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EAC Minutes 01/21/2005 S January 21,2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, January 21, 2005 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 1 :00 PM in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Alfred Gal William Hughes Judith Hushon Ken Humiston Erica Lynne Irv Kraut ALSO PRESENT: William Lorenz, Environmental Services Director Barbara Burgeson, Environmental Specialist Marjorie Student, Assistant County Attorney Michael V. Sorrell (Absent) Lee Horn (Absent) 1 ENVIRONMENTAL ADVISORY COUNCIL Special Meeting AGENDA January 21, 2005 1 :00 P.M. Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Roll Call II. New Business A. Review of the efforts of the Listed Species Stakeholder Group regarding the development of a Comprehensive Listed Species Wildlife Management Program III. Council Member Comments IV. Adjournment ******************************************************************************************************** Council Members: Please notify the Environmental Services Department Administrative Assistant no later than 5:00 p.m. on January 18. 2005 if YOU cannot attend this meetina or if yOU have a conflict and will abstain from votina on a petition (403-2424). January 21, 2005 I. Meeting was called to order by Chairman Alfred Gal at 1 :00 PM. Roll call was not taken as the transcriber had not yet arrived. New member Irv Kraut introduced himself and gave a short background on himself. Student questioned if the meeting was being taped due to Sunshine Law Requirements. Barbara Burgeson - yes II. New Business a. Review of the efforts of the Listed Species Stakeholder Group regarding the development of a Comprehensive Listed Species Wildlife Management Program. Bill Lorenz gave a review of the Comprehensive Listed Species Wildlife Management Program since March 2004 and stated he would like the EAC to review the material prior to a Feb. 15,2005 workshop with the Board of Collier County Commissioners (BCC). The county established the Conservancy Management Policy 7.1.2 (3) in March 2004. Lorenz said the policy had caused some problems as how the county applies for letters of technical assistance from the state and federal wildlife agencies in its review of land development projects and significant work had been done to create a Glitch Amendment. Also in March 2004 a Stakeholder group was assigned the task of looking at the development of the comprehensive listed species wild life management program. In October 2004, the group brought consideration of the Glitch Amendment before the BCC and it was turned down with direction to staff to bring the item back before the board during the Feb. 15 workshop. Lorenz said the stakeholder group has a distribution list of 75 individuals and has been updated to include all AC members. He said the group has met nine times since March and close to a dozen times overall with an average attendance of 16-20 members. The goal of the group is to try to develop a general direction per the BCC directive stated above. He said staff's role is to put materials out and develop a consensus to bring before the BCe. Key Documents include: Regulatory Summary (Gaps Analysis) Policy Changes (Replacement to Policy 7.1.2(3) Findings & Recommendations Outline Considerations for Habitat Conservation Plan (H CP) Regulatory Summary Policy Changes 2 January 21, 2005 Findings Lorenz said the intent of the Glitch Policy and staff's understanding of the GMP is: GMP establishes "default" standards to apply to projects These default standards can be customized for site specific cases based on recommendations from wildlife agencies. The county shall rely on these recommendations when provided. Hushon - What if state and federal agencies disagree? Lorenz - It will be up to the staff to evaluation to those recommendations and choose one most consistent with the GMP. He said there was a proposal to accept the state recommendations since the county is a subdivision of the state and the Stakeholder group chose not to go that direction. Hughes - This sets a site specific precedent - won't this set us up for inconsistencies between sites? Lorenz - no because the current amendment recognizes projects on a case by case basis. We can make changes that could have different applications for different locations. Hughes - won't there be legal repercussions? Student - Each piece of land is unique and no less unique because of the type of species on it. Hughes - is there such a policy in other counties? We don't want to get into a legal Catch 22. Student - that's why this is based on data about the site. If the data is correct and its application to the site correct, there would be no argument. Lorenz continues his presentation... What is the intent of the policy? Will the county relay on the agencies recommendations - In all cases even when recommendations may result in a "take" of an individual animal? - Or only when certain other policies are satisfactory (i.e. the recommendations succeed in directing incompatible land uses away from listed species and their habitats? The Stakeholder group cam up with possible elements of Comprehensive Listed Species Management Program: Specific local standards - program and schedule Incentives programs 3 January 21,2005 More specific criteria to fix the glitch. Local Standards and Guidelines: for which species do we need more local standards or guidelines? What are problems with existing guidelines? Are there other technologies to investigate? Lorenz said the group created summary of the Gaps Analysis and took all species of concern in Collier County, looked at their listed status, what the federal and state guidelines were and worked with state and federal agency personnel to determine if the guidelines were sufficient or what problem existed with those guidelines. The group decided the county does not need to develop more guidelines as the state and federal guidelines are sufficient as the county does not have sufficient time and money to establish its own scientific process at the county level. An alternative approaches: Habitat Conservation Plan (HCP) - these are plans authorized under the Endangered Species Act that the U.S. Fish and Wildlife Service (USFWS) is beginning to administer. Under the plan, the project requires the "take" of a species, the owner must develop an HCP plan that must be approved by the agencies that issue a "take" permit and ensure that the HCP is administered. Lorenz said this works best on a regional basis. He said "take" permits will be balanced with mitigation activities within the same area to ensure overall benefit to the species. That area would be county-wide. HCP requirements: Assessment of impacts likely to result from the proposed taking of a federal listed species. Measures to monitor, minimize and mitigation for such impacts Funding to implement such measures Procedures to deal with unforeseen or extraordinary circumstances Alternative actions to the taking and the reason why the applicant did not adopt such alternatives Additional measures that the service may require as necessary or appropriate. Lorenz said an HCP must go through the public hearing process which includes public hearings on the plan, presentation of a draft to the USFWS for review and recommendations back through the public hearing process and put to national public review before it can be adopted. He said an HCP is a negotiating tool that can have a variety of things built into it. 4 January 21,2005 HCP Activities Presentation (acquisition of conservation easement or existing habitat. Enhancement or restoration of degraded or a former habitat. Creation of new habitats Establishment of buffer areas around existing habitats Modification of land use practices and restriction of access. Lorenz said a benefit of an HCP is the plan can deal with cumulative projects as opposed to individual projects on a case by case basis to ensure there is a net benefit in the species and not "just a wash." He said there are pitfalls in the HCP process but it would be an alternative as opposed to the county establishing its own standards. He estimated the cost of establishing an HCP at $75,000 to hire a consultant. How to Incorporate HCPs: develop consensus either "maybe," "go," or "no-go" If "go" - what species, establish milestones, and identify funds to develop and implement the HCP. Hushon - Some ofthese critters on the list can move around and some present much greater concerns. She said Plovers habitat is beach and another beach would have to be identified that might have its own population of listed species. Not all species are created equal and each would have to be looked at differently. Lorenz - One HCP won't cover all species in Collier County. He said the prototype HCP would be for red cockaded woodpeckers (RCWs) and Big Cypress Fox Squirrels in the North Belle Meade. He said there is a need to bring all stakeholders together to develop an HCP, especially the property owners who will be subject to the development review. HCP Implementation Outline Consideration Consider a first effort to be RCWs in the North Belle Meade HCP handbook - a good HCP requires consensus building and integration of numerous interests especially for large scale regional planning. Create a county ad hoc committee to assess feasibility between now and Sept. 2005, when budgeting would need to be addressed. Lorenz said if the project gets the "go" in February, work could begin on setting a budget, establishing a committee and providing a report to the BCC in September for the FY 2006. 5 January 21,2005 Hughes - The decision is to accept the state and federal standards or create standards of our own at taxpayer expense at the same time creating a Catch 22 of separate advisors to look at each situation individually and see something that might deviate from the federal standards? Lorenz - No, an HCP will be very specific to RCWs and fox squirrels and a couple other species that, once adopted, will become our local standard guidelines that federal and state agencies will accept as a way of handing development activities. It would be our standard through the Endangered Species Act for HCPs. Gal- Does an HCP just specify mitigation for a take? Won't the state still be able to issue a take permit? Lorenz - We would be the applicant for the take permit for Collier County review and apply the rules in the HCP. Gal- Is this proposed replacement policy what you want us to approve in the next couple months? Lorenz - It could serve as the sole policy without doing anything more with the HCP and if we get further down the road and want to do an HCP, we can amend the GMP to ensure if an HCP for RCWs in an instrument by which the projects with be reviewed. Gal- The state or other agencies could issue a take permit and the county would require certain mitigation. Lorenz - The HCP would supplement the policy, you could still have a policy without the HCP. HCP Opportunities Should provide net positive affect and contribute to the recovery of RCWs and other associated wildlife species within Collier County through a Comprehensive Conservation program that establishes appropriate restoration efforts that will compensate for take permits associated with future development activities. Lorenz - if we launch into an HCP, we definitely need to fix our current policy - it is circular and difficult for staff to administer. There are three elements to address this problem: HCP Incentives Replacement of policy 6 January 21,2005 (Name?) - The county would be the applicant? Lorenz - Yes, for the HCP. The county would be the administrator of the HCP and issue the take permits for projects it approves or agencies will issue take permits with some degree of county staff involvement and review. There could be a range of outcomes. (Name?)- Could the state agency still have oversight over the amount oftake permits? Lorenz - The HCP will require monitoring, identify phasing activity, funding for restoration and enhancement activities. There is opportunity at the regional scale to provide a better benefit to a listed species by looking at a total approach rather than case by case. It will take a lot of work. Hughes - a few months ago I suggested an authority be created to oversee remediation work for wild areas - protected zones - because the amount of money generated to do this should be itself independent. Lorenz - It remains to be seen as to how to fund it. The cost and sources of funding will have to be identified. He estimated three additional staff members would be needed or a steering committee established to review issuance of take permits. He said the AC could function in that role. As to Funding the first set of revenue streams will be program development from ad valorem taxes. As implemented, the county could capture some revenue from the review of rezones or PUDs. Hughes - These things are almost in perpetuity to maintain - there must be a balance between the cost and benefit. Lorenz - We haven't addressed the costs of restoration funding, we are talking about administrative costs. We will have to find funding sources to ensure those areas restored are adequately funded. There are a variety of way to do that. He suggested members go online to http://endangered.fws.gov/hcp/ to learn more about the process. Landscape planning versus Project permitting will allow for a take in specific circumstances but developed to ensure overall listed species benefit. Hushon - I don't think the track record is in and verified on mitigation for some of these projects. We must measure the success of new habitats; what looks good to us may not be acceptable to the species. 7 January 21, 2005 Lorenz - There is some scientific uncertainty to adequately compensate for future take permits. There is potential mitigation for RCWs that would be acceptable and fairly well determined. Lynne - From a biologist's point of view I am looking at specifics - you're talking about administrative program. Lorenz - We need both administrative and mitigating restoration activities in place to issue take permits. RCWs have some marginal habitats - they can find new habitats. Lynne - Instead of a case by case basis of relocation, we will have a better place for them to go. Lorenz - Yes. The funding scheme must be in place. Gal- Will the developer pay for mitigation? Lorenz - We will have to identify that in the HCP. We could have a payment in lieu of fee schedule to ensure habitat is restored. The Conservation Collier program has some property that could serve RCW needs - we could use those lands that way. There are also state and federal acquisition areas available. Hughes - Is it possible to make the statement that we refer to the state and federal standard with a board of review that if we see a situation, we can take a left turn in the law and open it up at that time? Incentives for habitat enhancement and protection of animals RLSA sending Credits - these provide incentives for land owners to protect habitat of listed species as they receive more development credits in areas that aren't environmentally sensitive. TDR program enhancements gives bonus credits if owners enhance or restore habitat for listed species and another credit if they convey the property to a public agency. Other State and Federal programs: Safe Harbor Agreements encourage voluntary stewardship of land by requiring the land owner to be responsible for only what was occurring on the land at the time of the permit, thus does not punish property owners for being good stewards over time. Glitch Amendment - Considerations to Policy 7.1.2(3) revisions Removes internal inconsistencies Provides some administrative processing guidelines Minimizes county staff review 8 .""~"""-_'.'._'-~'"""-' January 21, 2005 Continues technical assistance and recommendations from state and federal wildlife agencies Provides criteria to take exception to recommendations from federal and state wildlife agencies and will evaluate where mitigation will be allowed to occur. Mitigation Criteria Accept agency recommendation to take permit excluding location Accept agency recommendation from property mitigation with county staff not evaluating the type or amount of mitigation With evaluate the location of proposed mitigation against the county's own geographical criteria. Geographical criteria for mitigation location must occur in Collier County for certain species and allowed to occur outside of Collier County subject to various geographical conditions for other species. It would be presumed that the mitigation located in Collier County will be of benefit to Collier County the listed species population. To Revise Policy Mitigation criteria established Policy versus science Technical input Further refinement needed and that can't be completed by the Feb. 15 workshop with the BCe. The stakeholders group will go to the BCC with an amendment to the policy. Lorenz - The Stakeholders Group proposes to cross out all criteria under C-I as there is not enough proper scientific back up to provide a proven benefit to the population of listed species in Collier County. The wording would be replaced with "shall be determined using geographical criteria specific to the individual listed species to determine the acceptable location of the proposed mitigation - the criteria will be based on best available data concerning the biological needs of the identified species." (Name?) - I have a legal question. If an agency issues a take permit and does not provide for mitigation, the county doesn't have the authority to veto the permit - even with the county policy. Lorenz - We will have the right to say "No, we will not accept the agency recommendation." The developer will still have to get land development approval from the county - if we don't issue a final plat, they can't build, even with the take permit from another agency. 9 January 21,2005 Lynne - if the state or federal agency issues a take permit, the county can't decide that they don't want the species taken - this allows them to still take that eagle. Lorenz - We will accept a take permit as long as mitigation efforts occur within a specific range of Collier County. The consensus was we shouldn't limit the individual - we are concerned about Collier County populations of listed species - You're right, the individual would be gone. Lynne - They can relocate these species, but it doesn't mean they will stay there. Student - I suggest you not discuss specifics of the eagle at Wiggins Pass without a duly advertised hearing, as that issue due to come before you and the BCC. Just talk about eagles in Collier County in the abstract. Lorenz - We want to get criteria into the policy that we will bring before the BCC and prior to the actual public hearing and adoption process. The board will not take action at the Feb. 15 workshop. Staffwi1llikely receive direction at the workshop. We would like to create language for the transmittal draft. Humiston - I would like to note that the word "take" often connotates the animal will be destroyed. They are often relocated. Projects can often be completed without any take required. Lorenz - the crux of the issue is 1. Should we rely on wildlife agencies recommendations with the exception of location of mitigation to benefit Collier County listed species? The major issue is where. 2. Do we want to pursue the HCP process taking into account costs, resources, and opportunity resources lost? Hughes - In my opinion, we should include an overview of the maintenance after the fact and include some type of review panel for Catch 22 if a legal issue arises. Lorenz - That would be the Stakeholder group. Hushon - If mitigation is required, I think we need monitoring to ensure that is happening to safeguard the listed species population. Lorenz - We have limited data available on some species - it's more difficult to do inventories on others. Hushon - maybe it does not always need to be done by county staff. If there was a particular property with a take, the developer could do the study or provide funds for the study - I don't think there should be a clean take. 10 January 21,2005 Hughes - That reinforces what I said - a means to provide overview of maintenance and expenses now and in the future. Hushon - I am also concerned for plant species - they are generally moveable with a high degree of success. I would like to see plant included as well as animals. Lorenz - In the Replacement Policy - Consideration for additional policies under CCME Section 7.1 Item 3 on page 3 - specification for listed plants. Lynne - When the HCP is developed, plant species typical, rare and endangered should be included. Is management of exotics included in the HCP? Lorenz - Yes. Exotic removal is included and must be performed in the mitigation proposal. Gal - Does the county have to follow an agency that is stricter than what the county allows? Lorenz - With the exception of gopher tortoises. Some listed species standards are stricter than the agencys'. For example, the county requires a specific amount of vegetation preserves that are that is not required by state and federal agencies. Gal- I am confused by this wording. Is the county reserving the right to reject or modify an agency's recommendation if the federal or state is stricter or are you saying the county will apply more restrictive regulations? Student - we may have a confusing double negative in there. Hughes - Does the county have a bureau of land management? Lorenz - Some staff oversees less than 100 acres of county property in conservation status. Now Conservation Collier properties are doing that management with the exception of exotic removal. Hughes - Is the structure such that we can oversee all county properties under one umbrella? Lorenz - Our staff oversees areas of natural status only. We assist with exotics removal grants, but our critical mission is environmental protection. Hughes - There should be some agency there to oversee management - somebody should be taking a look [at compliance]. Lorenz - They have to provide a preserve management plan - we don't have a routine program looking at preserves. 11 January 21,2005 Lorenz - Let me take you through the Stakeholder current thoughts A county-wide HCP had advantages. Under B-4, Review of the current GMP and Land Development Regulations. The group wanted to look at trading off on vegetative retention requirements for listed species habitat restoration to provide more incentives to accomplish key goals. C - states obvious working through premises of the recommendations. C-I - we would continue to relay on agencies to issue take permits. The county receives benefit of listed species recommendations. We're looking at avoidance rather than just issuing take permits. Hushon - The county needs a loophole to question [takes]. Lynne - The reason this started was question over how much the county should defer to state and federal regulations. I though we wanted more county input if the county interest differ from state and federal government. I see it addressed in one little spot. Student - issues with levels of government and preempted areas. The county can fill in the holes where state and federal government leaves off. Hughes - the intent is not to give up the citizen's right to input. We need some type of review to raise flags when needed. Lorenz - the goal is to harmonize our efforts with state and federal agencies. Under E - provisions the county in event of a conflict between applicant and county staff, the county can present its plan to the EAC for recommendation. Under E - in the event of conflict, there is the opportunity to review the staff recommendation against criteria - the objection must be founded on criteria, not just the fact that the group doesn't like it. Hughes, Hushon, Lynne - some form of intervention should be included in the plan. Gal- Questioned the county's legal authority to do so. Hushon - Does the county have the chance to see the developer's proposal to the state when requesting a take? Burgeson - We rarely get copied on comments issued from agencies when creating biological opinions. That is usually between the developer's environmental consultant and the agency. 12 January 21,2005 Gal- The county still has the ability to deny them the right to build. Lorenz - the heart of the matter is still looking at the benefit to the overall population not the individual. III. Public Comment Nicole Ryan of the Conservancy of Southwest Florida - Voiced concern that the county has moved from not allowing a take, to being faced with allowing a take, to almost facilitating a take. That's what an HCP is. Where are the teeth in the program? Advised members to go online to defenders.org to learn more about HCPs before making a decision. IV. Council member comments: Hughes - motion to accept state and federal standards with the provision to provide a review panel as possible and at the time of the EAC and other boards, have the potential to stop them to ensure citizen or environmental groups have the right to raise a question in the process. Lynne - second. Gal- I vote against that - I don't think the language of the replacement policy is clear enough to state that the county is protecting wildlife in cases where it wants to and state and federal agencies are less protective - I am confused by this policy. Motion failed 6-1 Gal- motion to deny language in the replacement policy as it does not clearly spell out rights and obligations of the county and the EAC. Lynne - second Hushon - We need to clarify the policy to retain for Collier County the ability to raise concerns about takes. Student - including incidental takes? Hushon - yes, but mainly takes to retain the right to question the logics of issuing take permits. Burgeson - I'm not sure we have the right to reconsideration and there would not be enough time to bring the proposal before the EAC. Lorenz - We currently accept state and federal agencies - we don't have recommendations at all. A step down from that is to determine under what circumstances are we not going to accept take permit. The Stakeholder group position is to say as long as the mitigation occurs in and benefits Collier County. A couple steps down from that is to say we won't accept the take permit at all- we will accept recommendations from 13 January 21,2005 agencies for everything with the exception of take permits. Beyond that, I'm not sure what the options are. Gal - I withdraw my motion. Lynne - withdraw second Hushon - Motion to adopt the proposed replacement policy with the following provisions 1. the policy be clarified to retain for Collier County the ability to raise concerns regarding takes by the state or federal governments. 2. Have criteria based on other than geographic criteria in the current policy and introduce a structure to determine the success of the mitigation with some sort of structure, presumably to be paid for by fees associated with these permits. Lynne - Second Approved unanimously Lynne - Motion to recommend that staff continue to look into the HCP with the caveats presented by the Conservancy that this not just be a program that needs to be done cautiously and not just a program to expedite takes. Hughes - Second Approved unanimously Gal- Questioned the policy wording, "The county reserves the right to reject or modify any agency recommendation if it will result in no reasonable economic utilization of the property" If it renders the property economically unusable, the county can then reject that agency's recommendation and allow the development? Lorenz - We can't be in a position to approve a plan that results in no economic utilization of the property. Gal- But the state or federal agency has recommended it? Burgeson - It may be that we are obligated to reasonable use of their property but not necessarily as requested through the application. The intent of the language is to prohibit incidences where we are taking away the legal use of that property. We're not saying we have to approve the full maximum extent of what is requested. Gal - But if the state or federal agency is making the recommendation, it is not a taking by the county; it is a taking by state or federal agency. No.3 wording should be deleted from this policy. Lorenz - This is technical assistance. We could make a recommendation not necessarily a permit; it could be a letter stating we think you should do this... The agency is not compelled to issue a permit. 14 January 21,2005 Student - noted a concern that the county would be at risk for possible takings claim. Roll call held with Hushon, Hughes, Gal, Lynne, Humiston and Kraut responding. Sorrell and (Horn?) absent. Adjournment ********* There being no further business for the good of the County of Collier, the meting was adjourned. ENVIRONMENTAL ADVISORY COUNCIL Alfred Gal, Chairman 15