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Navigational Marker Minutes 05/29/2009 W May 29, 2009 MINUTES OF THE MEETING OF THE NA VIGA TIONAL MARKERS FOR, AND NA VIGA TION ON, CLAM PASS/CLAM BAY Naples, Florida, May 29,2009 LET IT BE REMEMBERED, the following individuals for Navigational Markers For, and Navigation On, Clam Pass/Clam Bay in and for the County of Collier, having conducted business herein, met in a WORKSHOP SESSION on this date at 9:00 AM, at Building "B" Human Resources Conference Room of the Collier County Government Complex, Naples, Florida with the following present: Collier County Staff Leo Ochs, Deputy County Manager Jeff Klatzkow, County Attorney Colleen Greene, Assistant County Attorney Gary McAlpin, Director, Coastal Zone Management Pelican Bay Foundation Rich Y ovanovich, Attorney Steve Feldhaus Seagate Homeowners Assoc. Ernest Wu Robert Rogers Clam Bay Advisory Group J ames Carroll, Chairman 1 Collier County Government Communication & Customer Relations Department 3301 East Tamiami Trail Naples, FL 34112 May 26, 2009 (239) 252-8848 www.colliergov.net FOR IMMEDIATE RELEASE PUBLIC MEETING TO DISCUSS NAVIGATIONAL MARKERS FOR, AND NAVIGATION ON, CLAM PASS/CLAM BAY COLLIER COUNTY, FLORIDA FRIDAY, MAY 29, 2009 9:00 a.m. to 11 :30 a.m. A public meeting will be held to Discuss Navigatiollal Markers for, alld Navigatioll 011, Clam Pass/Clam Bay on Friday, May 29th at 9:00 a.m. at 3301 Tamiami Trail E., Building B, Human Resource Conference Room, Naples. Two or more members of the Coastal Advisory Committee may be present and may participate at the meeting. The subject matter of this meeting may be a future item for discussion and action at a Coastal Advisory Committee meeting. Two or more members of the Clam Bay Advisory Committee may be present and may participate at the meeting. The subject matter of this meeting may be a future item for discussion and action at a Clam Bay Advisory Committee meeting. Two or more members of the Tourist Development Council may be present and may participate at the meeting. The subject matter of this meeting may be a future item for discussion and action at a Tourist Development Council meeting. This meeting is open to the public. If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Collier County Facilities Management Department located at 3301 E. Tamiami Trail, Naples, FL 34112, (239) 252-8380 at least two days prior to the meeting. Assisted listening devices for the hearing impaired are available in the Board of County Commissioners Office. For more information, call Gail Hambright in the Coastal Zone Management office at 252- 2966. -End- May 29, 2009 Jeff Klatzkow, County Attorney stated the meeting was initiated at the direction of the Board of County Commissioners (from an item that appeared on their agenda for a decision regarding proposed aids to navigation in Clam Pass/Clam Bay) to determine if consensus could be reached between the County, the Seagate Community and the Pelican Bay Community regarding the placement of the "aids to navigation" in Clam Pass/Clam Bay. If consensus cannot be reached, the item will return to the Board of County Commissioners (BCC) for a decision. He noted Staff has recommended a plan for the placement of the "aids to navigation" for approval by the BCC and the County Attorney supports Staffs recommendation. Rich Y ovanovich, Attorney for Pelican Bay Foundation highlighted the following: · The Foundation is concerned that Staffs recommendation to place red and green US Coast Guard approved "aids to navigation" may encourage boaters unfamiliar with the System to enter, causing safety concerns. · The Foundation is not sure the legal ramifications of utilizing these type of markers and is concerned the placement of them may lead to "navigational dredging" of the system. · The Foundation supports the placement of "informational signs" to aid in, navigation of the system, as opposed to the red and green US Coast Guard approved markers. The Foundation proposes the following: · To allow placement of the "informational signs" for navigational purposes. · Identify the existing depths in the area of the system utilized for navigation and guarantee the Seagate Community the right to the depths (controlling depths) for navigational purposes in the future. This would ensure the Seagate Community maintains its current "level of boating service" for the future. Jeff Klatzkow noted the County is "indifferent" to the type of signage/markers placed in the System as long as the permitting Agencies approve the placement ofthe markers enabling the County to "close out the permit." It was noted the US Army Corps of Engineers indicated, in writing, the permit issued requires the placement of US Coast Guard approved "aids to navigation" in the System. In addition, indicated the permit could be modified if requested. To date, no modification has been requested. Jim Carroll, Chairman, Clam Bay Advisory Committee read a statement into the record, which indicated: 2 May 29,2009 . The goals in relation to the issue are maintaining an environmentally healthy Estuary and provide continued "small boat" access to the Gulf of Mexico for the Seagate Community. . Recommends placement of the US Coast Guard approved red and green "aids to navigation" as proposed. . Recommended a statement or Resolution from the BCC and City of Naples be approved which indicates in the event of a storm or major hurricane, the channel shall be restored to the same navigability that existed before the Storm. . Establishing controlling depths is not necessary and opens the door for dredging in Clam Bay, which should not be permitted. . Dredging for the purposes of "tidal flushing" is separate from the issue of navigational dredging. . The fear of the red and green markers leading to "navigational dredging" is at this point, unfounded. . Maintaining the Estuary is in the interest of both communities and the issues should be addressed together. Steve Feldhaus, Pelican Bay Foundation requested clarification on the reasons for placing the US Coast Guard approved red and green navigation markers as opposed to "informational signs" for navigation. He noted the Foundation is willing to enter into a binding agreement as proposed by Mr. Y ovanovich. The residents of Pelican Bay are concerned with future dredging activities that may occur within the system. Ernest Wu/Robert Rogers Seagate Community noted the following: . The waterway is a navigable waterway as defined by the US Army Corps of Engineers (USACE). . For safety and navigability reasons, the "aids to navigation" should be US Coast Guard approved markers. . Expressed concern certain individuals do not believe the waterway is a navigable waterway as defined by the USACE. . The permit required the markers be placed, which protected the rights of the Seagate community. Jeff Klatzkow noted Pelican Bay Foundation's position is they have veto power over any dredging in the system and reiterated they are proposing to the residents of Seagate' s long term assurance, if dredging is required for navigation of the system to today's standards, (present level of service for boating) it will be allowed. Rich Y ovanovich asserted the signs or "markers" required in the permit were not for "aid to navigation," rather to ensure environmental protection of the System. Steve Feldhaus added the permit does not mention signs in Outer Clam Bay as now proposed. Signs cannot be placed in the System without permission from the Pelican Bay Foundation and the Foundation will not allow red and green markers. Ernest Wu requested clarification if the veto power asserted by Mr. Feldhaus is correct. 3 May 29, 2009 Jeff Klatzkow noted the Foundation's and a County's interpretation of the restrictions differs, but was not the issue for discussion at the Workshop. Discussion occurred if the residents of Pelican Bay agree the waterway is a navigable waterway. Again it was noted that was not the issue at the Workshop. Rich Y ovanovich noted the proposal to be considered is for "informational signs" as proposed by the Pelican Bay Foundation with assurance for the existing level of boating service in the System for Seagate residents. Robert Rogers requested clarification if there is an actual design plan for alternate signs. Rich Y ovanovich noted there have been proposed signs designed for the locations proposed which could be submitted to the Seagate Community for approval. Ernest Wu requested clarification on the reason for resistance by the Foundation's agreeing the waterway meets the definition of navigable water. Jeff Klatzkow noted the Pelican Bay Foundation is concerned the System could then be dredged to allow access for "large ships." Steve Feldhaus noted the proposed agreement would in writing binding the Pelican Bay Foundation. Leo Ochs, Deputy County Manager requested clarification if the Pelican Bay Foundation asserts it could restrict boater's access to the Gulf. Steve Feldhaus stated this is not the position of the Pelican Bay Foundation; rather they could prevent dredging activities to open the channel due to natural activities, which may block the channel for navigation. Robert Rogers asked if the Pelican Bay Foundation could provide a written proposal to the Seagate Community. Steve Feldhaus noted it could be provided by early next week. Discussion occurred noting the proposed placement of the "aids to navigations" were properly vetted and approved by the Clam Bay Advisory Group and the Coastal Advisory Committee through public hearings. Steve Feldhaus provided an overview of the history ofthe Clam Bay property noting it was private property until 1982 when it was deeded to the County with the restrictions required by the County to protect Clam Bay. The metes and bounds description of the property deeded to the County includes the waters in the System. Mr. Carroll requested clarification why the parties favor or oppose the red and green US Coast Guard markers and do they feel this awards them certain rights versus "informational signs." Mr. Feldhaus expressed concern that the Pelican Bay Foundation has offered Seagate the assurance for boating rights as they exist now, but the Seagate community is resisting 4 May 29, 2009 the offer. He questions if the Seagate residents feel the red and green markers will ensure certain parameters for maintaining navigational rights (rights to dredge, etc.). Discussion ensued on how other similar shallow Estuaries in the County are marked for navigation. Mr. Rogers noted some of the residents of Seagate feel the red and green "aids to navigation" approved by the US Coast Guard, ensure certain possible (unknown) rights. A determination of these rights (if any) would need to be investigated. Break - 10: lOam Reconvene - 10:25am Jim Carroll sought clarification on what the colored markers mean to the Seagate residents. Robert Rogers stated he was unsure, but felt the US Coast Guard utilizes the markers for reasons (boating safety, etc). He stated just as the Seagate resident's objections to the "informational signs" causes concerns for the Pelican Bay Community, the Pelican Bay Community's objection to the red and green markers is a cause for concern to the Seagate residents. An investigation needs to be completed with the Agency to determine the purpose of the markers. Jeff Klatzkow noted the following in conclusion: 1. The Pelican Bay Foundation will provide a proposed agreement to the Seagate Homeowners Assoc. 2. If an agreement is obtained, it will be provided to the County Attorney who will post it online for public view. 3. The agreement will be brought forward to the BCC for review under the continued agenda item. 4. If an agreement is not reached, the continued item will be placed on a Board of County Commission agenda for a decision. Leo Ochs noted the agreement needs to be received by County Staff by June 2, 2009 for placement on the June 9, 2009 BCC meeting agenda. There is no deadline for the item and it may be continued. Being no further business for the good of the County, the Workshop concluded at 10:39 A.M. 5