The URL can be used to link to this page

EAC Agenda 07/03/2002 ENVIRONMENTAL ADVISORY COUNCIL n AGENDA July 3,2002 9:00 A.M. Commission Boardroom W.Harmon Turner Building(Building"F")—Third Floor I. Roll Call II. Approval of Agenda III. Approval of June 5,2002 Meeting Minutes IV. Land Use Petitions A. Special Treatment Permit No. ST-2194 "Center Point" Section 3,Township 51 South,Range 26 East B. Planned Unite Development No. PUDZ-2002-AR-2491 "Arrowhead PUD" Section 31,Township 46 South,Range 29 East Section 6,Township 47 South,Range 29 East V. Old Business VI. New Business: A. Discussion Item: Beach Raking B. Amendment to the EAC Ordinance to delete the annual reporting requirement VII. Council Member Comments VIII. Public Comments IX. Adjournment ********************************************************************************* Council Members: Please notify the Current Planning Secretary no later than 5:00 p.m. on June 26, 2002 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a petition(403-2400). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made,which record includes the testimony and evidence upon which the appeal is to be based. a June 5,2002 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida,June 5,2002 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 9:05 a.m.in REGULAR SESSION in Building"F" of the Government Complex,East Naples,Florida,with the following members present: CHAIRMAN: THOMAS SANSBURY ERICA LYNNE ED CARLSON ALEXANDRA SANTORO KEN HUMISTON ALSO PRESENT: Barb Bergeson, Patrick G. White,William Lorenz Jr., Kim Hadley, Mac Hatcher, and Majorie Student Page ] t 2 June 5,2002 ENVIRONMENTAL ADVISORY COMMITTEE County Commission Boardroom Building"F", 3rd Floor 3301 Tamiami Trail Naples, FL 34104 9:00 AM MINUTES June 5,2002 Chairman Thomas Sansbury called the meeting to order at 9:05 AM ATTENDANCE: Members: Thomas Sansbury, Erica Lynne, Ed Carlson, Alexandra Santoro, and Ken Humiston -Michael Coe, William Hill, and Alfred Gal have excused absences Collier County: Barbara Bergeson, Patrick G. White, William Lorenz Jr., Kim Hadley, Mac Hatcher, and Majorie Student II. APPROVA OF AGENDA: -No additions, deletions, or changes III. APPROVAL OF MINUTES: May 1, 2002 -Alexandra Santoro provided a correction: Page#2, 3rd paragraph from the bottom, it should read: "Carol stated they are in a position to protect" -Mr. Carlson moved to approve with this change, Seconded by Alexandra Santoro All in favor—Passed Unanimously IV. Land Use Petitions A. Conditional Use Petition No. CU-2001-AR-1912 "Immokalee Road South Project" Sections 29,30,31, and 32, Township 48 South,Range 26 East -Mr. White swore in all those testifying Ray Bellows, Chief Planner with the current planning staff. Petitioner is requesting conditional use 17 of the agricultural zoning district, they are proposing 2— 18 hole golf courses on 557 acres (located on the South side of Immokalee Road, approximately 4 miles East of Collier Blvd.). The project is located on the agricultural mixed-use district on the"Future Land Use Map". This area allows for certain non-residential uses, including recreational uses, allowed prior to the final development order of the Florida governor and the cabinet. The petitioner entered into a settlement agreement that would allow for the continued development of Twin Eagles on the South Side of Immokalee Road, subject being limited to golf courses and not allowing it for residential uses. Staff Page 2 � I June 5,2002 has determined that the project can proceed and is consistent with the growth management plan. Mitch Hutchcraft,with the Bonita Bay Group, gives a brief introduction. States they appreciate the comments from EAC on the previous meeting and they did go back and made changes to their site plan to incorporate a greater amount of preserve and appreciates the opportunity of Mr. Carlson and Mr. Bower coming to the site so they could show the detailed site conditions. He states that the addition of new preserve areas roughly corresponds to cypress areas shown on the site. They will also be preserving the area between the golf holes as indigenous areas within the facility. In order to accommodate these changes they have added a five-acre piece of land. Steve Shaw,with Wilson Miller testifying on behalf of the petitioner. States that changes to the master concept plan, are resulted from Bonita Bay Group expending additional funds to tighten and define the sight plan. He shows the revisions on the master concept plan; the golf course areas have been tightened, a few holes rearranged, the incorporation of large blocks of preserves, (the majority of these blocks correspond with the higher quality cypress habitat). He adds that there will be 100%wetland preservation and that the preserves amount to 214 acres (roughly over 100-110 represent cypress habitat). Mr. Shaw adds for the record, that he would like to submit for the record, a comprehensive list of .-� changes to stipulations discussed in the last meeting. He states that these have not necessarily been made since then, that he feels it would be a benefit to have a comprehensive list of the stipulations that staff provided in the EAC staff report. Mr. Shaw then proposed the following changes: 1) The stipulation for storm water management is accepted by the petitioner. 2) Environmental stipulation number 1 -has been changed (to revise the indigenous acreage) since they have added the five acre parcel and the minimum indigenous requirement has been increased by roughly 6/10 of an acre. 3) Environmental Stipulation number 2—Mr. Anderson has proposed a change in language to this stipulation 4) Stipulation Number 3 - was accepted as staff proposed it 5) Stipulation Number 4—Mr. Shaw reiterates that the petitioner still has concerns and that they would like to make one change to what staff recommended—they would like to change the word"use"to "consider", in the last sentence 6) Items five and six were discussed at the last meeting,both the petitioner and the county staff were in agreement on those revisions 7) Mr. Shaw feels that Mr. Carlson's concerns in the last meeting,regarding the low jurisdictional acreage, was resolved in the site inspection and states that a representative of the water management district is available if there are any questions regarding this topic rte. Page 3 f { June 5,2002 -Mr. Carlson states that he now feels that Bonita Bay was very"responsive and responsible" and incorporated a lot of the habitat into preserve and he commends them for doing so,he feels this is a good plan and he hopes the board accepts it -Barb Bergeson recommends NOT changing stipulation#4 from"the staff will use applicable stipulations"to "the staff will consider applicable stipulations", stating that they will use all comments that come back to them in regards to this project -Erica Lynne agreed, she also states that in stipulation number 5, she felt that at the last meeting the board discussed: "prior written consent of the developmental services director"be changed so that it came back before the board and NOT be an administrative decision -Mr. Shaw had a concern that coming before the EAC for this rather than doing "such a minor change administratively"will add undue costs -Mr. Hutchcraft stated that since the land development code already addresses the "appropriate methodology to review changes in those setbacks"that they be treated"like everybody else"in this instance and that Bonita Bay would like to be regulated by the land development procedures �-. -Barb Bergeson states that they are not asking for anything different than what any other project can ask for. Staff's position is not to grant any changes to the 25-ft or to the 10-ft distance separation. The only thing staff has done to grant an exception is to allow some filler sloping adjacent to the accessory within the 10-ft, and that has only been to an upland buffer and not a wetland buffer. -Mr. Carlson moves to approve this plan and the revisions and stipulations provided, with the exception of, in paragraph#4 that the EAC support the recommendation of staff that the word "use"be included, rather than the word "consider". Seconded by Alexandra Santoro, the motion then passed Unanimously. B) Planned Unit Development No. PUDZ-2001-AR-798 "Baldridge PUD" Section 18,Township 49 South,Range 26 East -Mr. Carlson states he had a discussion with Mr. Craparo prior to the meeting in reference to this subject -Mr. White swears in all those testifying Fred Reischill,planning services, requests a PUD re-zone from an existing golf driving range to a proposed office retail center. He shows the location is at the Page 4 1 [ June 5,2002 Southeast corner of Livingston Road and Pine Ridge Road. He states that the proposal is to create out-parcels or that it could be a single use facility also, (the map showing the property with parcels). The county has requested a 60-ft preserve at the rear of the parcel to connect two adjacent properties that will eventually lead to Whippoorwill Lane. Steven Lindburger,planning services department,presented the environmental aspects of the project: 1) The property currently has a driving range, native vegetation is approximately 4.3 acres (vegetation on the site is primarily cypress, pine-cypress, and palm mix) 2) 4.18 acres of wetland on site(the project will impact about 43% of these wetlands about 1.79 acres) 3) Calculated native vegetation on the project (since the project originally had more vegetation when the driving range was developed, they calculated the percentage of native vegetation for the project based on the amount of original native vegetation on site) 15% of native vegetation on site would be approximately 1.58 acres, the applicant is preserving most of this, located on this within the preserve area, identified at the lower end of the PED of the master plan and a small percentage is in the landscape buffer areas 4) A protected species survey was done; there were some wading birds in pooled areas on the driving range ,.� -Mr. Carlson questions why the original plan had 4.3 acres of native vegetation for preservation and the current only has 1.58 acres? -Barb Bergeson states that staff determined that the original preservation based on the land development code. Originally the land development code stated that"an appropriate amount of native vegetation shall be preserved" on the site. Since then the code was tightened and in response the staff has placed a base minimum for this site that is 15%. -Tim Hancock,with the firm of Vanasse Daylor representing the applicant, Baldrige Development incorporated. Tim states that he hopes his comments will address the basis of the impacts that are being proposed. 1) The proposed project after some eminent domain taking of property along the Livingston Road corridor and Pine Ridge Road corridor is down to 16.8 acres. The property was the subject of a comprehensive plan amendment that was done in 2001 that took this 17.5 acre parcel and converted it from urban residential to a commercial in-fill designation allowing up to 125,000 square feet of retail commercial uses, heights up to 35 ft with 50 ft for office uses, and required: A) To provide an access through the project to the south, connecting to future Livingston Road; in order to reduce the response time of the fire station B) On the Eastern side of the property, adjacent to all agricultural zones, they are Required to maintain a minimum 50 ft native vegetation buffer(the 1.85 acres to the south that Mr. Lindburger has referred to do not include this) Page 5 June 5,2002 C) In the original proposal, for a conditional use for a golf driving range, the reason the area that was set aside for preserve, was delineated was that the envelope that required only the golf course driving range impacts was what determined the resulting conservation easement. It was reported to the benefit of the South Florida Water Management District, and there was a meeting with them regarding this matter. The SFL Water Management District was present for any questions. -The original proposal tried to preserve as much of the original 4.3 acres of preservation as possible. The concerns that they faced were: 1) The access point on Livingston Road is a result of an eminent domain court order that requires the access to be in that location, this caused some level of impact to the recorded preserve area. 2) A request from Collier County Transportation for a 60 ft reservation of right-of-way extending from the access point at the rear of the property should it be needed in the future. -These two concerns were the primary reason the original impact was affected and changed to the current impact levels. -If the County does not go ahead with the roadway at the rear of the property, then it will stay in native vegetation. If they do go ahead with it, they have a few options: 1) The planned internal access road may be sufficient for this access, if it is they will have no need to impact the area any further. If it is not, then this is a decision that the County will have to make. -This is something that is not definite,but that had to be shown on the plans, in doing so they could not count that area as part of the preserve. This is 0.6 acres of additional area that they are not proposing to impact, they are merely responding to a county request. -Points on the subject of water management in this area 1) There is a significant amount of area for zoned development 2) Brynn Wood was required to obtain only a 25ft buffer to the Southern end of this project—The reasoning behind this is for Brynn Wood to redevelop an old slew that use to carry water from this area from the NW eventually out falling into the I75 canal. The district is requiring each neighboring project to provide a "piece of the puzzle" for that particular slew. 3) The drainage for this project, preferred by the district, is to dump into that slew. 4) Mr. Hancock states they modify the environmental resource permit, will have the ability to send their storm water run-off into that slew, (if it is ready, willing, and able to accept the run-off), or the project can take the storm water run-off into the Livingston right-of-way, (this was designed to accept the run-off of this project). They do not care which way the district wants them to go. The district has indicated they want them to go into the slew to help re-hydrate the area. If the slew is not ready when the project is complete, they have the ability to send it into the Livingston right-of- way, and when the slew is complete, the water can be blocked and sent �-. back into the slew. They are willing to do this if the district requires it. Page 6 r r June 5,2002 Karen Johnson, of the Water Management District, states that Mr. Hancock is correct, that there is an existing conservation easement on this preserve, and that they have been doing mitigation monitoring reports annually since the permit was issued and the project was built. A portion of the easement was vacated for Collier County to widen Livingston road in the past year. Any additional impacts to that preserve will also require vacation of that portion of the easement by the governing board. She also stated that based on the discussion of the proposed future right-of-way area, her recommendation to her governing board would be: (since they are not in the habit of permitting potential future right-of-ways and development permits), that they would leave that area within the conservation easement, should DOT ever decide to do that road, it will be their responsibility to justify the impacts and vacate that part of the conservation easement. Public Speakers: Frank Craparo, owns the property that adjoins the golf driving range directly to the East. Mr. Craparo concerns are: 1) He feels the county is planning on buying his property. 2) Due to the construction by the County on Pine Ridge Road, it appears to Mr. Craparo that his drainage cannot flow out the front of the property, which was a court order from an eminent domain settlement in 1986. He states when the land was purchased by the county in 1986 they were going to keep the pine ridge road canal to an 8.6 elevation and he was to discharge into the canal. �-. 3) He feels the slew cannot be a natural system because there will never be enough rain water to do so. He proposes they drain the Livingston road until which time they will not impact his property and the county can re-establish his drainage at 8.6 to the outflow of the canal. 4) He feels that the buffer to the East, is not sufficient because he feels the buffer will be chopped and his land will be impacted. He believes this is the county's plan, that they want the 60 ft road to bypass, and that this will cut about an acre of his property to the south and leave it in"limbo" 5) He also has a problem with the road (access#4), he feels it is too close to the fire station and traffic would block the fire station, he feels there solution would be to move it to the East to his court ordered entrance and he also believes they will close access to this side of his property 6) He feels this will devalue his property and then because he can not rezone they will be able to buy his property for a lower value than what he feels it is worth 7) He feels this situation will end up in a Federal grand jury investigation due to his claims that the county has devalued his property, taken his median cut, and intimidated land owners, appraisers, and lawyers in the area causing him not to get decent appraisals because he believes they want a portion of his land at a lower price -Mr. Sansbury wants reminds Mr. Craparo that they need to stick to environmental issues Page 7 1 L June 5,2002 -Mr. Craparo states again that he feels it will not be possible to create a natural slew in this area and that it will create a mesquito breeding ground which he feels will impact the health of area residents. -Mr. Sansbury states that he believes Mr. Craparo's points have been heard and tells him to make sure the points are also made to the permitting agencies involved, district, county engineering department, and the development department when the water management plan is put together. He reaffirms that Mr. Craparo's position is understood and the EAC appreciates his comments. Stan Chrzanowski, senior engineer with the engineering review community development, states the planners decided to make a master plan for the area, including the transportation, water and sewer, and the drainage in order to avoid too much impact on an area full of trees and vegetation. Mr. Chrzanowski stated that Mr. Craparo was not involved in the most recent meeting on the master plan and that he does not know why he was not involved,but that Mr. Craparo was involved in previous meeting that discussed transportation. The master plan shows: 1) Whippoorwill Lane is extended 2) The water and sewer was roughly acceptable to the utilities department On Drainage: 3) (Mr. Chrzanowski stated that Richard Thompson of the Water Management District was at the meeting and that the Water Management District was involved in the process to make sure that the remaining slew that flows into the Kensington Canal would remain whole.) -Mr. Chrzanowski stated that the Kensington Canal took a large amount of drainage from the Whippoorwill section that it started to back up into Kensington. -The developer of Kensington then built a burm along the side of the canal, which stopped the Whippoorwill water from surcharging his canal and gave him drainage,but it also backed up a lot of water into the Whippoorwill Section. -He then explained that Florida Power and Light has an easement in this area that is "raised", the maintenance road in the easement acts as damn. The slew was part of all of the permits issued and the area currently does take enough water that some people have complained of flooding. He sites that some of the homes along Hospice are concerned that the slew will be completed. -He stated the main concern at the meeting is the sequence of construction. He stated there is a meeting for final plans (provided to Jim Mudd) is June 15, 2002. This plan must show what the sequence of construction will be and stating the legal agreements that tie it together. 4) Mr. Chrzanowski, states that this is where the master plan currently stands, and that most of the details to be worked out deal with the sequence of construction. He is unsure where Mr. Craparo feels he is going to have a problem with his land due to anything they are allowing for in this master plan, and that the transportation issues (he assumes)will be handled by the planning commission since they do not involve his team. -At 10:08 AM a Five minute break was taken Page 8 June 5,2002 -Mr. Carlson stated that he is sorry that some preserve area was lost in the midst of development but that he sees no other way to do this considering the right-of-way requirements and everything else involved. -Mr. Carlson moves to approve, seconded by Mr. Humiston, All in favor, it passed unanimously V. Old Business—there was no old business for discussion. VI. New Business— A) Proposed GMP Amendments for the Rural Fringe/Response to DCA's ORC (Objections,Recommendations, and Comments Report)— Informational material given previously. Robert Mulhere, with RWA Inc. on behalf of Collier County spoke on the comments of the DCA prior to adoption and the responses provided: -The objections by the DCA, if not addressed,may result in a finding of non- compliance; so as indicated in the staff report, the county needs to respond to those objections in order to satisfy the issue. Comments are not the basis for non- compliance although each of them have been responded to although they are not the basis or finding of non-compliance from the DCA. 1) (Staff report—page 4), deals with the first objection of the DCA dealing with density blending. A) DCA recommendation: It is important that the county justify the need for density blending and provide a separate map identifying the properties eligible for application of the proposed planning provision and provide an analysis of the suitability of the identified areas for density blending. B) Response: they understand the comment, they are going to provide them with additional data and analysis, they have identified properties eligible for density blending and asked each of these property owners to provide any additional information (specifically regarding the environmental aspects of the lands)they may have to be forwarded to DCA. -Mr. Mulhere stated that the DCA felt this was sufficient -A map was shown that indicates eligible lands 2) (Staff report—page 5), titled agricultural rural land use designation A) DCA recommendation: Revise the plan to define and specify the intensity standards and development controls that will be applicable to commercial and industrial uses in the rural land use designation. B) The concern has been addressed, amendments were made to the designation that would specifically identify the lands that are eligible. -They proposed a 10-acre commercial designation in the area of State Road 29 and US 41, five acres on each side. The DCA had concerns this was too much. When addressed, they felt the Chevron station side was not technically commercial uses and the use in the Southwest Quadrant was a total of about 2 acres. The plan was then revised so the commercial uses Page 9 June 5,2002 where consistent with the plan (a maximum of 2.5 acres), but only in the SW Quadrant. They believe this addressed the DCA concerns. 3) The next comment is deferring to the land development regulations. DCA expressed concern that the language made the plan "self amending". A) DCA Recommendation: To revise the plan to specify the types, uses and the density and intensity that will be applicable to certain commercial uses and they indicated the term "essential services" should be defined in the plan. They also felt "mixed use" categories should be defined in the type of uses, their densities and intensities, and the percentage of distribution among the mix of uses for other objective measurements. B) Response: The proposed amendments were revised to be more specific, not to defer to the land development code. They did so by giving the reference a date, and by giving it a date it was then Not self-amending. Also (on Page 6, #8), revisions have been made to clearly identify a not to exceed amount for commercial and also US 41 and State Road 29 change is included here. They as well indicated(under item C) the proposed uses "include", was changed to the proposed uses "are limited to" those uses. -Mr. Mulhere stated that the DCA indicated that this would resolve their issues. (Page 6, item #9) comments on rural villages and discussion on land use mixture. They have added percentages for commercial and mixed uses into the rural village center and the rural village language. They have also provided for maximazation for square footage and other uses. They believe this will address the concerns of the DCA. 4) Dealt with the TDR rate. The plan indicated that the board might adjust the TDR rate if they chose to after some period of time. The DCA felt this may be self-amending and should be done through a comprehensive plan amendment. The plan has been revised to indicate this. 5) Deals with the Coastal high hazard area. -The DCA indicates that a portion of the receiving area falls within the coastal high hazard area. A) DCA recommends: Revise map to exclude that portion of the receiving area from the coastal high hazard area. B) They changed the designation here to neutral so that the land uses already there are not affected, but so that they cannot receive any additional density within this area. 6) Deals with rural villages. The DCA indicates that the concept of rural villages is innovative and will encourage clustering of land use activity into a logical urban form assuring a complimentary mix of uses,however guidelines addressing the location and planning are incomplete. A) DCA recommends: The DCA gave three options to deal with this: 1) To indicate, with the amendment, to map the location, size, and amount of development permitted for each rural village. 2) At the time of PUD or DRI approval require that the comprehensive plan be ammended to show the location, size, and amount. 3) To include more explicit, specific guidelines and standards in the comprehensive plan and additional data and analysis in the supporting Page 10 June 5,2002 documentation to ensure that the location, size, and amount of development in each rural village will be environmentally suitable, and adequate public facilities will be available and officially provided. (They also discussed locational criteria) B) Response: we have enhanced or added to the additional criteria for rural villages (Page 64—Future Land Use Element). - The DCA also had a general comment providing for greater definition of what was intended by a rural village. The response was (page 63 —under rural villages)to add more specific language that provides definition of what the county expects to see when a rural village is developed, and in order to have one approved. (Page 65 —item B—Locational restrictions) they said a rural village"shall"not be located any closer than 3 miles from another rural village, rather than"may"not. They also indicated no more than one rural village may be located in each of the distinct receiving areas, (before this condition was not here). They also indicated that a rural village shall have direct access to a roadway, classified by the county as an arterial or a collector, or access to the village may be via a new collector roadway directly accessing an arterial the cost of which shall be borne entirely by the developer. They also stated that rural villages shall be located where other public infrastructures, such as potable water and sewer facilities already exist or are planned. This was in direct response to the DCA comment. (Page 66—referring to DCA comments on land mix: they define neighborhood center and what% can be dedicated to this, etc.. This is where he indicated, that they provided specific and measurable intensity and density caps in the plan. 7) (Page 10—staff report &page 70 of the FLUE) - The DCA indicated that they had concerns with the conservation unit category allowing 1 unit per 5 acres and 1 unit per 3 acres within the Big Cypress, they stated that this level of development is not compatible with the need to ensure the protection of environmental sensitive areas, including wetlands. Furthermore oil and mineral extraction are allowed in the conservation designation both as an authorized use and as a conditional use. The DCA felt this needs to be clarified, and Mr. Mulhere stated that they have now done so. They have eliminated that use as a permitted use and retained it as a conditional use. A) DCA recommends: To revise the plan to clearly specify the uses allowed in the conservation designation, consistent with the need to protect natural resources. The county should establish that publicly owned conservation lands will have zero density. B) (Page 70) Mr. Mulhere stated they indicated that public lands do not have any residential density component. They also retained the 1-5 and or 1-3 within the Big Cypress density for privately held in-holdings and or privately owned lands within the conservation designation. They did so because they feel they need to respect the rights of private property owners. -Mr. Mulhere stated the DCA is comfortable with this. 8) (Page 79—FLUE) deals with natural resource protection areas. Page 1 1 r June 5,2002 A) DCA recommends: comment was that they had identified uses that were permitted within natural resource protection areas under the sending designation and within the rural fringe mixed use district most of the lands and NRPA's were identified as sending,but not all of them. DCA feels they must have restrictions under the NRPA designation and not just under sending. B) Response: They have added appropriate language to the NRPA overlay and the FLUE. (Page 79-80) They have added four items basically taken out of the sending designation. (Page 5 —Errata sheet) South Golden Gate Estates was made a permanent NRPA as part of the Rural Fringe Amendment. Identified lands specifically, what the perceived a minimal threat of conversion of those lands, and an indication that they would change the land use category where these processes have been completed. -Mr. Mulhere now moves into the"comments"of the DCA. (Page 11) He felt it was notable to state that there was not a single objection by the DCA on the conservation coastal management element, there were comments,but no objections. Comments: 1) Minor correction. It was made. 2) General comment about the organization of the plan, the DCA comment was that they would like it re-examined. They also indicated the broad uses allowed in the agricultural designation as well as the rural mixed-use designation should be re-examined. The FLUE was amended to clearly identify the rural use designation and the organization of the entire comprehensive plan will be re-evaluated in January 2004 and they do not feel it is appropriate to do at this point in time. He also indicates that the plan was originally written by Charlie Goadie, of the DCA, so they don't mind revises it if it needs to be done. Stated the rural designation only applies to two areas and when they pointed this out to the DCA,the DCA was more comfortable with it. The amendments do propose to add a third site, adjacent to industrial and adjacent to the landfill. The board wanted data and analysis of this land, from the property owner, and Mr. Mulhere stated that they did not have it to date so it may be an issue for the board to deal with at their adoption hearing. 3) The plan requires greenbelts around the rural villages but allows golf courses within the greenbelts. The DCA comment was that this may lead to a proliferation of golf courses in the area and defeat the purposes of the greenbelts and that golf courses are more suitable in urban areas. Mr. Mulhere states the response is that golf courses are intended to be primarily open areas and they must be designated in receiving areas surrounding the villages, receiving areas allow golf courses so they feel it is appropriate. He also stated that they added a requirement that golf course turf areas first be located within clear or disturbed areas within the greenbelt in order to preserve existing vegetation. -Erica Lynne stated that she as well objects that golf courses permitted within the greenbelts, along with the DCA, and she objects that because the DCA doesn't force it, that Collier County do the best job possible and not just follow the letter of the law Page 12 June 5,2002 -Mr. Mulhere stated he felt that this was the best job possible and that Erica Lynne and the DCA have a difference of opinion to this 4) The DCA comment was that there is an inconsistency in the provisions pertaining to site preservation in the receiving lands. (Item 7 —page 51) states that site preservation areas are intended to provide habitat function and shall meet minimum dimension set forth in the land development code and that an applicable standard shall be established within one year. On page 52, item 7, refers to open space and native vegetation requirements. Mr. Mulhere stated they were correct that there was a discrepancy and it has since been corrected. 5) The DCA comment was the proposal for rural villages does not include adequate criteria and guidelines for their design. Mr. Mulhere stated that it originally had more detail for design and that they have gone back and added more to the definition and more to the details of design. The information is on page 64-66 under rural villages. Also on the Errata sheet page 1,more information is listed. 6) The DCA comment was that the plan amendment indicates that rock mining activities in the North Bell Mead area are proposed to be expaned, the expansion of these activities has the potential to increase truck traffic in adjacent neighborhoods, raising compatibility and safety concerns; the county may consider designing alternative truck routes with this amendment. Mr. Mulhere stated that these comments would be relayed to public body for their consideration. He felt there may be more discussion further on in this meeting. Mr. Lorenz covers comments on Conservation Coastal Elements (page 13): 1) deals with amount of density bonuses to be granted. Staff put the language directly with the FLUE language. 2) (Page 32—Conservation and Coastal Element Development)—deals with the utilization of the functional assessment of the WRAP or the Future Unified assessment methodology that the state is still looking at. Staff went with the functionality assessment. Due to the comments by Jim Beaver, staff is also making the suggestion that in the rural fringe areas only, that the area be considered not less than 1/1 ratio. 3) Concerns deed restrictions may not be the permitted mechanism for protecting preserve area. Staff made changes that ensure the deed restrictions come out, and that the areas will be under conservation easement and have platted separately to ensure this. 4) Deals with underpasses to avoid roadway impacts. Staff has added the language in the appropriate places to the CCME. 5) Dealt with the appropriateness of the county requiring federal and state agency approval for all listed species, wading birds, roqeries and shore bird nesting areas. Staff feels that it is sufficient that they allow and seek out the recommendation of technical agencies. They feel requiring approval could cause phasing problems. So currently, staff is leaving the language"as is". 6) Deals with additional guidelines for Wood Storks, American Equestrals, and White Ibis. The multi-species recovery plan has the guidelines for the Wood Storks, so staff feels that is a technical reference. Mr. Lorenz also states that Page 13 June 5,2002 they just received the reference for the southeastern American Equestral, and that they have not had a chance to review it but that it could be incorporated as long as it is appropriate. Also a comment was given dealing with management plans for Black Bears, that habitat mitigation should be considered. Staff has added this language. Public Facilities Comments: 1) The comment indicated that policy 1.53 was unclear regarding provision of potable water and sewer within the receiving areas will not adequately objective 1.5 to discourage urban sprawl through maximization of the use of existing public facilities. The recommendation was to revise to clarify the intent of potable water and sewer services in receiving areas. Staff felt that these policies in both the sanitary sewer and potable water have been modified to clarify that essential utilities will be provided by the county for those rural transition water and sewer district, which is receiving lands and certain neutral lands. This excludes the Merisol section that is in conservation and the Big Corkscrew island community. It also indicates for rural fringe areas outside the rural transition water and sewer district, only individual potable wells and septic tanks are allowed. There were changes made, driven by staff recognition that something was missed or specifically by BBC direction: (Page 14-16) 1) (Page 15, 2nd bullet) eliminate secondary sending lands category from the text and future land use map, and return the 6,550 acres that were in the secondary _ sending designation to there existing designation. 2) (Page 15, 7th bullet) Staff has modified sending lands to clarify permanent agricultural uses are those which are in accordance with the right to farm act. 3) (Page 15, the last bullet) Added the county wide protection plans. (CCMB—page 22) shows some of the language, similar in the advertisement for the board's transmittal hearing, is put back in place. Some changes to note: A) Golf courses would be required to obtain 35%native vegetation B) They added another category for industrial development, within the rural industrial district only. They proposed a 50% standard. C) Policy 6.24 (Page 30)—has carved out a"finger" from Lake Trafford extending Eastward into the Immokalee urban area, and will apply the rural mixed-use district wetlands protection standards. After a year they will determine if this is appropriate. In North Golden Gate Estates they are discussing a requirement that will require individual property owner to get an agency jurisdictional permit, but they will not be holding permits until they get this,but will have a notification process. South Golden Gate is not included, the permits will be held till agency permits have been issued. D) Objective 6.3 deals with the language of submerged habitat is now in the adoption draft and the policies addressing Sea Turtles is now in the adoption draft as well E) South Golden Gate estates has been changed to a permanent status as a permanent NRPA Page 14 June 5,2002 F) In regards to wetland retention ponds the language was changed from "a literal shelf equal 10% of the shoreline" this is changed now in the codes to "2.5% of the pond surface area", this will be the standard for urban designated areas; within the rural fringe the proposed standard is still 30% -Mr. Mulhere points out that the boundaries in the original map has been slightly changed, due to recent information in terms of acquisition. He points out the reduction in the size of the receiving area, which, now reflects the current public ownership. Public Speakers Nicole Ryan,representing the Conservancy of SW FL, stated she would like to comment on the May 31, 2002 memo sent to the EAC from the Conservancy. -The Conservancy's concerns mainly dealt with the county not implementing any land use plans for agricultural. -The Conservancy agreed with DCA recommendations on density blending and was glad to see that staff put in more stipulations. -The Conservancy's largest concern, with respect to density blending, is in the North Belle Meade Fl project, they ask that the county proceed with caution. -They also have concerns with the size, location and make-up of rural villages, they fear without strict standards, that these lands would not stay rural. They are pleased with the changes staff has made in the amendments dealing with how these villages are made up. -The Conservancy agrees with the DCA recommendation that residential density be eliminated on publicly owned lands -(In regards to Objection 8 of the DCA) The Conservancy would like some sort of policies for future agricultural uses within the NRPA's, however they understand that county staff is not willing to do that at this time -Agrees with the DCA that golf courses not be allowed in the greenbelts -(On Page 13 comment 3 under the CCMA) the Conservancy hopes a binding conservation easement might be used in place of the deed restrictions. -(Page 15 —under bullets, in regards to secondary sending areas removal) The Conservancy cautions that there are a lot of areas that are environmental sensitive that have been developed and they would like to see some sort of sending status be retained on those lands -Overall they feel today's product is better than what was initially proposed, and they feel the staff has done a good job in addressing the DCA concerns, these are only additional comments. Brad Cornell,representing Collier Audubon Society, states three points dealing with the agricultural policies: 1) allowing agriculture to continue after TDR transfer,he believes undermines the purpose of the protection status and the TDR program (Page 62- Future Land Use Element - #7)—he does not feel this change is warranted. 2) Feels the 25 year prohibition on using TDR's, where parcel has been cleared of agriculture, as of adoption, should be extended to 40 years (Page 64 - #4) as a disincentive to clearing Page 15 June 5,2002 3) (Coastal and conservation management element, policy 6.1.4 on page 26) He feels the prohibition of conversion of newly cleared agriculture to urban uses, should be extended from 25 to 40 years 4) (Under wetland policies) He feels would like to adopt a policy similar to Lee County, that you need a agency permit in hand before you can get a building permit, where there are known to be hydric and wetland soils. 5) Also, he feels that letters, review and approval from protective agencies, on listed species sites, should be required. 6) The Terrell shelves for storm water management ponds in the Future Land Use Element should also indicate the 30% area as it does in the Coastal and Conservation Management Element 7) (Page 79—Future Land Use Element) The last line of Item E, should read "North—West portion, not North—East. 8) The increase in density on sending lands to 1 unit to 40 acres, he believes is unnecessary -Collier Audubon Society does support the general overall policy directions in the Rural Fringe Policies, with the recommended changes they fully support adoption Ernie Cox,representing Collier Resources Company, stated Collier Resources Company owns oil and gas interests underlying most of Collier County. The federal government has now agreed to purchase about half of those interests. That purchase does not cover all of the interests, including some interests in the Rural Fringe, and also other lands not contained within. He stated the request was that plan stay the way it was, prior to the proposed amendments, which is to say oil extraction and processing is a permitted use in conservation, in the rural and agricultural designation. They request this be a permitted use not only in the sending and neutral lands, but through all the lands in that area. The reasons for this are, oil extraction is done by wells and have less impact than mineral extraction, also that there are already stiff federal and state regulations on the extraction of oil. Also he makes a note on the change to conditional use in the conservation areas and the sending areas in the Rural Fringe, is additional regulation, and he states that oil has only one use and request no changes be made and that he would object to any changes. -As proposed the change would be conditional use in sending areas and also area where TDR's might be utilized (page 64-65), this leads to additional regulations and it takes away the certainty provided Chapter 377 Florida statutes, this brings the county into the permitting processing if the change is made -Mr. Mulhere states he has no objections to this, but he would like to run it by Nancy Lenan, the county's council,because he feels there are some legal implications. Also he would like to take it to DCA and the council to hear their concerns and then go from there. Nancy Payton,representing the FL Wildlife Federation, stated she believes it is a digression to speak of exemptions for the permitting process, and that it is a"slippery slope". She addresses essential uses on sending lands, NRPA's, and conservation lands. She states it took a long time to get these lines identified and protected, due to their strong environmental values. She feels the definition of essential services is too broad. She also states that some of the permitted uses under the conservation district that are Page 16 June 5,2002 concerns to the Wildlife Federation. Under the conservation segment -they don't see any conservation lands between the sewer districts, and also they do not feel these facilities, sewer stations and lift stations, should be on conservation lands and they urge that this particular use be eliminated from conservation land. (Page 71) She refers to a map that there are no shown conservation lands between these sewer district. -Mr. Mulhere stated that it is possible that there will not be a need to run a collection or a transmission line through a conservation district,but there is the possibility that this would happen while or before a land is being proposed for conservation -Nancy Payton affirms she is objecting to sewer lines and lift stations on conservation lands -Nancy Payton and Mr. Mulhere clarify essential services (by referring to Page 71, the last paragraph, sub-paragraph one), it reads: "essential services not identified above in paragraph H, within one year Collier County will review essential services currently allowed in the Land Development code and will define the ....During this one year period...shall be approved." -The EAC decides to vote on the balance of the provisions, with the exception of the loan that contains a conflict of interest for Thomas Sansbury -Erica Lynne stated concerns that SFL Water Management feels that without buffers of one to two miles this plan will not work, (this is in reference to a letter from SFL Water Management dated December 11, 2001 -Mr. Mulhere states that he is unsure if that this letter was written prior to the changes, and if this is still the standing of the SFL Water Management or if that view has changed, but they have considered and understood the input and that it has been considered through the entire process -Mr. Lorenz stated that these distances have been discussed and the staff's position is that they cross-reference the procedure that SFL Water Management uses -Mr. Mulhere clarifies that if this is referenced and there is a legitimate scientific reason for a buffer to be 1 mile then it is possible through this process that it could be a buffer, it is the degree to which there would be a degradation in the hydrology as a result of the development -Mr. Carlson feels this information is coming from two sources, Clarence Tiers (Collier County, Big Cypress Basin) and Mike Duvars (Fort Myers Service Center with the SFL Water Management District) and questions if the DCA had comments on appropriate buffers -Mr. Lorenz and Mr. Mulhere explain that the buffer is a minimum of 300ft and that this can be changed by the permitting process; In the buffering language, they address the hydraulic concerns by using the procedure that the SFL Water Management District uses, and they also address the buffering through the utilization of open space, or if there is a particular listed species that have a particular set of requirements that are identified in Page 17 June 5,2002 ,'"• the policy, then those numbers would"trigger"the minimum to buffer to be higher than 300ft. -Mr. Carlson provides a list for discussion of recommendations 1) that golf courses Not be permitted in the greenbelts 2) that there be legal conservation easements when there are issue of listed species and wildlife protection 3) the plan is weak in restricting agricultural uses on sending lands where the development rights have been sent, and that it needs to be strengthened 4) that sewage lift stations and lines are not compatible with sending and conservation lands -Mr. Humiston has concerns about the restrictions on the lift stations in the conservation lands is (as Robert Mulhere pointed out) that the alternative is to avoid it by going around some conservation lands might be ultimately more impactive, in specific situations, then going through the conservation lands (Impactive to other lands that may have environmental resource value and that sometimes it may be less impactive to go through the conservation lands, then it would be to take a much longer route around therefore affecting a larger quantity of land) -Mr. Lorenz showed on page 34 of the CCME policy 6.26, that they took deed restrictions out -Mr. Carlson amends his list -Erica Lynne motions that the EAC recommend the Rural Fringe Agricultural Assessment Growth Plan Management Amendments with the following conditions: 1) that golf courses not be allowed in the greenbelts around the rural villages 2) that they need to look closer at restricting agriculture in sending lands in order to protect the natural resources there 3) to delete sewage lines and lift stations from permitted uses in conservation, NRPA's, and sending lands -Seconded by Mr. Carlson, All those In favor: Alexandra Santoro, Ed Carlson, and Erica Lynne All those Against: Ken Humiston and Thomas Sansbury The vote was 3-2 thus the motion failed VII. COUNCIL MEMBER COMMENTS -Mr. Sansbury questioned a legal notice in Saturday's paper that he believed was the "Rookery Bay Towers"project which failed unanimously before the EAC and that it was under a different name -Robert Duane, stated that it is now called Estuary Bay, and that the Water Management district has issued a permit that since they went before the EAC, that they could have an enough enhancement on this site that they were able to offset Page 18 June 5,2002 their impact on a small development. The only thing that has changed is the name. VIII. PUBLIC COMMENTS Frank Craparo, concerned that the first weir in the Golden Gate Canal is still running water over in the mist of the draught. -Mr. Sansbury stated that it is currently being raised approximately 2 feet and is expected to be completed around 60 days,having been raised from 3.2 to 5.2 Mr. Craparo feels it is blocked and that it will take a year to complete leaving incapable to deal with flooding. Also he believes all the weir's are 2-3 feet too low,he feels this can be remedied by a pulse-release system that disrupts the Eco-system in the bay, or that the water can be released in a controlled manner so as not to disrupt the Eco-system. -Mr. Sansbury stated that he is aware of an innovative project underway at the Big Cypress Area, relating to the spoken of weir. He feels Ed is utilizing the canals and the interior lake systems within the community, which will be superior to just the canal. IX. ADJOURNMENT—the meeting was adjourned at 12:25pm on June 5,2002. -The next meeting is July 3rd, 2002 at 9am Page 19 w . Item IV.A ENVIRONMENTAL ADVISORY COUNCIL STAFF REPORT MEETING OF JULY 3, 2002 I. NAME OF PETITIONER/PROJECT: Petition No.: Special Treatment Permit No. ST-2194 Petition Name: Center Point Applicant/Developer: SW Florida Opportunity Fund, LLC Engineering Consultant: Landy Engineering, Inc. Environmental Consultant: Boylan Environmental Consultants, Inc. II. LOCATION: The subject property is a 4.02 acre site located at the Northwest corner of the intersection of Collier Boulevard and U.S. 41, in Section 3, Township 51 South, Range 26 East, Collier County, Florida. III. DESCRIPTION OF SURROUNDING PROPERTIES: Surrounding properties include developed and undeveloped parcels, and two roadways. ZONING DESCRIPTION N - PUD (Falling Waters Beach Resort) Partially Developed S - R.O.W. U.S. 41 E - Agricultural Undeveloped W - R.O.W. Collier Boulevard IV. PROJECT DESCRIPTION: The petitioner is requesting a Special Treatment "ST" Permit on the subject 4.02- acre site that is zoned C-3ST. The petitioner proposes to construct an 11,200 square foot drug store and a 266-seat restaurant via the site development plan annrflval nrncrcc EAC Meeting Page 2 of 9 V. GROWTH MANAGEMENT PLAN CONSISTENCY: The subject site is located within the Urban-Mixed Use District, Urban Residential Fringe Sub-district that is intended to provide transitional densities between the Urban Designated Area and the Agricultural/Rural Designated Area. This district also permits non-residential uses and commercial uses subject to the location and development criteria of the Office and Infill Commercial Sub-district of the Future Land Use Element (FLUE) of the Growth Management Plan (GMP). A consistency analysis with applicable elements of the GMP is as follows: Future Land Use Element: The subject site is currently zoned C-3 and is adjacent to a commercial tract of the PUD project to the north. The pre-existing C-3 zoning may be deemed consistent with the Office and Infill Commercial Sub-district Future Land Use Element of the Growth Management Plan. Conservation & Coastal Management Element: Objective 2.2 of the Conservation and Coastal Management Element of the Growth Management Plan states, "All canals, rivers, and flow ways discharging into estuaries shall meet all applicable federal, state, or local water quality standards." To accomplish that, Policy 2.2.2 states, "In order to limit the specific and cumulative impacts of stormwater runoff, stormwater systems should be designed in such a way that discharged water does not degrade receiving waters and an attempt is made to enhance the timing, quantity, and quality of fresh water (discharge) to the estuarine system." This project is consistent with Objective 2.2 and policy 2.2.2 in that it attempts to mimic or enhance the quality and quantity of water leaving the site by utilizing a dry detention area connected to an indigenous preserve and water management area to provide water quality retention and peak flow attenuation during storm events. With regards to native vegetation preservation and wetland issues, the following Objectives and Policies apply: Objective 6.2 states, "There shall be no unacceptable net loss of viable naturally functioning marine and fresh water wetlands. excluding transitional zone wetlands which are addressed in Objective 6.3." The loss of viable freshwater wetlands on EAC Meeting Page 3 of 9 this site may be considered unacceptable and therefore may be inconsistent with Objective 6.2. Policy 6.2.10 states, "Any development activity within a viable naturally functioning fresh-water wetland not part of a contiguous flow way shall be mitigated in accordance with current SFWMD mitigation rules. Mitigation may also include restoration of previously disturbed wetlands or acquisition for public preservation of similar habitat." This project is consistent with this policy in providing for off-site mitigation pursuant to SFWMD mitigation rules. Objective 6.4 states, "A portion of each viable, naturally functioning non-wetland native habitat shall be preserved or retained as appropriate." Policy 6.4.7 states, "All other types of new development shall be required to preserve an appropriate portion of the native vegetation on the site as determined through the County development review process. Preservation of different contiguous habitats is to be encouraged. When several different native plant communities exist on site, the development plans will reasonably attempt to preserve examples of all of them if possible. However this policy shall not be interpreted to allow development in wetlands, should the wetlands alone constitute more than the portion of the site required to be preserved. Exceptions shall be granted for parcels which can not reasonably accommodate both the preservation area and the proposed activity." The loss of 1.08 acres (82 percent) of the wetlands on-site may be considered inconsistent with Policy 6.4.7. Staff, believe that the applicant has not reasonably accommodated both the preservation of wetlands on-site and the proposed activity. VI. MAJOR ISSUES: Stormwater Management: Center Pointe is a proposed commercial project on the north east corner of County Road 951 (Collier Boulevard) and U.S. 41. The site is located within the Henderson Creek Basin. The existing ditch along U.S. 41 is maintained by Collier County Stormwater Management. The Water Management for this site consists of a dry detention area connected to a wetland preserve. These areas will provide the water quality retention and water quantity peak flow attenuation required to throttle the discharge rate down to acceptable levels. The project will be permitted by SFWMD because of the amount of wetlands on-site. ' EAC Meeting Page 4 of 9 Environmental: Site Description: A fruit stand currently exists on a portion of the subject property. Scattered slash pines, oaks, cabbage palms and ornamental vegetation are located on the developed portion of the property. The eastern third of the site contains a forested freshwater wetland vegetated with laurel oak, cypress, red maple and cabbage palm. Groundcovers in the wetland, consists mainly of swamp fern and sedges. z � 4.. 5e..1._,...„.. .„. ,:;:,...;,;., „..1,..0....,... .7.t....;,:, „,s_ .;4;'41'4:13,1'114k. .' < • Existing fruit stand located on the developed portion of the property. f r awok;,kyr"ret ...,..„4....-;'-:No,',br- pI� _ 3 /' '' k Y A " t x R '- .� 43� - - APR Z3 2002 Looking east at the forested freshwater wetland on the east side of the property. A single soil type is found on the property, Pineda Fine Sand, limestone substratum (Soil Map Unit No. 14). This soil type is listed as hydric by the Natural Resources Conservation Service (NRCS). EAC Meeting Page 5 of 9 Site elevations vary from a high of approximately 9.1 feet NGVD on the developed portion of the property, to a low of approximately 3.6 feet NGVD in the wetlands on-site. The control elevation for the project is 5 feet NGVD, and was established according to adjacent projects and roadways. The adjacent U.S. 41 Canal is controlled by the Big Cypress Basin (Structure Hen CR-1) and is operated at 5.00 to 6.00 feet NGVD. Special Treatment (ST) Overlay: As stated in section 2.2.24.2.1 of the Land Development Code (LDC), the ST overlay district classification will be used for those lands of environmental sensitivity and historical and archaeological significance where the essential ecological or cultural value of the land is not adequately protected under the basic zoning district regulations established by Code or by ordinance. All land within the ST overlay district shall be designated as environmentally sensitive. Section 2.2.24.1 of the Land Development Code states the purpose and intent of the ST overlay district, and reads as follows: "Purpose and intent. Within Collier County there are certain areas, which because of their unique assemblages of flora and/or fauna, their aesthetic appeal, historical or archaeological significance, rarity in Collier County, or their contribution to their own and adjacent ecosystems, make them worthy of special regulations. Such regulations are directed toward the conservation, protection, and preservation of ecological and recreational values for the greatest benefit to the people of Collier County. Such areas include, but are not necessarily limited to mangrove and freshwater swamps, barrier islands, hardwood hammocks, xeric scrubs, coastal beaches, estuaries, cypress domes, natural drainageways, aquifer recharge areas and lands and structures of historical and archaeological significance. The purpose of this overlay district regulation is to assure the preservation and maintenance of these environmental and cultural resources and to encourage the preservation of the intricate ecological relationships within the systems and at the same time to permit those types of development which will hold changes to levels determined acceptable by the Board of County Commissioners after public hearing." The subject property has an ST overlay over the entire parcel. Typically the ST designation is used to identify jurisdictional wetlands on-site, the boundary of which is determined by the petitioner and then verified by the South Florida Water Management District, prior to submission of an application to the County. Jurisdictional wetlands are located along the eastern portion of the subject property and total 1.31 acres. Final action on the site alteration plan or site development plan for a Special Treatment Permit lies with the Board of County Commissioners. The applicant EAC Meeting Page 6 of 9 development permit through an interpretation from the former Planning Services Director. The County Attorney's Office has since determined that the request would have to follow the procedures set forth in section 2.2.24.6 of the Land Development Code. A copy of the legal opinion from the County Attorney's Office is attached to this staff report for reference. Wetlands: Approximately 1.31 acres of South Florida Water Management District (SFWMD)/Collier County jurisdictional wetlands occur on the subject property. These wetlands extend off-site on undeveloped lands to the east. The combined size of the on and off-site wetland is estimated to be 5 to 6 acres. The project as proposed will impact 1.08 acres (82 percent) of the wetlands on- site. Mitigation was provided by the applicant through purchase of 1.86 credits at the Panther Island Mitigation Bank. Off-site mitigation included impacts for all of the wetlands on-site. The SFWMD Environmental Resource Permit for the project was issued on October 11, 2001. Preservation Requirements: Approximately 1.77 acres of native vegetation exist on the subject property. This includes 1.31 acres of SFWMD/Collier County jurisdictional wetlands and 0.46 acres of pine, oak and cabbage palm on the upland portion of the site. The minimum preservation requirement for the site, pursuant to 3.9.5.5.4 of the Land Development Code, is 0.18 acres (10 percent of the existing native vegetation found on the property). &e•-• _ } ,} y Looking east towards the undeveloped portion of the property. The jurisdictional wetland is in the background. EAC Meeting Page 7 of 9 Listed Species: Observations for protected species were made while conducting site visits for vegetation mapping, wetland flagging, and wetland jurisdictionals. No protected species were observed on or adjacent to the property. VII. RECOMMENDATIONS: Staff recommends denial of Special Treatment Permit No. ST-2194 "Center Point" for the following reasons: 1. Section 2.2.24 of the Land Development Code identifies lands of environmental sensitivity where the ecological value of the land is not adequately protected under the basic zoning district regulations established by Code or ordinance. 2. The subject property has a Special Treatment (ST) overly, of which 1.31 acres are vegetated with a forested freshwater wetland containing laurel oak, cypress, red maple and cabbage palm. This wetland has been determined to be - jurisdictional by the South Florida Water Management District. Freshwater swamps are identified in section 2.2.24.1 of the Land Development Code as a type of habitat requiring protection under the Special Treatment(ST)regulations. 3. The petitioner proposes to impact 82 percent (1.08 acres) of the jurisdictional wetlands on-site and to provide mitigation off-site as compensation. The remaining 0.23 acres of wetlands are proposed to be retained on-site within a proposed stormwater retention area. The purpose of this overlay district regulation as stated in section 2.2.24.1 of the Land Development Code, is to assure the preservation and maintenance of these environmental and cultural resources and to encourage the preservation of the intricate ecological relationships within the systems and at the same time permit those types of development which will hold changes to levels determined acceptable by the Board of County Commissioners after public hearing. 4. Staff does not believe that an 82 percent impact, regardless of off-site mitigation, is an acceptable level of impact to ST designated land containing environmentally sensitive habitat. EAC Meeting Page 8 of 9 PREPARED BY: STAN CHRZANOWSkI, P.E. DATE ENGINEER SENIO 7/0 2_ 114°C. ADA' ES MINOR. P.E. DATE ENGINEER SENIOR 6//74a22 STEPHEN LENBERGER DATE ENVIRONMENTAL SPECIALIST L. i.1 RAY FOND V. BELLOWS DATE CHlh PLANNER REVIEWED BY: --41/2,0120 2. 12,4 6 THOMAS E. KUCK, P.E. DATE ENGINEERING SERVICES DIRECTOR r r EAC Meeting Page 9 of 9 V/t3/Z,S AN MURRAY, E CURRENT PLANNING MANAGER/ INTERIM PLANNING SERVICES DIRECTOR APPROVED BY: 47-2,17e, O.EPH K. S MITT DATE •MMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES ADMINISTRATOR ENVIRONMENTAL ADVISORY COUNCIL THOMAS W. SANSBURY, CHAIRMAN SL/gdh/c: StaffReport ti r 4 MEMORANDUM DATE: March 18, 2002 TO: Susan Murray, AICP, Interim Planning Services Director 1114 FROM: Patrick G. White, Assistant County Attorney • RE: ST Designation — Center Pointe RLS # PLS 02030417 You have asked a series of questions with regard to the referenced request. As background, my understanding is that on July 28, 1987, the Board of County Commissioners (BOCC) approved Ord. # 87-59. This Ordinance rezoned the subject property to a conventional C-3 Zoning District and imposed an "sr designation over all 4.02 acres ± of the subject project. Along with the Ordinance reflecting the zoning approval and ST designation, Mr. Tony Pires (attorney for the property owner) also provided me with an "Agreement" attached to the Ordinance which pertains to certain conditions (stipulations). My review of the attached "Agreement" reflects that it was not "signed or sworn to" by the then property owner until August 4, 1987. This appears to be at a point in time where the already adopted Ordinance was actually en route to the Secretary of State's office, where it was filed and became effective on August 5, 1987. Thereafter, the Ordinance was not received from the Secretary of State by the Clerk of Courts until August 10, 1987. Because the Agreement was not signed until August 4, 1987, it is not possible that an agreement binding the property owner could have been included as part of the Ordinance which the BOCC approved on July 28, 1987. This conclusion is bolstered by the fact that the Ordinance nowhere makes reference to the Agreement and fails to incorporate the Agreement as part of the Ordinance. The Agreement is not even identified as an exhibit to the Ordinance. In contrast, Ord. # 87-64 (provided by your office for a comparative review of the typical process followed in the late 1980's for similar rezoning requests) clearly shows that when staff and the BOCC intended to include such agreements as part of an ordinance there was an established form and precise means to do so. By comparison, Ord. # 87-64 also created commercial zoning and imposed an "ST" designation on a parcel of land of almost the same exact size. This Ordinance expressly stated that the "ST" designation was "per the stipulations contained in the Agreement sheet" which was "attached" to the Ordinance and was "incorporated" as part of the Ordinance. The Agreement was labeled, referred to, and identified as, Exhibit "A." Additionally, the date the Agreement was "sworn and subscribed to" by the property owner was July 16, 1987, which was the date of the prior Collier County Planning Commission (CCPC) meeting. That Ordinance was approved by the BOCC on August 11, 1987, and was filed by the Secretary of State and became effective on August 17, 1987. Fage 1 of 5 From Ord. # 87-64 and its attached Agreement we see that the forms and process to create legally effective conditions on "ST' designated lands were available and used when required. Admittedly, although the desire of the staff and property owner' may have been to include the "Agreement" as part of Ord. # 87-59, the facts lead this office to conclude that from the documents provided the stipulations/conditions in the Agreement attached to Ord. # 87-59 are not, and never have been, legally effective. This is a reasonable conclusion in light of a contemporaneous ordinance that also imposed an "ST" designation where an almost identical agreement was timely adopted and expressly made legally effective. Accordingly, the following answers will be based on the foregoing conclusion, except where stated assumptions may be made in order to provide a more meaningful answer. The answers are provided in the order of the questions you have asked. You first ask what the County's current regulations allow the Planning Services Director (PSD) to do with respect to wetlands when other agencies with jurisdiction to regulate the development of such wetlands have issued permits or otherwise authorized the property owner to clear and develop those lands. As you may well know, Collier County does not have an express set of regulations specifically providing for the preservation of wetlands. In fact, the current policy of the County appears to be one of acquiescing to the determinations of the South Florida Water Management District (SFWMD) and Army Corps of Engineers (ACOE). In this case the ACOE has advised the property owner that "no permit" is required for the proposed project. Similarly, the SFWMD has issued a permit allowing the purchase of off-site mitigation credits and has only required the preservation of 0.23 acres of wetlands as part of the project's stormwater management system. The only requirements which appear to regulate the preservation (or not) of wetlands are those found in the LDC's "ST" provisions to the extent such wetlands would be required to be preserved as part of the approval of an SDP or SIP for lands designated "ST." Because the subject lands are so designated, this office is of the opinion that even if the SFWMD and ACOE have granted permits to allow development activities to occur within the wetland area of the subject site's "ST" overlay, the PSD may, consistent with the provision of LDC § 2.2.24, et seq., require preservation of on-site wetlands under appropriate facts. Second, you asked whether the LDC allows for an administrative removal of the "ST" overlay, provided the applicant submits the above-referenced permits. Regardless of whether the applicant submits any permits authorizing development, LDC § 2.2.24.2.1., makes clear that the only permissible means of removing an "ST" overlay from a zoning district is through the zoning code and official zoning atlas amendment process found in LDC Division 2.7. Third, you ask essentially the same question again except as to whether there is an ln\f nInnmon+ r!2r (Cr1P1 P;nc % n? G again assuming the above-referenced permits are provided. You reference LDC § 2.2.24.5., as part of your question. This section requires an applicant to apply for and obtain approval of such plans by the BOCC, as provided for in LDC § 2.2.24.6, Jra that section review and recommendation are required by appropriate county staff, the Environmental Advisory Council (EAC), and CCPC before such site plans can be considered for final action by the BOCC. The only exception from these procedures is for those lands comprising less than 20 acres where no transfers of development rights are involved. If these conditions are met, then so long as the provisions of LDC § 2.2.24.8., can otherwise be met by the application, then the PSD may administratively approve the applicant's site alternation or site development plan. The same would be true for activities which qualify for an "exemption" under LDC § 2.2.24.9., which does not, however, appear to pertain to this project. In order to more fully answer this question, and assuming for the moment that the conditions of the Agreement in Ord. # 89-57 were held to apply to the facts of this case, this office is of the opinion that neither paragraph "h." or "I." of that Agreement would act to override the above-cited LDC provisions. Paragraph "h." purports to reduce the size of the "ST" overlay to only those portions of the 4.02 acre site, which are determined to have jurisdictional wetlands specifically located on the site. This provision conflicts with the express terms of the Ordinance itself which, in its only operative provision, imposes an ST designation over the entirety of the subject lands. Much has been made of the effect of Paragraph "I.," but this office reads this provision (notwithstanding its convoluted and complex phrasing) to simply be a "timing" provision. Stated differently, Paragraph "I." merely precludes all development activity outside of the wetland jurisdiction area until after compliance within the permitting requirements of "all appropriate local, state and federal agencies for any use [or] activity within the [wetland] jurisdictional area." (Emphasis added). Thus, even if the state and federal agency permits are obtained (as here), the remaining requirement to comply with the local permit provisions, i.e., those in LDC § 2.2.24, has not been obviated. Accordingly, these provisions of the Agreement do not act to afford the applicant any greater relief even if they were effective. Although, the applicants may argue that when these provisions were considered in the prior PSD's letter, they lead to the inescapable conclusion that their SDP must be administratively approved, this office, after carefully considering the referenced letter, does not reach that same conclusion. At most, the letter should be read to state, consistent with this office's recognition that Paragraph "I." is merely a "timing" provision, that once a site development plan was submitted, it would not be approved until the needed permits were received. This is clearly recognition that no SDP approval could occur, administratively or otherwise, until the permits were provided. If the letter is argued to be a "shoehorning" in of the provisions of the "exceptions" section of the LDC in § 2.2.24.8., then arguably, the applicant's proposed SDP, regardless of other agency permits, would still have to qualify for such an "exception" under the terms of LDC § 2.2.24.8. Page 3ofE r ✓ After reviewing the detailed "exception" criteria in LDC § 2.2.24.8.1.a., this office concludes this provision, as written, can logically only apply to lands (or portions, of a site's lands) that would not otherwise qualify for an "ST" designation. In essence, the provision allows an "exception" only if the SDP proposes or requires no activities which are almost universally required to develop any parcel of land regardless of its environmental sensitivity or not. For example, only a sufficiently elevated site (i.e., above flood level) with its own natural, on-site retention of all of its stormwater, and that was devoid of flora and fauna (except exotics), would appear to qualify for this exception. Given that all LDC provisions should be read (and applied) to afford them meaning, it was not beyond the exercise of reasonable professional judgment for the prior PSD to apply these exception provisions in this case in a way to have concluded that an administrative approval would be warranted. This is especially true in light of the assumed applicability of the Agreement's provisions pertaining to providing permits from the other agencies. As stated above, this office's opinion is that the Agreement was never legally effective, thus, any staff opinion relating thereto was not unsupported by both the record and the then existing regulations. Your fourth question asks what the proper procedure is for an applicant to resolve a conflict between two differing interpretations of successive PSD's. This office believes that under the present facts and apparently differing "interpretations" being offered, the LDC affords the applicant the opportunity to request an Official Interpretation under LDC Division 1.6, to resolve any perceived "conflicts" in successive "interpretations" of the County's regulations. If dissatisfied with a more recent Official Interpretation of the current PSD, the applicant many appeal to the BZA for review. To summarize, this office concludes that, absent a judicial determination otherwise, the Agreement's provisions are not deemed legally effective. Additionally, assuming solely for the sake of argument that such provisions were considered to be legally effective, there is nothing in the Agreement which alters the applicability of the provisions of LDC § 2.2.24. As such, in order to entirely remove the subject parcel's "ST" designation, the procedures of LDC § 2.2.24.2.1., and Division 2.7., must be followed. In an effort to clarify the actual scope of the "exceptions" set forth in LDC § 2.2.24.8. (especially sub-section 1.), this office recommends the immediate re-drafting of these provisions. Lastly, absent qualifying for an exception allowing for administrative approval, the subject project's SDP must be approval pursuant to LDC §§ 2.2.24.4., 2.2.24.5., and 2.2.24.6., as is expressly stated at the very end of LDC § 2.2.24.8. Please let me know if you require any further assistance in this matter. PGW:kit l r f- k. cc: David C. Weigel, County Attorney Marjorie M. Student , Assistant County Attorney Joseph K. Schmitt, Administrator, Community Development & Environmental Services Division Steve Lenberger, Environmental Specialist Barbara Burgeson, Sr. Environmental Specialist '" . „ COLLIER COUNTY GOVERNMENT '14 COADNUNITY DEVELOPMENT AND ENVIRONMENTAL SERVIci3§Dtvt.pxozi. _. r._ Planning Ssrvicva Department 2800 North Horseshoe Drive Nc.plea, Florida 34104 July 31,2000 Mr. Anthony P.Pines,Jr. Woodsvard,Pitts,&Lombardo,P.A. 801 Laurel Oak Dr.,Suite 710 Naples,F1.,34108 Re: Ordinance 87-59 IR-87..3c] NE Intersection Collier Boulevard and US 41 E. Dear Mr.Pires Further to out discussion concerning the applicability of the special treatment overlay on the property referenced above,and conditions within said referenced development approval(i.e. ord. 87-59),it is our position that the stipulation of approval paragraph"r'is to be administratively determined at the time of site development plan approval. • For purposes of complying with this stipulation it is our opinion that the land within the special treatment area falls within the jurisdiction of the South Florida Water Management District. Should they determine to approve permits for development that is inclusive of this area,that action will be sufficient for Collier County to conclude that the stipulution has been met. A site development plan submitted to this office will be approved«igen permits from the Water Management District and Army C Grp of Engineers are received. If these agencies allow development activities to occur within the area of the identified special treatment overlay district,then these approvals will become part of the SDP approval. If I can be of further assistance,please do not hesitate to call. Sincerely Robert J. Mulhere,AICP Rfn'bjm Phone(941)403.2400 Fax(941)643.6968-� �`~www.co.eoIiier.tl.ue Item N.B. ENVIRONMENTAL ADVISORY COUNCIL STAFF REPORT MEETING OF JULY 3, 2002 I. NAME OF PETITIONER/PROJECT: Petition No.: PUDZ-2002-AR-2491 Petition Name: Arrowhead PUD Applicant/Developer: James E. Williams, Jr. and Diane Williams Engineering Consultant: Hole Montes, Inc. Environmental Consultant: Turrell & Associates, Inc. II. LOCATION: The subject property consisting of 307 acres of improved and unimproved pasture is located in the SW quadrant of the intersection of Lake Trafford Road and the planned extension of Carson Road in Immokalee in Section 6, Township 47 South, Range 29 East, and Section 31 Township 46 South, Range 29 East, Collier County, Florida. III. DESCRIPTION OF SURROUNDING PROPERTIES: ZONING DESCRIPTION N - A Lake Trafford Elementary/Undeveloped C-3 Existing Handy Food Store S - A-MHO Undeveloped E - VR Mobile home park under development A-MHO Existing mobile home park W - A-MHO Undeveloped IV. PROJECT DESCRIPTION: The petitioner is requesting to amend the currently approved 307-acre Arrowhead Planned Unit Development (PUD). The PUD currently permits 900 residential dwelling units consisting of 276 single-family units, 324 multi-family units and 300 mobile home units. Also, currently permitted are 15-acres of commercial uses that allow for 130,680 feet of gross leasable floor area. The EAC Staff Report Page 2 of 9 proposed amendment is to eliminate mobile homes as a permitted use while increasing the maximum number of dwelling units from 900 units to 1,194 units. In addition,the 15-acre commercial area will be reconfigured as depicted on the PUD Master Plan with more frontage on lake Trafford Road. V. GROWTH MANAGEMENT PLAN CONSISTENCY: Future Land Use Element: The subject PUD has two land use classifications based on the Immokalee Future Land Use Map. The first residential area is comprised of 259 acres and is located within the Low Residential District. Residential lands in this area are eligible for a density of 4 units per acre and a maximum of 1,036 units. The second land use classification is the Neighborhood Center District, which allows a mix of uses including commercial, residential and government facilities. This classification allows a maximum density of up to 12 units per acre. Since 33.3 acres are located within this classification, the project is eligible for an additional 400 dwelling units. Based on these land use classifications, the subject PUD is eligible for a maximum of 1,436 dwelling units. Therefore, the proposed 1,194 dwelling units are consistent with the density permitted in the Immokalee Area Master Plan. Conservation & Coastal Management Element: Objective 2.2. of the Conservation and Coastal Management Element of the Growth Management Plan states "All canals, rivers, and flow ways discharging into estuaries shall meet all applicable federal, state, or local water quality standards". To accomplish that,policy 2.2.2 states"In order to limit the specific and cumulative impacts of stormwater runoff, stormwater systems should be designed in such a way that discharged water does not degrade receiving waters and an attempt is made to enhance the timing, quantity, and quality of fresh water(discharge) to the estuarine system". This project is consistent with the objectives of policy 2.2.2 in that it attempts to mimic or enhance the quality and quantity of water leaving the site by utilizing lakes and interconnected wetlands to provide water quality retention and peak flow attenuation during storm events. With regards to native vegetation preservation and wetland issues, the following Objectives and Policies apply: Objective 6.2 states, "There shall be no unacceptable net loss of viable naturally functioning marine and fresh water wetlands, excluding transitional zone wetlands which are addressed in Objective 6.3". This project accomplishes this goal by only impacting .08 acres of wetlands. EAC Staff Report Page 3 of 9 Policy 6.2.13 states, "Proposed development on parcels containing viable naturally functioning freshwater wetlands shall cluster development to maintain the largest contiguous wetland area practicable and shall be designed to disturb the least amount of native wetland vegetation practicable and to preserve the pre-development hydroperiod". This project accomplishes this with minimal impacts to wetlands with development. Policy 6.4.7 states, "All other types of new development shall be required to preserve an appropriate portion of the native vegetation on the site as determined through the County development review process. Preservation of different contiguous habitats is to be encouraged. When several different native plant communities exist on site, the development plans will reasonably attempt to preserve examples of all of them if possible. However this policy shall not be interpreted to allow development in wetlands, should the wetlands alone constitute more than the portion of the site required to be preserved. Exceptions shall be granted for parcels which can not reasonably accommodate both the preservation area and the proposed activity". The project accomplishes this by preserving the contiguous upland areas surrounding the wetlands. VI. MAJOR ISSUES: Stormwater Management: Arrowhead is a proposed PUD project located in Immokalee, on the south side of Lake Trafford Road and about a mile east of S.R. 29. The site is located within the Corkscrew slough Basin. The total area of the site consists of approximately 307 acres. A wetland crosses the property from north to south where off-site flows from the north are conveyed through. There is a creek on the west side of the property and a fresh water slough to the south. The proposed drainage system for the project will consist of four separate drainage basins discharging into four separate locations. Some of the off-site flows coming from the north will be bypassed through the existing wetland preserve all the way south into the freshwater slough, and away from the internal drainage system. The rest of the off-site flows coming from the north will continue along the western boundary of the project,bypassing the water management system. The off-site flows from the east will be received by a small wetland preserve near the eastern boundary and it will be included in the drainage area. The discharge rate will be limited to 0.15 cfs/acre in accordance to Ordinance 90-10 as amended. The stormwater management system as proposed meets the SFWMD minimum criteria. EAC Staff Report Page 4 of 9 Environmental: Site Description: The project site consists of a home site, improved and unimproved pasture totaling 307 acres and is currently used as pasture for grazing of approximately 200 cattle. The majority of the remainder of the site consists of mixed wetland hardwoods that have been slightly stressed due to the cattle grazing and pasture improvement activities. Ground cover and mid-story vegetation has been significantly impacted on the entire site, which is comprised of 48.67 acres of wetlands and 258.33 acres of uplands. Uplands on-site include live oak hammock (15.81 acres), improved pasture (237.83 acres) and an existing home site (4.69 acres). . I Fig. 1:Typical pasture on site Fig. 2: Pasture land facing southern wetland in distance. -a ti++. a ;%;:ra,'r +,r'".:",-'? '� ._ ,— ,mac- pair ,� t aye14c / +'" - '� tet� «.;ii:A ,i'..',4 '''Ata'; tti ..._ t ..i f�is„, :',1'...t 4*N-.. %-g1,-7., _1$ it .. _.aee.is F ix" I - Fig.3:Live oak hammock at center of site EAC Staff Report Page 5 of 9 C Wetlands: South Florida Water Management District/Collier County jurisdictional wetlands total 48.67 acres. The limits of SFWMD jurisdictional wetlands and "other surface waters" were reviewed and approved in the field on June 6, 2002. Wetlands on-site include mixed wetland hardwoods (28.12 acres), improved pasture-hydric (10.01 acres), a cypress head (1.06 acres), flag marsh (6.99 acres), cattle pond (0.70 acres) and other surface waters- ditches (1.79 acres). •* A "..• vim. A 3,'-'.:. . 5 '. ,d ."� ,,'.: , a 5 9t t : I�r it . . I !. 7' .4 .i. ii;: 01 Cii,..S. :r. , ,, •;14i' Pilli q. .,-L•1 -- r L • .,....,-4.4.. , Fig.4 and 5: Isolated cypress head Elevations of historic wet season's high water levels were determined to range from 26.0' NGVD at the northern property boundary to approximately 21.5' NGVD in the southern slough. Water levels this passed wet season were consistent with historic levels in the two isolated wetlands. Levels in the remaining wetland areas were approximately two inches lower than the observed historic levels. A total of 0.08 acres of impacts to SFWMD/Collier County jurisdictional wetlands are proposed as a result of a proposed road crossing across a swale. These impacts will be offset by the preservation and restoration of the remaining on-site wetlands. Preservation Requirements: A total of 48.67 acres of wetlands with an additional 25.73 acres of upland buffer or edge habitat will be retained on site. This exceeds the 25% existing native vegetation preservation requirement in section 3.9.5.5.4 of the Collier County Land Development Code. EAC Staff Report Page 6 of 9 Listed Species: A listed plant and wildlife species survey was conducted between January 1, 2002 and April 30, 2002 with a total of 36 hours spent on site. The following listed species were observed on the subject property: White Ibis Eudocimus albus SSC Tri-colored Heron Egretta tricolor SSC The following listed species were observed on or utilizing canals adjacent to the property: American kestrel Falco sparveriusl SSC Snowy egret Egretta thula SSC Woodstork Mycteria americana FE, SE VII. RECOMMENDATIONS: Staff recommends approval of PUDZ-2002-AR-2491 "Arrowhead PUD" with the following stipulations: Stormwater Management: 1. This project shall be reviewed and approved by Collier County Stormwater Management Section prior to construction plans approval. 2. This project must obtain a surface water management permit from the South Florida Water Management District. 3. Offsite flows going through the property shall be analyzed to make sure that there is sufficient capacity in the Fishbranch Creek and wetland to convey them. If the capacity is not adequate, improvements will be required to make sure that the upstream flows are properly conveyed through. The flows will be based on the actual runoff of the lands and not on the culverts under Trafford Lake Road. This information shall be provided at the time of construction plan review. Environmental: 1. Add 2 rows to Table 1 on pg 18 of the PUD document as shown below: a. Rear Yard Principal abutting preserve: 25' b. Rear Yard Accessory abutting preserve: 10' EAC Staff Report Page 7 of 9 2. Add the following underlined language to 8.7-E of Water Management on pg 41 of the PUD Document: "...around all wetlands to be preserved in lieu of the buffer requirements of section 3.2.8.4.7.3 of the LDC...." 3. Add the following underlined language to section 8.8-A of Environmental: A. Native Vegetation preservation shall conform to the requirements of subsection 3.9.5.5.4 of the Collier County LDC. For this site, 74.4 acres of native vegetation shall be preserved on-site. 4. Replace section 8.8-E of Environmental with the following underlined language: E. Buffers shall be provided around wetlands, extending at least fifteen(15) feet landward from the edge of wetland preserves in all places and averaging twenty-five (25) feet from the landward edge of wetlands. Where natural buffers are not possible, structural buffers shall be provided in accordance with the State of Florida Environmental Resources Permit Rules and be subject to review and approval by Current Planning Environmental Staff. 5. In section 8.13-A of the PUD document on pg 44, document the status and result of the archeological significance of the wooden structure also found on-site. EAC Staff Report Page 8 of 9 PREPARED BY: / 1+ UN OZ STAN CHRZANOWS , P.E. DATE SENIOR ENGINEER .//11/0 JULY C. ADARMES MINOR. P.E. DATE SENIOR ENGINEER ‘,.//(//9 z_ KIM HADLEY DATE ENVIRONMENTAL SPECIALIST 2°." 41/ 6 /iyoz RAYMOND BELLOWS DATE CHIEF PLANNER REVIEWED BY: . y EAC Staff Report Page 9 of 9 C i p. Li .., i , //./fto THOMAS E. KUCK, P.E. DATE ENGINEERING SERVICES DIRECTOR b//6/0 2.... SUSAN MURRAY, AICP DATE CURRENT PLANNING MANAGER INTERIM PLANNING SERVICES DIRECTOR APPROVED BY: Air AtioilmorAl ....Z.011/411/1111, JOS ,' . SCHMIT DATE CO TY DEVELOPMENT &ENVIRONMENTAL SERVICES ADMINISTRATOR r.- ENVIRON/' 0 TAL ADVISOR COUNCIL (I THOMAS W. SANSBURY, CH' I' AN DATE T l A CO ttie-r C014 Val/ ,=,,i3 ^''a''.3,Ws+"'` T(t.v.,wncs---.-=-marcs Memorandum To: Environmental Advisory Council Members From: Ron Hovell,P.E., Coastal Projects Manager, Public Utilities Engineering Department l Date: July 5,2002 Subj: Beach Activities Requirements 1. As requested at the EAC meeting on July 3, 2002, the beach activities requirements as specified in permit conditions and in the rock removal plan required by the consent order are summarized below and copies of the documents are enclosed. a. FDEP beach re-nourishment permit i. Specific condition#9 requires beach compaction testing and tilling if warranted ii. Specific condition #10 requires the removal of escarpments b. Rock Removal Plan i. Rock Removal Phase item c. specifies sand sifting which needs to be completed on Vanderbilt Beach this winter ii. Maintenance Phase item a. describes continuous beach raking Enclosures - FDEP permit - Consent Order - Rock Removal Plan Cc: Bill Lorenz, Natural Resources Department Director .. COPY CERTIFIED - RETURN RECEIPT REQUESTED October 30, 2001 Mr. Ron Hove11 Collier County 3301 East Tamiami Trail Naples, Florida 33962 RE: Vanderbilt/Park Shore/Naples Beach/Marco Island Restoration Project Permit Modification No. 0178772-002-JC To Wetland Resource Permit 11-2544739 & Coastal Construction Permit DBS9A0308 To Wetland Resource Permit 11-1460389 & Coastal Construction Permit DBS880208 As previously modified on May 28, 1999 & January 19, 2001 (No. 0178772-001-JC) Dear Mr. Hovel!: Your request to modify the above referenced permits has been received and reviewed by Department staff. The proposed permit modification (File No. 0178772-002-JC) is to increase the amount of sand that may be placed on these beaches from an upland sand source within a _given year. Prior to this request, the permittee was authorized to truck in 50,000 c.y. of sand annually. However, due to Tropical Storm Gabrielle, the permittee was unable to keep up with the sand loses by placing only 50,000 c.y. per year. The Department was concerned that the permittee's original request to bring in 400,000 c.y. in one interval had the potential to cause impacts. As an alternative, the Department suggested maintaining the 50,000 c.y. amount, continuing the required monitoring between intervals, and allowing more than one placement event per year if the monitoring demonstrated that the a subsequent event was not likely to cause adverse impacts. The permittee revised their request accordingly. Beach nourishment within the project area using sand obtained from an offshore borrow area shall require authorization by a new joint coastal permit. PROJECT DESCRIPTION: The project description shall be revised as follows, (strikethroughs are deletions, underlines are additions): Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 2 The permittee is authorized to place up to 50,000 cubic yards of sand annually periodically on the beach within the previously approved beach restoration project areas using sand obtained from an upland source in accordance with plans and specifications approved by the Department. SPECIFIC CONDITIONS: The specific conditions shall be revised as follows (ctrikethrougha are deletions, underlines are additions): 1. At least 30 days prior to commencement of each annual beach nourishment event, the permittee shall submit two complete sets of final construction plans and specifications, certified by an engineer duly registered pursuant to Chapter 471, Florida Statutes. The plans and specifications shall be consistent with the attached permit drawings and shall include the following: a. A plan view of the proposed beach fill placement areas depicting the limits of the fill placement, the pre-fill mean high-water line, and the erosion control line. b. A sufficient number of elevation views of the proposed beach fill construction template to adequately describe the project, with the pre-fill profile and the erosion control line indicated. c. Details of construction, including borrow material handling and processing requirements, general construction procedures and equipment to be used and construction access. d. An anticipated construction schedule. 2. Any sand that is placed on the beach must meet the criteria in Chapter 161, F.S., and Rule 62B-41.007, F.A.C., as well as the criteria in Section 373.414, F.S., and Rules 62-4 and 62-302, F.A.C. The permittee shall supply relevant geotechnical and geological information to the Department for review at least 30 days prior to each construction event. The Department will review the geotechnical and geological information for the material, and provide a notice to proceed once it is confirmed that the material meets the rule criteria for beach compatibility. 3. The Department shall approve the specific segment of shoreline to receive beach fill using upland sand for each annual beach nourishment event. The permittee shall conduct attached Upland Sand/ Sea Turtle Reproducibility Study and include the results in the reports of marine turtle nesting activity required below. When a specific segment of shoreline is proposed for repeated placement of beach fill, then department shall use the results of these reports in evaluating the impacts of the project on marine turtle nesting and the acceptability of repeated placement within this segment of shoreline. 4 . A sufficient number of topographic profile surveys of the proposed beach fill placement area shall be provided to adequately measure the pre- and post-construction conditions. The profiles shall be surveyed prior to placement of fill material and depicted on the elevation views � � y Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 3 of the construction plans referenced above and the profiles shall be surveyed immediately following completion of beach fill placement in the area. All profile surveys shall be measured along the same azimuth as established at adjacent DNR reference monuments and extend seaward to wading depth (approximately -4.0 feet NGVD). This information shall be included in the annual hydrographic monitoring reports required by the permits and these reports and the associated project monitoring shall be conducted until expiration of the permits. 5 . The placement of the sand fill on the beach is expected to be via truck hauls from the upland borrow site then spread on the beach using a small bulldozer or loader. Using these methods significant quantities of the dry sand should not be suspended in the gulf waters of the state. However, best management practices for erosion and turbidity control should be implemented as necessary during construction to minimize turbidity and prevent turbid discharges outside a 150 meter mixing zone in excess of 29 NTU's above background turbidity levels of the surrounding waters. Methods shall include. but are not limited to the use of staged construction or ceasing construction during periods of strong waves or currents. The conduct of turbidity sampling at defined intervals during construction is not specified in this permit: however, at its discretion the department may require turbidity sampling upon notice to the permittee. The contractor shall assign an individual(s) familiar with construction techniques and turbidity to be present at the project area at all times. This individual shall serve as the site supervisor and shall have authority to alter construction techniques or shut down the construction operations if turbidity exceeds state water quality standards. The following measures shall be taken immediately by the permittee whenever turbidity levels within waters of the State outside a 150 meter mixing zone surrounding the project site are in excess of state water quality standards: a) Immediately cease all work contributing to the water quality violation: b) Modify the work procedures that were responsible for the violation; c) Install turbidity containment devices and/or repair or adjust any non-functioning turbidity containment devices as appropriate: d) Notify the Bureau Office of Beaches and Coastal Systems and the South Florida District office within 24 hours of the time the violation is first detected. 6 . No operation. transportation or storage of equipment or materials is authorized on the sandy beach seaward of the dune crest or rigid coastal structure during the marine turtle nesting season, May 1 through October 31. 7 . It is the responsibility of the permittee to ensure that the project area and access sites are surveyed for marine turtle nesting activity. All nesting surveys, nest relocations, screening or caging activities etc. shall be conducted only by persons with prior experience and training in these activities and is duly authorized to conduct such activities through a valid permit issued by the Department, Division of Marine Resources, pursuant to Florida Administrative Code 62R-1. Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 4 The following variables shall be monitored on each of the beach areas proposed for fill placement. One year of preplacement monitoring is required for each of the beach sites. Similar nesting data should be presented for the remainder of each beach that does not receive fill material. Characteristic Parameter Measurement Variable Nesting False crawls- Visual assessment of all false Number and location(i.e.,fill or Success number crawls control or not filled)of false crawls _ False crawl- Categorization of the stage at Number in each of the following type which nesting was abandoned categories:emergence-no digging, preliminary body pit,abandoned egg chamber False crawls The location of every false crawl Position of false crawl and nest and &nests- and false nest shall be marked on mapped locations location a aerial photograph and referenced to the R-monument Nests Location of all marine turtle Number and location,(i.e.,fill or nests shall be marked on an aerial control or not filled) of nests, photograph,and approximate distance to mean high water line distance to the tide or wrack line (recommended). Any abnormal estimated cavity morphologies should be reported. Lost Nests The number of nests lost to inundation,erosion or the number with lost markers that could not be relocated Reproductive Emergence Standard survey protocol Numbers of the following:unhatched Success &hatching eggs,depredated eggs,live pipped success eggs,dead pipped eggs,live hatchlings in nest,dead hatchlings in nest,hatchlings emerged Physical Beach Profile Standard survey techniques Beach elevation at three transects, characteristics one 100'from the edges of the fill and one in center of fill area. Sand Grain Sieve Analysis using standard set Samples at 0", 18",and 24"depths at Size of sieves and Wentworth Scale three locations,toe of dune,midberm, and landward of MHW,along each transect Moisture Piezometer readings Piezometers should be established content along each profile transect Temperature Thermister readings Thermisters should be buried at three locations along each profile transect Compaction Cone Penetrometer Units Measurements should be taken concurrent with grain size sampling. 8 a. Nests deposited within the project area shall be left in situ unless other factors threaten the success of the nest. If any nests are determined to have been deposited within the project area and are not relocated due to conditions unrelated to the project, such nests will be marked and the actual location of the clutch determined. Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 5 9 . If any upland sand remains within the segment of shoreline receiving beach fill, then prior to April 15 of each year sand compaction shall be monitored in this area in accordance with a protocol agreed to by the Department and the applicant. At a minimum, the protocol provided below shall be followed. If required, the area shall be tilled to a depth of 36 inches. All tilling activity must be completed prior to April 15. Additional tilling might be required if there are indications that the fill material is impeding marine turtle nesting activity due to cementation or consolidation. A report on the results of compaction monitoring shall be submitted to the Department prior to any tilling actions being taken. An annual summary of compaction surveys and the actions taken shall be submitted to the Department. This condition shall be evaluated annually and may be modified if necessary to address sand compaction problems identified during the previous year. a. Compaction sampling shall be conducted along shore-normal transects spaced at approximately 500-foot intervals within each beach fill area. Along the transects one sampling station shall be at the seaward edge of the dune/bulkhead line (when material is placed in this area); one sampling station shall be midway between the dune line and the high water line (normal wrack line); and one sampling station shall be just landward of the high water line. b. At each station, the cone penetrometer shall be pushed to a depth of 6, 12, and 18 inches three times (three replicates). Material may be removed from the hole if necessary to ensure accurate readings of successive levels of sediment. The penetrometer may need to be reset between pushes. especially if sediment layering exists. Layers of highly compact material may lay over less compact layers. Replicates shall be located as close to each other as possible, without interacting with the previous hole and/or disturbed sediments. The three replicate compaction values for each depth shall be averaged to produce final values for each depth at each station. Reports shall include all 27 values for each transect line, and the final 9 averaged compaction values. c. If the average value for any depth exceeds 500 psi for any two or more adjacent stations, then that area shall be tilled prior to April 15. If values exceeding 500 psi are distributed throughout the project area but in no case do those values exist at two adjacent stations at the same depth, then consultation with the Department shall be required to determine if tilling is required. If a few values exceeding 500 psi are present randomly within the project area. tilling shall not be required. 10 . Visual surveys for escarpments along each segment of shoreline receiving beach fill shall be conducted prior to April 15 as long as any upland sand remains within that segment of shoreline. Results of the surveys shall be submitted to the Department prior to any action being taken. Escarpments that interfere with sea turtle nesting or that exceed 18 inches in height for a distance of 100 feet shall be leveled to the natural beach contour by May 1. The Department shall be contacted immediately if subsequent reformation of escarpments that interfere with sea Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 6 turtle nesting or that exceed 18 inches in height for a distance of 100 feet occurs during the nesting and hatching season to determine the appropriate action to be taken. If it is determined that escarpment leveling is required during the nesting or hatching season, the Department will provide a brief written authorization that describes methods to be used to reduce the likelihood of impacting existing nests. An annual summary of escarpment surveys and actions taken shall be submitted to the Department. 11 . Reports on all nesting activity and marine turtle protection measures taken during construction shall be provided through the permit expiration date. Monitoring of nesting shall include daily surveys and any additional measures authorized by the Department. Reports submitted shall include daily report sheets noting all activity, nesting success rates, hatching success of all relocated nests, hatching success of a representative sampling of nests left in place (if any), dates of construction and names of all personnel involved in nest surveys and relocation activities. After thorough review the staff has determined that the proposed alteration does not increase the potential for adverse impact on the coastal system, public beach access seaward of the mean high water line or nesting sea turtles and hatchlings and their habitat, and that the proposed alteration does not reduce the design adequacy of the project. Since the proposed modification is not expected to result in any adverse environmental impact or water quality degradation and is expected to be of environmental benefit, the permit is hereby modified. By copy of this letter we are notifying all necessary parties of the modification. This letter of approval does not alter the April 1, 2006 expiration date, other Specific or General Conditions, or monitoring requirements of the permit. This letter must be attached to the original permit. This permit is hereby modified unless a sufficient petition for an administrative hearing is timely filed under sections 120.569 and 120.57, Florida Statutes, as provided below. The procedures for petitioning for a hearing are set forth below. Mediation under Section 120.573, F.S., is not available for this proceeding. A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57, F.S. The petition must contain the information set forth below and must be filed (received by the clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000. Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in further modification of the permit or even a denial of the application. If a sufficient petition for an administrative hearing or request for an extension of time to file a petition is timely filed, this J , Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 7 permit modification automatically becomes only proposed agency action on the application subject to the result of the administrative review process. Accordingly, the applicant is advised not to commence construction or other activities under this permit modification until the deadlines noted below for filing a petition for an administrative hearing or request for an extension of time has expired. Under rule 62-110.106(4), Florida Administrative Code, a person whose substantial interests are affected by the Department's action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon. If a request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable neglect. In the event that a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interests will be affected by the outcome of the administrative process have the right to petition to intervene in the proceeding. Any intervention will be only at the discretion of the presiding judge upon the filing of a motion in compliance with rule 28-106.205, F.A.C. In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(1), F.A.C., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under section 120.60(3), F.S., must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. Under section 120.60(3), F.S., however, any person who has asked the Department for notice of agency action may file a petition within 14 days of receipt of such notice, regardless of the date of publication. The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing. The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. In accordance with rule 28-106.201, F.A.C., a petition that disputes the material facts on which the Department's action is based must contain the following information: Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 8 (a) The name and address of each agency affected and each agency's file or identification number, if known; (b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner's representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner's substantial interests are or will be affected by the agency determination; (c) A statement of when and how the petitioner received notice of the agency decision; (d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate; (e) A concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency's proposed action; (f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency's proposed action; and (g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency's proposed action. A petition that does not dispute the material facts on which the Department's action is based shall state that no such facts are in dispute and otherwise shall contain the same information as set forth above, as required by rule 28-106.301, F.A.C. Under sections 120.569(2)(c) and (d), F.S., a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed. This action is final and effective on the date filed with the Clerk of the Department unless a petition is filed in accordance with the above. Upon the timely filing of a petition this order will not be effective until further order of the Department. This permit modification constitutes an order of the Department. The applicant has the right to seek judicial review of the order under section 120.68. F.S., by the filing of a notice of appeal under rule 9.110 of the Florida Rules of Appellate Procedure with the Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000; and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within 30 days from the date when the final order is filed with the Clerk of the Department. When there has been no publication of notice of agency action or notice of proposed agency action as prescribed in rule 62-110.106, F.A.C., a person may request a copy of the agency action. The Department shall upon receipt of such a request, if agency action has occurred, promptly provide the person with notice. The Department does not require notice of this agency Notice of Permit Modification Mr. Harold E. Huber Permit Modification No. 0178772-002-JC Page 9 action to be published. However, the applicant may elect to publish notice as prescribed in rule 62-110.106, F.A.C., which constitutes notice to the public and establishes a time period for submittal of any petition. If you have any questions regarding this matter,please contact me at the letterhead address or by telephone at(850) 487-4471, ext. 104. Sincerely, Martin K. Seeling Environmental Administrator Office of Beaches and Coastal Systems MKS/mcc cc: Jon Staiger, City of Naples Lucy Blair, DEP, South Florida District Office Robbin Trindell, BPSM Michael Nowicki, USACE, Jacksonville (File No.199404092(IP-MN)) Jennifer Cowart, DEP, OBCS Lethie Lanham, DEP, OBCS OBCS Permit Information Center FILING AND ACKNOWLEDGMENT FILED, on this date, pursuant to Section 120.52, Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged. Deputy Clerk Date • • • AGENDA TRANSMITTAL SLIP 1 Agenda Item Date Submitted : 8/27/01 Requested Agenda Date: 9/11/01 APPROPRIATE;_HEADING(CIRCLE ONE) - ❑ (2) Approval of Agenda and Minutes ❑ (3) Proclamations ❑ g (4) Service Awards I, ❑ (5) Presentations ❑ (6) Public Petitions & Comments on ❑ (7) Board of Zoning Appeals General Topics ❑ (8) Advertised Public Hearings ❑ (9) Board of County Commissioners ❑ (10) County Manager's Report ❑ (11) Airport Authority ❑ (12) County Attorney's Report ❑-41.3,) Other Constitutional Officers ❑(14) Staff and Commission General 0(15) Future Agendas �� onsent Agenda Communications ❑ (17) Summary Agenda Requested by: '76k-- �--�� Date: g•Z-1 '°I Reviewed by: Date: Harold E. Huber, Project Manager III Roy B.Anderson, P.E., Director Public Utilities Engineering Dept. Public Utilities Engineering Dept. Division Head: Date: County Manager: Date: James V. Mudd, P.E.,Administrator Thomas W.011iff Public Utilities Division County Manager Item Title: APPROVE A CONSENT ORDER WITH THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION REGARDING THE COLLIER COUNTY BEACH RESTORATION PROJECT List of Documents Attached: 1. Executive Summary(required) 2. Consent Order Fund: (195): Tourist Development Cost Center. (110406) Beach Renourishment, Category"A" Project Number: (10509) Beach & Inlet Maintenance Activities , EXECUTIVE SUMMARY APPROVE A CONSENT ORDER WITH THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION REGARDING THE COT,1,W,R COUNTY BEACH RESTORATION PROJECT OBJECTIVE: To obtain approval for execution of the attached Consent Order regarding a Notice of Permit Violation on the Collier County Beach Restoration Project. CONSIDERATIONS: On March 25, 1998 the Florida Department of Environmental Protection issued a Notice of Permit Violation to Collier County relative to placement of rocks on the beach. The Department of Environmental Protection has prepared the attached Consent Order which reflects the issues necessary to resolve the violations that have occurred. Upon execution of the Consent Order by all parties, Collier County will have thirty (30) days to submit a plan of action as setforth in paragraph 9 of the Consent Order. The staff is currently preparing such plan of action which will comply with the requirements contained in the Consent Order. Approval for execution of the Consent Order is hereby requested whereby the time frame for action will be established. FISCAL IMPACT: None at this time. It is anticipated that the required plan of action can be performed within the proposed budget for beach maintenance activities in Fund 195, Tourist Development, Category"A"projects. GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan related to this action. RECOMMENDATION: That the Board of County Commissioners authorize the Chairman to execute the attached Consent Order regarding a Notice of Violation on the Collier County Beach Restoration proj ect. PREPARED BY: DATE: Harold E. Huber, Project Manager III Public Utilities Engineering Department REVIEWED BY: DATE: Roy B. Anderson, P.E., Director Public Utilities Engineering Department APPROVED BY: DATE: James V. Mudd, P.E., Administrator Public Utilities Division Attachment BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION STATE OF FLORIDA DEPARTMENT IN THE OFFICE OF BEACHES OF ENVIRONMENTAL PROTECTION, AND COASTAL SYSTEMS Complainant, OGC FILE NO. 01-XXXX vs. COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent. CONSENT ORDER This Consent Order is made and entered into between the State of Florida Department of Environmental Protection ("Department"), and Collier County Board of County Commissioners ("Respondents") to reach settlement of certain matters at issue between the Department and Respondents. The Department finds and the Respondents admits the following: 1. The Department is the administrative agency of the State of Florida charged with the duty to administer and enforce Chapter 161, Florida Statutes ("F.S."), and the rules promulgated thereunder, Florida Administrative Code ("F.A.C.") Title 62B. The Department has jurisdiction over the matters addressed in this Consent Order. 2. Respondents are considered persons within the meaning of Section 161 .054(1), F.S. 3. Respondents performed a beach restoration project at Naples and Vanderbilt Beach, in which unacceptable rock material was placed on the beach. 4. During the beach restoration project, the Department withheld enforcement action while the County's contractor, T. L. James, Inc., conducted a rock removal operation which consisted of one "rake". Erosion of the beach fill project continued to expose pockets of rocks embedded in the beach and the rocks were then scattered along the surface of the beach by waves. The County purchased beach- cleaning equipment, but their efforts were insufficient to maintain a beach free of exposed rocks. The County also contracted a one-time intensive rock removal operation for several discreet segments of Naples Beach. 5. Recognizing that a continuing cleanup effort would be required to address the problem, on March 25, 1998, the Department notified the Respondents, through a Notice of Permit Violation, that the placement of the rocks on the beach is in violation of Rule 62B-41.007(2)(j), P.A.C. 6. The Department's Notice of Permit Violation advised the Respondents that the Department would require implementation of an intensified program to remove embedded rocks from the beach berm and exposed rocks from the surface of the beach and nearshore. The program would require continued maintenance operations that would include: a sampling procedure to identify the areas where concentrations of embedded rocks exist; identifying resources that the County would commit to removing rocks; and a compliance standard for removal of embedded and exposed rocks from the beach. The goal of the program would be the removal of all rocks before the next beach nourishment project. 7. The current and continued presence of rocks on the beach is a violation of Rule 62B-41.007(2)(j), F.A.C. 8. On December 6, 2000, the Department cited Collier County for employing an unauthorized method of dual-layering on Naples Beach, for the apparent purpose of burying unacceptable rock material, without benefit of a Department permit. Having reached a resolution of the matter, Respondents and the Department mutually agree and it is so, ORDERED: 9. Respondents shall comply with the following actions within the stated time periods: a) Within thirty (30) days of the effective date of this Consent Order, the Respondents shall submit a plan (to the Department's satisfaction) that includes the following: i) Removal of embedded rocks from the beach berm and exposed rocks from the surface of the beach and nearshore areas; ii) Continued maintenance operations for the life of the project; iii) Establishment of a sampling procedure to identify the areas where concentrations of embedded rocks exist, including the nearshore areas; iv) Identify resources that the County would commit to removing rocks; and v) A compliance standard for removal of embedded and exposed rocks from the beach and nearshore areas. b) Submit revisions to the plan within thirty (30) days following a written request by the Department. c) Implementation of the rock cleanup plan described above upon approval by the Department,. d) Within thirty (30) days, pay a fine of $5,000, or propose an environmental restoration or enhancement project of comparable value, which would benefit the coastal ecosystem or improve public beach access in this area to the satisfaction of the Department. 10. The approved cleanup plan and, if proposed, approved restoration or enhancement project are incorporated herein to this Consent Order as Exhibits A and B, respectively. 11. Respondents agree to pay the Department stipulated penalties in the amount of $250 per day for each and every day Respondents fail to comply with any of the requirements of paragraph 9 of this Consent Order. A separate stipulated penalty shall be assessed for each violation of this Consent Order. Within 30 days of written demand from the Department, Respondents shall make payment of the appropriate stipulated penalties to "The Department of Environmental Protection" by cashier's check or money order and shall include thereon the OGC number assigned to this Consent Order and the notation "Ecosystem Management and Restoration Trust Fund". Payment shall be sent to the Department of Environmental Protection, Jim Martinello, Environmental Manager, Office of Beaches and Coastal Systems, 3900 Commonwealth 4 Boulevard, Mail Station 300, Tallahassee, Florida 32399. The Department may make demands for payment at any time after violations occur. Nothing in this paragraph shall prevent the Department from filing suit to specifically enforce any of the terms of this Consent Order. If the Department is required to file a lawsuit to recover stipulated penalties under this paragraph, the Department will not be foreclosed from seeking civil penalties for violations of this Consent Order in an amount greater than the stipulated penalties due under this paragraph. 12. If any event occurs which causes delay or the reasonable likelihood of delay, in complying with the requirements or deadlines of this Consent Order, Respondents shall have the burden of proving the delay was or will be caused by circumstances beyond the reasonable control of the Respondents and could not have been or cannot be overcome by Respondents due diligence. Economic circumstances shall not be considered circumstances beyond the control of Respondents, nor shall the failure of a contractor, subcontractor, materialman or other agent (collectively referred to as "contractor") to whom responsibility for performance is delegated to meet contractually imposed deadlines be a cause beyond the control of Respondents, unless the cause of the contractor's late performance was also beyond the contractor's control. Upon occurrence of an event causing delay, or upon becoming aware of a potential for delay, Respondents shall notify the Department orally within 24 hours or by the next working day and shall, within seven calendar days of oral notification to the Department, notify the Department in writing of the anticipated length and cause of delay, the measures taken or to be taken to prevent or minimize the delay and the timetable by which Respondents intend to implement these measures. If the parties can agree that the delay or anticipated delay has been or will be caused by 5 circumstances beyond the reasonable control of Respondents, the time for performance hereunder shall be extended for a period equal to the agreed delay resulting from such circumstances. Such agreement shall adopt all reasonable measures necessary to avoid or minimize delay. Failure of Respondents to comply with the notice requirements of this paragraph in a timely manner shall constitute a waiver of Respondents right to request an extension of time for compliance with the requirements or deadlines of this Consent Order. 13. Persons who are not parties to this Consent Order but whose substantial interests are affected by this Consent Order have a right, pursuant to Sections 120.569 and 120.57, F.S., to petition for an administrative hearing on it. The Petition must contain the information set forth below and must be filed (received) at the Department's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida 32399-3000, within 21 days of receipt of this notice. A copy of the Petition must also be mailed at the time of filing to the District Office named above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative hearing pursuant to Sections 120.569 and 120.57, F.S. The Petition shall contain the following information: (a) The name, address, and telephone number of each petitioner; the Department's Consent Order identification number and the county in which the subject matter or activity is located; (b) A statement of how and when each petitioner received notice of the Consent Order; (c) A statement of how each petitioner's substantial interests are affected by the Consent Order; (d) A statement of the material facts disputed by petitioner, if any; (e) A statement of facts which petitioner contends warrant reversal or modification of the Consent Order; (f) A statement of which rules or statutes petitioner contends require reversal or modification of the Consent Order; and (g) A statement of 6 the relief sought by petitioner, stating precisely the action . petitioner wants the Department to take with respect to the Consent Order. If a Petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. Persons whose substantial interests will be affected by any decision of the Department with regard to the subject Consent Order have the right to petition to become a party to the proceeding. The Petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Sections 120.569 and 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-106.205, F.A.C. A person whose substantial interests are affected by the Consent Order may file a timely petition for an administrative hearing under Sections 120.569 and 120.57, F.S., or may choose to pursue mediation as an alternative remedy under Section 120.573, F.S., before the deadline for filing a petition. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement. The procedures for pursuing mediation are set forth below. Mediation may only take place if the Department and all the parties to the proceeding agree that mediation is appropriate. A person may pursue mediation by reaching a mediation agreement with all parties to the proceeding (which include the Respondents, the Department, and any person who has filed a timely and sufficient petition for a hearing) and by showing how the substantial interests of each mediating party are affected by the Consent Order. The agreement must be filed in (received by) the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, by the same deadline as set forth above for the filing of a petition. The agreement to mediate must include the following: (a) The names, addresses, and telephone numbers of any persons who may attend the mediation; (b) The name, address, and telephone number of the mediator selected by the parties, or a provision for selecting a mediator within a specified time; (c) The agreed allocation of the costs and fees associated with the mediation; (d) The agreement of the parties on the confidentiality of discussions and documents introduced during mediation; (e) The date, time, and place of the first mediation session, or a deadline for holding the first session, if no mediator has yet been chosen; (f) The name of each party's representative who shall have authority to settle or recommend settlement; (g) Either an explanation of how the substantial interests of each mediating party will be affected by the action or proposed action addressed in this notice of intent or a statement clearly identifying the petition for hearing that each party has already filed, and incorporating it by reference; and (h) The signatures of all parties or their authorized representatives. As provided in Section 120.573, F.S., the timely agreement of all parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, F.S., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within sixty days of the execution of the s agreement. If mediation results in settlement of the administrative dispute, the Department must enter a final order incorporating the agreement of the parties. Persons whose substantial interests will be affected by such a modified final decision of the Department have a right to petition for a hearing only in accordance with the requirements for such petitions set forth above, and must therefore file their petitions within fourteen days of receipt of this notice. If mediation terminates without settlement of the dispute, the Department shall notify all parties in writing that the administrative hearing processes under Sections 120.569 and 120.57, F.S., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action and electing remedies under those two statutes. 14. Entry of this Consent Order does not relieve Respondents of the need to comply with the applicable federal, state or local laws, regulations or ordinances. 15. The terms and conditions set forth in this Consent Order may be enforced in a court of competent jurisdiction pursuant to Section 120.69, F.S. Failure to comply with the terms of this Consent Order shall constitute a violation of Section 161.053, F.S. 16. Respondents are fully aware that a violation of the terms of this Consent Order may subject Respondents to judicial imposition of damages, civil penalties up to $10,000.00 per offense, and criminal penalties. 17. All plans, applications, penalties, costs and expenses, and information required by this Consent Order to be submitted to the Department should be sent to Jim Martinello, Environmental Manager, Office of Beaches and Coastal Systems. 3900 Commonwealth Boulevard, Mail Station 300, Tallahassee, Florida 32399. 18. The Department hereby expressly reserves the right to initiate appropriate legal action to prevent or prohibit any violations of applicable statutes, or the rules promulgated thereunder that are not specifically addressed by the terms of this Consent Order. 9 19. The Department, for and in consideration of the complete and timely performance by Respondents of the obligations agreed to in this Consent Order, hereby waives its right to seek judicial imposition of damages or civil penalties for alleged violations outlined in this Consent Order. Respondents acknowledge but waive its right to an administrative hearing pursuant to Sections 120.569 and 120.57, F.S., on the terms of this Consent Order. Respondents acknowledges its right to appeal the terms of this Consent Order pursuant to Section 120.68, F.S., but waives that right upon signing this Consent Order. 20. The provisions of this Consent Order shall apply to and be binding upon the parties, their officers, their directors, agents, servants, employees, successors, and assigns and all persons, firms and corporations acting under, through or for them and upon those persons, firms and corporations in active concert or participation with them. 21. No modifications of the terms of this Consent Order shall be effective until reduced to writing and executed by both Respondents and the Department. 22. If all of the requirements of this Consent Order have not been fully satisfied, Respondents shall, at least 14 days prior to a sale or conveyance of the property, (1) notify the Department of such sale or conveyance, and (2) provide a copy of this Consent Order with all attachments to the new owner. 23. This Consent Order is a settlement of the Department's civil and administrative authority arising from Chapter 161, F.S., to pursue the allegations addressed herein. This Consent Order does not address settlement of any criminal liabilities which may arise from Sections 161.052(8), 161.053(8), 161.121, and 161.58(1), F.S., nor does it address settlement of any violation which may be prosecuted criminally or civilly under federal law. 24. This Consent Order is a final order of the Department pursuant to Section 120.52(7), F.S., and it is final and effective on the date filed with the Clerk of the 10 Department unless a Petition for Administrative Hearing is filed in accordance with Chapter 120, F.S. Upon the timely filing of a petition this Consent Order will not be effective until further order of the Department. FOR THE RESPONDENT DATE: Collier County DONE AND ORDERED this day of October 2001, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Alfred B. Devereaux, Director Office of Beaches and Coastal Systems. Copies furnished to: Betsy Hewitt Patrick Krechowski 11 e 1 r Collier County Rock Removal Plan Vanderbilt and Naples Beaches Definition: The Nearshore Area is defined as the area between the Mean High Water line and the toe of the project equilibrated profile. Testing Phase Plan a. Visual inspections will reveal exposed rocks on the beach berm and in the vegetated dunes. b. Divers will perform inspections along shore-perpendicular transects in the nearshore area at spacings of approximately every 500 feet to correspond with DEP R-monument locations and their midpoints. These transects shall be conducted along the length of the beach within the regions identified in Tables 1 and 2 and at any other locations in the project area deemed necessary. c. Samples will be taken at the approximate locations shown in Tables 1 and 2 (continuing out approximately every 50 feet until past the nearshore area and any other areas deemed necessary such as any nearshore trough or trench areas where rock accumulations are expected). Each sampling effort shall extend from the surface down to the pre- construction profile of 1995. d. The samples will be sifted with a 3/8" screen or other method deemed appropriate and the volume percentage of embedded rock will be computed. Samples greater than the native beach will be considered incompatible. e. Prior to commencement of sampling, the County shall submit final plans and specifications deemed necessary by the professionals certifying the adequacy of the proposed Testing Phase for the rock removal efforts. These plans and specifications shall include such details as the exact size and depth of each sample, the specific sample locations, as well as the method for determining the "native beach" reference to be used in compatibility comparisons. The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject the plan. f. Upon completion of the Testing Phase, the County shall submit a written report with an assessment providing specific volumes and locations of material identified and summarizing the findings of this Test Phase investigation. This report shall also include any proposed changes to the Removal or Maintenance Phase Plans deemed necessary by the professionals certifying the adequacy of the proposed Testing Phase for the rock removal efforts. The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject the findings and recommendations. Removal Phase Plan a. Exposed rocks on the beach berm will be removed utilizing a combination of established and on-going beach raking operations and hand labor. Hand labor is required for vegetated dunes so as not to destroy established vegetation. / t b. Exposed rocks in the swash zone will be removed utilizing hand labor. c. Prior to commencement of the removal activities, the County shall submit final plans and specifications for removing embedded rock in the beach berm (using a 3/8" screen or other method as deemed appropriate). The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject the plan. d. Prior to commencement of the removal activities, the County shall submit final plans and specifications for removing rocks exposed in the nearshore area. This will include "raking"below Mean Low Water or other operations deemed necessary to remove exposed submerged rocks (using a 3/4"screen or other method deemed appropriate). It is anticipated that many of the exposed rocks will accumulate in the nearshore trough within fifty feet of Mean Low Water. Removal efforts will be focused in this area (pending confirmation from the diving inspections). The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject the plan. e. Upon completion, the County shall submit a written report with an assessment providing specific volumes and locations of material removed and summarizing the findings of this Removal Phase and any proposed changes to the Maintenance Phase Plan. The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject these findings and recommendations. Maintenance Phase Plan (life of the project) a. Collier County currently owns three beach rakes and employs three beach rake operators. The beaches of Vanderbilt, Park Shore,Naples and Marco Island within the project limits are raked year-round. Each section of beach is raked once to twice per week on average. These operations are expected to continue indefinitely with special attention being given to post-storm periods. As the elevation of the beach berm decreases over time, recurring efforts will be made to sift the beach berm (using a 3/8" screen or other method deemed appropriate). b. Hand labor will continue to be employed as needed primarily in the vegetated dunes based on visual observations particularly after storm events. c. Diving inspections will be performed semi-annually and exposed submerged rocks will be removed as needed. d. Exposed rocks in the swash zone will be removed on a monthly basis utilizing hand labor. e. Prior to commencement of the Maintenance Phase, the County shall submit final plans and specifications for the activities deemed necessary for the rock removal efforts as well as the method for establishing the "life of the project" and for determining completion of the clean-up efforts. The Office of Beaches and Coastal Systems shall be given 14 days to accept or reject the plan. SAMPLING PLAN-NAPLES BEACH Depth of Pit Excavation Dune Station (0+60) 1+00 1+50 2+00 2+50 -4+00 0+00 (R-70) 4+00 8+00 (R-71) 12+00 16+00 (R-72) 20+00 24+00 (T-73) 28+00 32+00 (R-74) 36+00 40+00 (R-75) 44+00 48+00 (R-76) SAMPLING PLAN - Vanderbilt Beach Depth of Pit Excavation Station Dune 1+00 1+50 2+00 2+50 28+00(T-25) 32+00 36+00 40+00 44+00 48+00(R-27) 52+00 56+00 60+00(R-28) 64+00 68+00(R-29) 72+00 76+00 80+00 9- RECEIVED JUN 2 0 2002 .v ‘AC Corr ,Cte-k_b )(- Joyce and Douglas Finlay 64-C ` -()-en,✓ #51-1 3430 Gulf Shore Blvd., N. 6 - �-4, p Naples, Florida 34103 (941) 403-4490 /3/g►Q June 18, 2002 ,40'1`51.4'< 3 ; To the Collier County EAC. * L o 0sTn' RE: Beach Raking Soon you will be taking up the issue of beach raking. I will not be able to attend your July 3 meeting but I did want to express my feeling about beach raking. Years ago,when my wife and I visited Florida as tourists, we thought beach raking was a "nice thing". It looked so manicured. In fact, it was hard to believe a community would bother with the expense. However, after moving to Naples we have changed our opinion.Why? Because today we live next to the beach and use it almost every day. We are more knowledgeable about the beach eco-system. We now prefer a NATURAL beach. And we think that most of people who LIVE here feel the same way. Beach raking is so temporary. A manicure seldom lasting more than a day if only hours. Raking is also a totally ineffective way of removing trash. Most of what is removed isn't trash at all, it is sand and shells. Check for yourself. The trash that accumulates in front of the hotels (La Playa, Ritz) or parks (Clam Pass, Lowdermilk) should be removed by hand, not by a machine that grabs everything else. And trash elsewhere is almost non-existent.And then there are the sea turtles (during season). High tides and heavy summer rains can mean that missed nests can later be driven over by raking. Why risk the destruction of even one nest? Although certain conditions may warrant a beach raking, for the most part, regular raking does more harm than good. Please,protect turtle nests and leave the sand and shells on the beach. Give us what we once had and what most of Florida has . . . . A NATURAL BEACH. Si� � ` ;ii, ,s .4 cc:Nancy Prosser, The Conservancy of SW Florida -'4.1111111110.- P. U. E. D. THE CONSERVANCY Of Southwest Florida '02 MAR 29 PM 4: 24 — - - — 1450 Merrihue Drive•Naples, Florida 34102 941.262.0304•Fax 941.262.0672 www.conservancy.org March 27, 2002 Mr. Tom Sansbury Chairman, Collier County Environmental Advisory Council Dear Mr. Sansbury: On behalf of The Conservancy of Southwest Florida I would like to share our concerns regarding the beach raking activities currently taking place in Collier County. We believe regulations need to be in place in order to better preserve the natural resources of the delicate beach ecosystem. Collier County currently has no requirements or regulations concerning frequency or time of raking. Due to this, beach raking occurs on a daily basis for no reason other than the County has the equipment to be able to do so. After attending meetings of the Coastal Advisory Committee, Environmental Advisory Council,and the Marco Island Beach Advisory Committee, The Conservancy believes there is consensus among these groups that regulations need to be put in place concerning beach raking practices. The Conservancy asks that the following issues be considered in any policymaking process regarding beach raking. ➢ The negative ecological impacts of constant and excessive beach raking cannot be stressed enough. The dunes system, and continued dune formation is critical in preventing erosion. When the beach is raked the natural vegetation, seeds,and root mat below the sand's surface are removed and destroyed. This destruction prevents further growth of new natural vegetation that helps to trap sand. Natural vegetation aids in dune formation and prevents beach erosion. Vegetation plays a vital role in the beach ecosystem and it is very important that the natural growth process be protected. So much time and money has been spent in beach restoration projects it seems contradictory to allow beach raking to occur on such a frequent basis knowing it enhances erosion. ➢ Beach raking should be done on an as needed basis. This includes after a storm event, during a red tide, after large events which may produce excessive amounts of litter (i.e.: Spring break, Fourth of July etc.), or for issues related to health and safety purposes that could affect the public. Leading the challenge to protect and sustain Southwest Florida's natural environment. ➢ The amount of sand and shells that are taken off the beach through the beach raking process are much greater compared to the amount of litter and trash that is picked up. All that beach raking is accomplishing is ridding the beach of sand and shells that many beach goers enjoy. The amount of litter and trash is minimal and usually does not require large heavy machines to pick it up. ➢ It would be beneficial to look at effective methods used in other counties as a means of keeping Collier County beaches clean. In Broward and Lee Counties, litter, rocks, excessive seaweed, etc. are picked up by hand. This would be a much more environmentally friendly way of cleaning the beach in an effective manner. Also, looking into clean up efforts from the community through volunteer programs, such as Keep Collier Beautiful's "Adopt-A-Shore-Program,"would aid the beach cleaning process. ➢ Sea turtle nesting needs to be looked at carefully when considering beach raking policies. Beach raking is very detrimental to sea turtle nests and to the hatchlings themselves. Beach raking machines compact the sand, making it difficult for hatchlings to emerge from the nest and reach the water. Ruts made by the machines can also trap the hatchlings, thus preventing them from reaching the water. The nesting rate of turtles on natural beaches is significantly higher than those nesting on raked beaches. A lot of time and hard work goes into protecting sea turtles; again, it seems contradictory to go against that effort by excessive, unregulated beach raking. ➢ A definition of necessity needs to be established stating specific and definite requirements for when beach raking should occur. For example, Sarasota County's Beach Cleaning Policy states that raking should occur: "When accumulations of dead and dying sealife or other debris remains concentrated on the wrackline of the beach for a minimum of two tidal changes following a storm or outbreak of red tide. Accumulations must be of estimated volume as it should fill one 5 yard truck per two mile continuous section of beach that is accessible to motorized beach cleaning equipment." Sarasota County's Beach Cleaning Policy also defines the area to be cleaned as the wrackline or highest point at which debris is deposited at high tide. No clean up activity will take place on the wet sand area or on private property that is landward of the wrackline. Sarasota County also utilizes policies on record-keeping pertaining to labor, materials,and equipment, and keeps a record on beach clean up costs broken down into cost per hour by equipment and labor. ➢ Public education concerning beach raking and the importance of a litter-free beach would also be an effective tool in keeping raking to a minimum. More visible trash receptacles, along with recycle bins at beach areas are likely to promote less litter being left on the beach. Signs posted near the beach entrances asking to keep our beaches clean by using the trash and recycle containers could also be helpful. A decrease in the amount of litter could mean a decrease of excessive beach raking. The Conservancy believes that following a set beach raking schedule is not aesthetically or economically beneficial, and is detrimental to the protection of our natural resources. Small amounts of litter, rocks, dead fish, and rotting seaweed could easily be picked up by hand in lieu of mechanical raking. We recognize that at certain times raking the beaches is necessary, specifically when the health and safety of the public is involved. We are not proposing that raking be stopped altogether. However, we do want to see regulations incorporating the previously listed suggestions be put in place. Such policies would help to ensure beach raking be done at a minimum, where necessity occurs,and to where the delicate beach ecosystem can be protected to its fullest extent. With the support of our 5,800 family members and over 700 volunteers, The Conservancy of Southwest Florida is celebrating its enviroth yearnment leTading Conservancy is ae o protect and sustain Southwest Florida's natural 501(c)(3)non-profit, environmental organization. The Conservancy works to ensure the continued protection and viability of the ecologically valuable and unique areas of Southwest Florida for the present and future generations. Sincerely, Kathy P os.er President and CEO cc: Environmental Advisory Council Coastal Advisory Committee Marco Island Beach Advisory Committee Barbara Burgeson Ron Hovell Nancy Richie