Conservation Easement within the Pelican Bay PUD by the Collier County Natural Resources Department (NRD) Staff to US Fish and Wildlife Services (USFWS) for the Federal CBRS Clam Pass Unit fL 64-P. 12) On October 15, 2008, Public Law 110-419 adopted Florida Congressman Connie Mack's recommended corrected map for Clam Pass unit of FL-64P. The corrected USFWS map identified the CBRS Clam Pass unit FL 64-P to be located entirely within the existing boundaries of the Clam Bay NRPA and Conservation Area as the Otherwise Protected Area (by Conservation Easement Deed) within the Pelican Bay PUD boundaries. SECONDARY DESIGNATED USE related to a OJHPose and function for Passive Recreation was established bv the followina: 1) The 1991 Coastal Zone Management Plan's (CZMP-1991) Inlet Management chapter had a substantial section describing Clam Pass and its bays, ete. It recommended no motorized boating as a protective measure for the natural resources within those waterways. 2) In 1995, the Collier County Manatee Protection Plan was adopted and sent to the State. It reported on Clam Bay's seagrass beds, canoe docks, very limited motorboat use, and conservation easement restrictions. The MPP recommended against any marina facilities ever being permitted in Clam Bay. 3) In 1995, "The Clam Pass Inlet Management Plan" was completed and Interim Report NO.1 was submitted to FDEP It stated Clam Pass was essentially non-navigable and small boat boats had limited use of it. 4) Joint Coastal UC) permits were approved in 1998 by FDEP and the USACE for the County's Pelican Bay Services Department (PBSD) to begin long-term restoration of the Clam Bay mangroves forest. The 1998 JC permits had an attached Clam Bay Restoration and Management Plan, by Collier County Commissioner Hancock's Mangrove Task Force. 4) In the year 2000, the Clam Pass Canoe Trail permit was approved by the Florida Fish and Wildlife Commission (FWC). PBSD records indicate that such markers were consistent with the Clam Bay Restoration and Management Plan tp mark the dredged drainage channels in a manner that benefited recreational use of the Clam Pass/Clam Bay waterways consistent with preservation and protection of the Preserve to not increase motorboat usage in it. 5) In 2010 a Consolidated Denial from Florida Fish and Wildlife Commission and FDEP was issued that rescinded an earlier temporary approval of lateral aids to navigation because bathymetry data was recognized to show the waterways were too shallow for a motorboat navigation channel. INnnFNTAI IISE of Clam P~""/c:tam B~v for motori7pd ho~ting i" ~npMent bv ~forp-mpntionpd item" rflfflrpnring r.ld.ma.t:'i ~nd "flcnnd~r")( p"tabli"hpnlJ"p" <lnd <lndition~lIy pvidencpd hv thp following.:. 1) On February 2,2000, Collier County NRD Staff responded to Seagate property owner David Buser's inquiry on dredging and installation of navigational markers in the Clam Bay system. The NRD letter informed him that Clam Bay ranked low on all channel siting criteria, was not the type of area, had a conservation easement that prohibited pilings and signage except some warning signs, and that dredging is prohibited in Clam Bay except at the pass to maintain a connection to the Gulf of Mexico. 2) Collier County Boat surveys conducted periodically for the Parks and Recreation Oept. consistently reported few motorboats in Clam Bay (docked in Seagate subdivision) Less than ten boats were identified at Seagate docks in each survey. Mainly kayak and canoe use was consistently reported in Clam Bay. The 2010 boat survey identified no changed boat use in Clam Bay from prior reports.