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CBSC Agenda 03/18/2010 R CLAM BAY SUBCOMMITTEE MEETING AGENDA MARCH 18, 2010 MEETING AGENDA CLAM BAY SUBCOMMITTEE THURSDAY, MARCH 18, 2010 - 1:00 P.M. TILL 5:00 P.M. NORTH COLLIER REGIONAL PARK, 1500 LIVINGSTON ROAD, ADMINISTRATION BUILDING, CONFERENCE ROOM A, NAPLES I. Call to Order II. Pledge of Allegiance Ill. Roll Call IV. Changes and Approval of Agenda V. Public Comments VI. Approval of Minutes 1. February 1,2010 Minutes VII. Staff Reports VIII. New Business I. Clam Bay Biological Study - Discussion 2. Peer Review Scope of Work 3. Modeling Program Scope of Work 4. Wanless Report - Discussion 5. BVO Process - Update 6. RAI Comments Clam Pass Permit Application - Discussion 7. J.G. McAlpin March 10,2008 Memo to Colleen Green 8. Clam Pass Park Conceptual Plan IX. Old Business X. Announcements XI. Committee Member Discussion XII. Next Meeting Date/Location April 15, 2010; 2800 N. Horseshoe Drive, Community Development, Conference Room 609 & 610, Naples XIII. Adjournment * Public speakers must do the following for any items presented to the Board: Each document must display the presenter's name and title of document. Provide a total of 7 copies of each handout, to be distributed as follows: 3 Board Members; 1 Minute Taker; I County Attorney; 2 CZM Staff members. Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 1 of 7 MINUTES OF THE MEETING OF THE COLLIER COUNTY COASTAL ADVISORY COMMITTEE - CLAM BAY SUBCOMMITTEE Naples, Florida, February 1,2010 LET IT BE REMEMBERED that the Coastal Advisory Committee - Clam Bay Subcommittee in and for the County of Collier, having conducted business herein, met on this date at 9:00 A.M. at the North Collier Regional Park in the Exhibit Hall, Naples, Florida, with the following members present: CHAIRMAN: Anthony Pires Jim Burke (Vacancy) ALSO PRESENT: Gary McAlpin, Director, Coastal Zone Management Gail Hambright, Tourist Tax Collector Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 2of7 I. Call to Order Chairman Pires called the meeting to order at 9:07 am. II. Pledge of Allegiance The Pledge of Allegiance was recited. III. Roll Call Roll call was taken and a quorum was established. IV. Changes and Approval of Agenda The Agenda was approved subject to the following changes: . Addition of item VIlLA - How the Subcommittee will Operate . Deletion of item VIlL3 - Scope of Peer Review - Discussion . Scope of Work for Biological Assessment to become item VIlL3 . Deletion of Item VIlL5 - Scope of Work - Circulation Modeling . Addition of Item VIllA - Wanless Report - Discussion. V. Public Comments David Roellig, member of the previous Clam Bay Subcommittee noted this was the third Group assembled to address the issues associated with the Management of the Clam Bay System and expressed concern the Report prepared by PBS&J for the County is unsatisfactory and should not be used as a foundation for the Subcommittee to move forward in completing its tasks. Chairman Pires noted there is a 3-minute time limit for public speaker comments, however he will provide flexibility in the rule to ensure as much information as possible is gathered by the Subcommittee. Kathy Worley, Conservancy of Southwest Florida, agreed with Mr. Roellig and expressed concern on the concept of speakers registering to speak on an item with a 3 limit time constraint. She recommended technical persons be allowed to sit at the "round table" and be allowed to ask questions of the consultants, etc. during their presentations. John Domenie requested the Subcommittee clarify the areas of their responsibilities including the parameters of the Studies. He outlined the differences between Moorings Bay and Clam Bay. Moorings Bay is man made, dredged for navigation, has artificial concrete walls and an artificial inlet (Doctors Pass). Clam Bay incorporates a NRP A (Natural Resource Protection Area) designated for environmental purposes, has a natural shoreline and shallow mangrove system. He requested the County leave the management of the Clam Bay System with the Pelican Bay Services Division who has maintained it for the past 10 years. Chairman Pires requested persons with comments or questions on written reports distributed for the meeting, provide them, in writing, to Staff for distribution 2 days in Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 3 of 7 advance of the meeting. This will assist Staff, Subcommittee members and Consultants in providing comments or answers at Subcommittee meetings. VI. Approval of Minutes None VII. Staff Reports None VIII. New Business A. How the Subcommittee will Operate Gary McAlpin, Director, Coastal Zone Management noted: . The Subcommittee will operate under the rules of the Coastal Advisory Committee (CAe). . There will be a 3 minute time limit for public speakers with additional time granted at the discretion of the Chairman. . Staff intends to schedule the meetings on a regular basis for the 3rd Thursday of each month and be held at the CDES (Community Development and Environmental Services) building (if possible). . The Subcommittee is comprised of 3 members with a current vacancy. 1. Boundary of Clam Bay - Discussion Gary McAlpin provided the following documents for the record: . "Publication Series NR-SP-94-01, Clam Bay Natural Resource Protection Area (NRPA), August 1994" prepared for Collier County Environmental Services Division. He reviewed (page iv) of the document which describes the boundaries of the NRP A as "located next to the Gulf of Mexico, north by Vanderbilt Beach Road, east to the remaining natural areas next to the berm and Pelican Bay Development and South to Seagate Drive. " . "Clam Bay Natural Resource Protection Area Annual Report October 1997." The document describes the NRP A area as the area from Vanderbilt Beach Road, south to Seagate Drive, on the west by the Gulf of Mexico and on the east by the berm of the Pelican Bay Development. . "Collier County Ordinance 2008-48" which created the previous Clam Bay Advisory Group. The Ordinance states "the Clam Bay Estuary System is a designated Natural Resources Protection Area (NRPA)." Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 4of7 Speakers Bob Naegele, Pelican Bay noted the original Tomasko Report defined the Estuary from Wiggins Pass to sth Avenue, which identified the watershed as opposed to the Estuary. This definition is too broad to define the "Clam Bay Estuary System (CBES)." He recommended defining the CBES as the "NRPA." He expressed concern Pelican Bay is not represented on the Coastal Advisory Committee or this Subcommittee. Mr. Burke noted the compilation of the CAC is prescribed in the Ordinance governing the CAe. Mary Johnson, Pelican Bay Resident supports the definition provided in the record documents (the NRPA) for the CBES. Sarah Wu, Seagate Resident recognized Pelican Bay's concern for protecting the boundaries of the CBES as the NRP A. She expressed concern areas outside of the NRP A affect the activities within the system and requested the Subcommittee continue to study these areas outside the NRP A and how they affect the overall quality of the CBES. Gary McAlpin provided page I of the "Collier County Clam Bay Advisory Committee" Mission, Functions, Powers, Duties & Work Plan", (Coastal Advisory Committee meeting document, March 12,2009, Item VIl-8 New Business 7 of 10). Under Recommended Boundaries, it states "The Clam Bay Advisory Committee (hereafter the Committee'') has defined the boundaries of the Clam Bay Estuary (hereafter the "Estuary'') as generally, that wetland area south of Vanderbilt Beach Road and north of the Seagate Community. The Subcommittee recommended the following changes to the above wording: . Deletion of the word "generally" . Revise the term Seagate Community to "Seagate Drive." Mr. Burke moved to define limits of the Clam Bay Estuary System from Vanderbilt Beach Drive south to Seagate Drive, the Gulf of Mexico on the West, on the East by the berm adjacent to the west side of Pelican Bay Development. Second by Chairman Pires. Carried unanimously 2-0. Chairman Pires noted the Subcommittee should consider defining the limits of the Clam Bay Estuary's Systems watershed at afuture meeting. 2. Mission of the Clam Bay Subcommittee - Discussion Gary McAlpin provided page I of the document. "Collier County "Clam Bay Advisory Committee" Mission, Functions, Powers, Duties & Work Plan", (Coastal Advisory Committee meeting document, March 12,2009, Item VIl-8 New Business 7 of 10). Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 5of7 Under Committee Mission it states "The Committees mission is to advise, assist and make joint recommendations to the Board of County Commissioners ("BCC'') and the Coastal Advisory Committee ("CAe'') with all major issues affecting the management, use, direction, health and long term viability of the Clam Bay Estuary in accordance with the protection afforded Clam Pass and Clam Bay's NRP A and conservation designations as delineated in the Future Land Use Element of the Collier County Growth Plan and Coastal Zone Management Plan. In doing so, the Committee will formulate recommendations for review and recommend possible funding sources that may be required by such recommendations. " Speakers Marcia Cravens, Mangrove Action Group noted the original approval of the NRP A by the BCC was defined as the Pelican Bay Conservation Area. She expressed concern a legal order issued in 1999 which required "meaningful protection" of wildlife in the NRP A is being violated given the activities proposed in the CBES by the County. She submitted meeting minutes and related backup information for the February 28, 1995 and May 18, 1999 BCC meetings for consideration by the Subcommittee Gary McAlpin stated any concerns identified in the Court Order referenced in Ms. Cravens's statement may be included in the biological assessment of the CBES. Mary Johnson, Pelican Bay Resident expressed concern the focus of the item has shifted from development of a long-term Management Plan for the CBES to the issues associated with Outer Clam Bay. She would like a better understanding on the sources of pollution from the Seagate Community, how it can be better controlled, and why is only "flushing" considered as a solution, etc. Chairman Pires noted the Mission Statement outlined above is consistent with the issues Ms. Johnson raised as it incorporates "all major issues affecting the management use, direction, health and long term viability of the Clam Bay Estuary." Linda Roth, Pelican Bay Resident expressed the BCC directive references the term the "entire Clam Bay Estuary System," and requested clarification if the CBES boundary incorporates the NRP A or goes all the way to Doctors Pass. Chairman Pires noted the boundaries were defined under item VIII. 1 Rick Dykman, Seagate Resident clarified the CBES being described as "a natural system" as inaccurate. The area of the Ritz Carlton and Bay Colony was altered during periods of construction. He expressed concern the public's perception on the issues is the Seagate Community vs. the Pelican Bay Community. Seagate is concerned with the water quality and if there any issues Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 6 of 7 within the Seagate development negatively affecting the CBES, the community would like to know and address it. His understanding regarding jurisdictions is the area is owned by the State of Florida and managed by Collier County. Mr. Burke moved to approve the Subcommittee Mission Statement as provided in the Coastal Advisory Committee meeting document, March 12, 2009, Item VII-8 New Business 7 of 1 0 (referenced above). Second by Chairman Pires. Carried unanimously 2-0. 3. Scope of Work for Biological Assessment - Discussion Gary McAlpin provided the document "Additional Work Request WO# Contract #07-4153 Upper, Inner and Lower Clam Bay Biological Study" prepared by Jeff Tabar ofPBS&J dated January 22,2010. He provided an overview of the proposal noting some data collection may be completed by other organizations or firms, but analyzed by PBS&J. Speakers Marcia Cravens, Mangrove Action Group noted there are numerous studies and surveys that have already been completed which indicate there are significant wildlife species in the area. She submitted a document "Clam Bay/Clam Pass Estuary Preserve: A Natural Resources Protection Area (NRP A) for Wildlife" which outlined a list of species identified in the NRP A. She stated the scope of work should follow the model consistent with the Everglade Restoration Plans and the South West Florida Feasibility studies. Also, be subject to a competitive bidding process. Kathy Worley, Conservancy of Southwest Florida recommended a decision on the item be postponed for a vote, as many individuals just received the document. The Conservancy will complete an 11 year Report on the System in late summer which includes significant data throughout the entire system. She can provide the Subcommittee a summary of the procedures and methods utilized in the Report. Linda Roth, Pelican Bay Resident agrees with Ms. Worley on postponing any decision on the item. She noted there are recommendations in previous Studies which should be analyzed before proceeding. Mary Johnson, Pelican Bay Resident agreed with postponing the item, so all involved have a chance to review the documents. Gary McAlpin noted the item was placed on the Agenda for informational purposes only. A cost estimate for the work has not been developed. Chairman Pires recommended the item be placed on the next Agenda and include a discussion on whether or not the Subcommittee will recommend utilizing the CCNA (Competitive Consultants Negotiations Act) process for awarding the scope of work. 4. Wanless Report Continued Clam Bay Subcommittee March 18, 2010 VI-1 Approval of Minutes 7of7 Chairman Pires re-iterated his request any persons submitting documents relating to Subcommittee meetings provide them to Staff at least 2 days in advance of the meeting. Speaker Mary Johnson provided a document "Comments to the Clam Bay Subcommittee Meeting of February 1,2010" for consideration by the Subcommittee. IX. Old Business None X. Announcements None XI. Committee Member Discussion None XII. Next Meeting Date/Location The next meeting will be held on March 18, 2010 at 1:00 PM Location to be announced. . There being no further business for the good of the County, the meeting was adjourned by order of the chair at 10:34 A.M. Collier County Coastal Advisory Committee - Clam Bay Subcommittee Anthony Pires, Chairman These minutes approved by the Board/Committee on as presented or as amended Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 1 of7 January 19, 2010 Upper, Inner and Lower Clam Bay Biological Study In 2009, PBS&J completed the study entitled "Clam Bay System Data Collection and Analysis". The purpose of this study was to an assess the status and trends (if any) in water quality and natural resources in Clam Bay and recommendations on the design of future monitoring efforts, a review of existing circulation models for Clam Bay, and the collection and analysis of hydrodynamic data from Clam Bay. This scope of work is to expound upon that study and look more closely at the bi ological communities within Upper, Inner and Lower Clam Bay. SCOPE OF WORK Task 1.0 Review of Existing Biological Data A nu mber 0 f different publ ic an d pr ivate or ganizations have conducted biological surveys within Clam Bay. A complete dat a search w ill be conducted tog ather t he existing information a nd us ed when pos sible to further evaluate the dat a collected in Tasks 2.0 through 6.0. Data Sources include but are not limited to: . The Nature Conservancy . The South Florida Water Management District . The Audubon Society . The Florida Fish and Wildlife Conservation Commission . The US Fish and Wildlife Agency . The City of Naples . Collier County . The Department of Environmental Protection . Turrell, Hall & Associates GIS databases as well as report style information will be complied and presented in a brief summary in the Biological Assessment report (Task 7.0). Task 2.0 Mangrove Health Assessment Previous studies conducted by the Conservancy of Southwest Florida and Turrell, Hall & Associates, Inc had focused on monitoring the mangrove die-off area in the northwest corner of the bay. The Turrell, Hall and Associates monitoring was conducted to meet the monitoring requirements specified with restoration permits issued by the FDEP and USACE. This study effort is independent of the previous work but will utilize some of the same monitoring location points to allow for accurate comparison with previous data. At otal of sixteen ( 16) sampling poi nts w ill be es tablished. Four (4) samples will be collected within the northwest area die-off area. The remaining twelve samples will be dispersed throughout upper, middle and lower bay. At each sampling point a 10m x 10m quadrant will be es tablished. Within each quadrant the total number of dead and alive Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 20f7 mangroves w ill be counted and species identified. A di ameter a t breast hei ght (DBH) will be recorded for live trees over 2.5 cm. The total number of seedlings will be counted and species identified, when possible. Total percent coverage will be utilized in areas where the number of seedlings is too great to distinguish and count individual shoots. A location GPS point will be taken at the center of each quadrant. A photo will also be taken at each of these 16 points. This scope is for one complete mangrove survey to including the work above at each of the 16 quadrants. Data analysis an d summation will be conducted by P BS&J, the master consultant on this project. Task 3.0 Wading Bird Survey In accordance with FWC requirements the wading bird surveys will be conducted by a surveyor that is abl e to pr operly identify an d di stinguish bi rd species, h as a working knowledge of breeding plumage and juvenile plumage variation, range of habitat usage including usage of nonnative habitat, has recently observed the species to be surveyed in variable habitat conditions, and has knowledge in the ecology specific to Florida. All ac cessible suitable habi tats w ill be surveyed three times between April and June, with a minimum of 2 to 3 weeks in between surveys, when possible. Surveys will occur during crepuscular times an d will oc cur within 1 -3 hours after sunrise and 1 -3 hour s before sunset. The total number of birds (including but not limited to colonial, wading birds, passerine/songbirds and shorebirds) species will be recorded during the survey. Any nesting sites will be located with a G PS and the approximate number and species will be recorded. Data analysis and summation will be conducted by PBS&J, the master consultant on this project. Task 4.0 Fish Survey In order to characterize the fish community in Clam Bay, the composition and relative abundances of fish species will be estimated during two discrete sampling events (three days each). Collection of samples will occur during early summer (May/June) and again during early fall (September/October) an d is pi anned to coincide with annual pe aks in the species richness and abundance of fish. During each event, a total of 30 random seine samples will be collected; 10 within the upper bay, 10 within the lower bay and 10 within the tidal creek adjoining the embayments. Samples will be stratified evenly within each bay, bet ween shoreline and 0 pen water ar eas an d within the c reek an d pas s, between vegetated a nd unv egetated shorelines (e.g., sand bar s), tom aximize t he number of fish species collected and to ensure a representative characterization of the fish community. All fish w ill be counted and identified tot he lowest pos sible taxonomic uni t. Data on species richness, species composition, frequency 0 f oc currence, a nd relative Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 30f7 abundance w ill be us ed t 0 characterize t he fish community. Fish sampling a nd identification will be subcontracted out to the Fisheries Independent Monitoring Group of the Florida and Wildlife Research Institute (FWRI) located in St. Petersburg. Coordination with FWRI, data analysis and summation will be conducted by PBS&J, the master consultant on this project. Task 5.0 Benthic Collection and Analysis A total of twelve (12) sediment grab samples will be collected within upper, inner and lower Clam Bay. The samples will be taken randomly within each specific bottom type. Known bottom habitat includes but is not limited to mud bottom, mangrove shoreline, sand bottom and submerged aquatic vegetation. The samples will be collected using a Young-modified Van Veen grab sampler that samples a surface area of approximately 0.04 square meters. The twelve (12) samples at each station will be c omposited for infaunal analysis by sub-sampling 75% of each 0.04 m2 grab sample. The remaining 25% of each of the three samples will be composited and analyzed for sediment grain size and percent organic matter. Each c omposited i nfaunal sediment sample w ill be sieved (with a U.S. Standard 30 mesh sieve), rinsed into a sample jar, a nd fixed with a solution of borax-buffered 10% solution of Formalin and ambient water, and Rose Bengal stain. The c omposited an d sieved i nfaunal samples w ill be sorted a nd anal yzed by Terra Environmental Services I nc under t he direction of Bruce Barber, Ph.D. Benthic macroinvertebrates in each composite sample will be enu merated and identified to the lowest pr actical identification level (LPIL). The index publ ished i n t he Engle an d Summers paper, 1999, Refinement, Validation, and Application of a Benthic Condition Index for Northern Gulf of Mexico Estuaries, Estuaries, Vol. 22, NO.3A, p.624-635 will be utilized to describe and compare the habitats within the bay. This level of sampling and analysis provides for a qualitative description of Clam Bay. The total amount of samples that would be necessary to allow for the 90% probability to conclusively det ermine a di fference between ha bitat types would require sampling between 20 samples ( comparing S AV to sand us ing richness) t 0 11, 960 samples (comparing sand t 0 mangrove us ing M argalef's Diversity Index). Therefore i tis financially infeasible and t he use of the existing bent hic index ( Engle and Summers, 1999) is recommended. Data analysis an d summation w ill be conducted by P BS&J, t he master consultant on this project. Task 6.0 Submerged Resource Survey Transects w ill be es tablished within upper, inner and lower Clam Bay to ac curately located and describe the submerged resources within the entire embayment. Transects Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 40f7 have been established previously by Turrell, Hall and Associates in conjunction with the FDEP. I tis recommended that these transects b e us ed for this study t 0 allow comparisons to be made with previous years of data. Additional transects will be set. These transects should utilized when pos sible the points sampled by PBS&J in 2009. All transect will be swam to provide an overall percent cover by species. In addition a 1 m x 1 m quadrat w ill be pi aced at locations along the transects where s eagrass ar e observed. Within each quadrat the total percent cover by each species will be recorded using t he B raun-Blanquet classification for consistency. 0 bservational evidence 0 f epiphytes or visible infauna use will also be noted. Previous studies have observed both shoal grass (Halodule wrightii) and paddle grass (Halophila decipiens) within the C lam Bay system. D ue tot he ephemeral nature of paddle grass t he surveys will be conducted twice dur ing t he recommended survey months (May-October). One survey should be conducted at the beginning and the end of the season. Data anal ysis and summation w ill be conducted by P BS&J, t he master consultant on this project. Task 7.0 Biological Assessment Report and Public Presentation PBS&J w ill develop t he bi ological as sessment report, data anal ysis and pu blic presentation. A level 0 f coordination an d cooperation is required an d I'd like you to indicate how many hours and the cost that would be required to accomplish this. SCHEDULE The above scope is based on an estimated twelve (12) month schedule of participation. BUDGET Time and Material, not to exceed the amount listed. See attached excel spreadsheet Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 50f7 From: kathy worley [mailto:kathyw@conservancy.org] Sent: Tuesday, March 16, 2010 3:21 PM To: 'arcmi@comcast.net'; McAlpinGary; 'apires@wpl-Iegal.com'; 'therightperson@msn.com' Subject: RE: Thur CAC CB Subcomittee Mting Subject: Biological Monitoring Dear CAC Clam Bay Subcommittee Members and Mr. McAlpin: The following comments are in response to the "Upper, Inner and Lower Bay Biological Study" Scope of Work submitted by PBS&J to County Staff (the version that is dated January 19th 2010). First of alii am very happy to see that their is movement on initiating a Biological Assessment of Clam Bay. The following questions are only meant to clarify certain aspects of the tasks within the proposal or comments on the tasks themselves. Task 1 : Review of Existing Biological Data: Thank you for getting this started. Task 2: Mangrove Health Assessment: Comment: Although as a scientist the more plots the merrier - the current mangrove monitoring programs by Turrell, Hall and Associates, the Conservancy of Southwest Florida and Robin Lewis are sufficient to assess the health of the mangroves. While it is true that Robin Lewis's plots were primarily in the northwest dieoff area, Turrell, Hall and Associates and the Conservancy have plots scattered throughout the whole Clam Bay system and are not limited to the northwest corner. The Conservancy has 12 plots that are scattered throughout the Clam Bay system and are monitored on an annual basis recording information similar to the methods outlined in PBS&J's scope of work with additional data collected each year on individual propagules as well as the trees. A report will be coming out in the late summer analysing 10 years worth of data. As a scientist adding more plots as suggested by PBS&J is fine as long as the results of monitoring by other organizations are included in the final report. But remember that annual monitoring of the new plots will be necessary to derive any meaningful information long-term as forests change slowly over time and recruitment and mortality rates vary from year to year dependant upon environmental conditions, presence or absence of natural occurrances such as lightning, hurricanes or tornado's. This year the freeze could of impacted the trees, etc.... Task 3: Wading Bird Survey Questions to clarify methodology: Once all the "accessible suitable habitats" are identified what method will be used to survey the birds? Transect? If so how many transects and what is the lenght?? Targeted areas or random or striated random design? Or the Plot method? If so how many plots? Standard 10 minute survey per plot? Targeted areas or random or striated random design? Or other method????? Comment: Good start to get avian surveys going. Just remember when reporting the data to qualify the limitations (i.e. no winter migrants are being assessed) but is capturing the breeding period which is generally for short-legged wading birds (Jan-May) and long-legged wading birds (Jan - July). Task 4: Fish Survey Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 60f7 Questions: Out of curiosity who is doing the work from FMRI? Phil Stevens? Comment: Good group of scientists. Question: What prompted the times of collection? Seems that the early wet season and peak to late wet season are being targeted - reasoning behind this choice? The scope says that these times coincide with annual peaks in species richness and abundance - Please provide the source for this information. Question: What seine size and lenght will be used? (Different seines target different sizes of fish) Comment: Will have to state in the report that the targeted fish are from open water environments and not the undersides of prop roots as seine nets are problematic in areas with prop roots as they are continually getting hung up. Question: What tidal considerations if any are being targeted - low outgoing??? Comment: Given the limited funding this is a good start and all study's have their limitations it is just important to recognize those limitations and state them clearly in the report. Fish abundance and diversity in an environment varies temporally (day or night feeders, etc.), spatially (open water or under a prop root, etc.), seasonally, and with age class in an environment like Clam Bay, therefore it is important to state up front that this study is to get the ball rolling and the results will be constrained by the study design as all research projects have limitations - the key is to recognize the limitations at the start of the project. Just like other monitoring projects one time is a good start but we really need to do repeatative monitoring over time. Using study to predict or use for long-term management is inherantly dangerous, (but we need to start somewhere). I know that it is impossible financially at this time to do a comprehensive study that takes years but the management plan should be flexible or adaptable so that when other information comes available the plan itself can be adapted to changing conditions. I hope this goes for all aspects of the management plan. Task 5: Benthic Collection and Analysis Questions: I am a little confused in regards to the total number of samples that will be collected. Scope says a total of 12 grabs with in upper, inner and lower clam bay but later on in the scope it says 12 samples at each station so how many stations? Will there be 12 samples in each of the three areas for a total of 36 samples? Or 4 samples in each of the three areas for a total of 12? Comment: Could save the County some money by just using the Benthic Survey that the Conservancy will be starting this summer. This study will be headed up by Dr. Jeffrey Schmid who headed up similar benthic studies for the City of Naples (Naples Bay) and for the federal government (NOAA - GOM program) in Estero Bay. A grid sampling design will be employed (n>=500). Would be happy to provide our scope of work that we used to bid for this project for comments upon request. Thank you for your consideration Sincerely Kathy Worley Co-Director of Environmental Science Conservancy of Southwest Florida Clam Bay Subcommittee March 18, 2010 VIII-1 New Business 70f7 Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Clam Bay Subcommittee March 18, 2010 VIII-2 New Business 1 of2 Peer Review Scope of Work March 15, 2010 Backaround: During their regular December 15, 2009 meeting, the Board of County Commissioners approved an independent peer review of the work required to complete the development of a comprehensive management plan for the Clam Bay Estuary. Specifically, that an independent pe er review, of t he Clam B ay Water Circulation/Flushing Modeling Program an d t he C lam Bay System Data Collection Analysis Report recently completed by P BS&J be performed by a recognized ex pert. This ex pert, jointly s elected by Pelican B ay Services Division and Coastal Zone Management, will be from an academic/university background and not directly involved with any consulting firm. The review of the Clam B ay Data Collection a nd Analysis Report is proposed to be conducted early in the development of the flushing/circulation model. It is also recommended that the cost of this effort and any future phased peer review be split bet ween t he Pelican B ay Services Division and Coastal Zone Management. Consideration: Development 0 fa management pi an for Clam B ay will involve a number of critical sciences not usually resident in one individual expert. Among others, these di sciplines would involve water quality, coastal eng ineering, marine bi ology, modeling, geology and coastal management to name just a few. I n addition, they must be knowledgeable with state rules and regulations to be successful. This must include involvement in issues related to FDEP's existing state water quality standards, the use of t he I mpaired Waters Rule ( IWR), an d experience with the Total Maximum Daily Loads (TMDL) program. These three issues - state water quality standards, the IWR, and the TMDL program - are abs olutely critical. Familiarity with all three and the implications 0 f such ar e the most important issue here. If t hey don't k now about those three pr ograms - then they're probably not right for the peer review process. Also critical to the success of this review would be a t rack record in managing estuaries of a similar nature in Southwest Florida and no prior history of involvement with our community. Consultants have be en ruled out due to the competitive nat ure 0 f t he consulting business. Stand alone academics have been ruled out due to the vast array of technical expertise required and the need for a practical track record of managing estuaries in SW Florida. There are three national estuary programs in SW Florida that have the technical and practical ex pertise t 0 evaluate 0 ur pr ogram, guide us an d make recommendations. These programs are: Clam Bay Subcommittee March 18, 2010 VIII-2 New Business 2 of 2 . Charlotte Harbor National Estuary Program run by Judy Ott . Sarasota Bay National Estuary Program run by Dr. Jay Leverone . Tampa Bay Estuary Program Run by Ed Sherwood Each 0 f these pr ograms is separate and di stinct f rom each ot her. They ar e E PA sponsored and have developed t he science necessary t 0 develop their es tuary programs. They are not associated with Collier County and are usually funded by a combination 0 f U SEPA, F DEP, local Government an d t he WMD. Each of these programs has also developed bi ological, water and overall es tuary heal th di agnostic studies in the management of their estuary. The added benefit of working with one of these programs is that only expenses, no fees or certainly reduced fees might be possible. These programs were recommended to me by FDEP among others. In researching this topic two other individuals were highly recommended. They are: . Dr. Ernie Estevez a Estuarine Ecologists with Mott Marine and . Dr. Lor en C oen, t he Executive Director of S anibel-Captiva Conservation Foundation Both this individuals do not run estuaries but have extensive experience in conservation issues within the SW Florida environment. Recommendation: Staff i s recommending t hat any of the three National Estuarine Program be us ed as t he pe er review f or t he C lam Bay management pi an. The administrators with their staff as support can perform expert peer review and guidance for our program. The Sarasota Bay program most closely resembles our own situation and it is recommended that this program be contacted first. Peer review expertise that is missing from these programs can be supplemented with experts from other national programs or academia. Clam Bay Subcommittee March 18, 2010 VIII-3 New Business 1 of 7 CLAM BAY ESTUARY MODELING STUDY - PHASE 1: NUMERICAL MODELING OF HYDRODYNAMICS, SEDIMENT TRANSPORT AND FLUSHING ANALYSIS USING DELFT 3D COLLIER COUNTY, FLORIDA INTRODUCTION This proposal was developed based on the approved PBS&J scope of work for Clam Bay dated April 1, 2009 (attached). The work described herein will be performed by Coastal Planning & Engineering, Inc. (CPE) to conduct a numerical modeling study of circulation, residence time (flushing), sediment transport and morphology of the Clam Bay Estuarine System as described by Tasks 4a and 4b of the PBS&J SOW and refined below. The numerical modeling study will utilize a process based numerical model, Delft3D, a numerical modeling system developed by Deltares (Delft, Netherlands). The team of numerical modelers at CPE is highly skilled and experienced with the Delft3D numerical modeling system, having conducted dozens of studies with this numerical system since 2004. This scope represents Phase 1 of the overall study to evaluate the physical processes of the existing Clam Bay Estuary complex and conceptual modifications to the system. The following tasks are included in Phase 1: 1. Analysis of Existing Datasets and Monitoring Programs 2. Development and Calibration of a Circulation Model 3. Alternatives Development 4. Modeling of Residence Time (Flushing) 5. Modeling of Transport and Settling of Fine Sediments within Clam Bay Estuary 6. Sediment Transport and Morphology Modeling 7. Analysis of Results and Final Report of Preparation It is understood that PBS&J is the lead consultant on this project and will be responsible for project management with the County. CPE will attend meetings (2 committee and 1 CAC meeting) that require technical modeling discussions and will report to PBS&J as needed for project status and progress updates. TASK DESCRIPTION 1. Analysis of Existing Datasets and Monitoring Programs This task consists in the review of existing datasets including: bathymetric and topographic data, current and tide measurements, water quality measurements etc. The data collected with the PBS&J October 2009 report will be the primary information source. The data will be reviewed for input into the model as boundary conditions, initial conditions, and grid generation. Additional coastal process information such as historic volumetric changes under development by PBS&J will be reviewed as available. 1 COASTAL PLANNING & ENGINEERING, INC. Clam Bay Subcommittee March 18, 2010 VIII-3 New Business 20f7 2. Development and Calibration of a Circulation Model The model will be set up and calibrated to existing conditions measured during recent field measurements. This task includes the development of model computation grid, bathymetric grids, and hydrodynamic model calibration. The numerical model grids will cover the entire Clam Bay estuary (outer Clam Bay, Upper Clam Bay, Inner Clam Bay), Clam Pass, Venetian Bay, Moorings Bay, Doctors Pass, adjacent shorelines and other significant water bodies directly connected to the Clam Bay Estuary system. The numerical model will be calibrated and validated to locally measured water levels, currents and distribution of water quality parameters (if applicable). During the calibration phase, a sensitivity analysis will be conducted to demonstrate variability of the input parameters used for the modeling effort. If sufficient data is available, the fresh water discharges into the estuary will be added to the model. The calibration parameters will be identified per recent FDEP guidelines. 3. Alternatives Development Hydrodynamic model simulations will be run for the different project alternatives to evaluate the changes in inlet and estuarine circulation. Up to six (6) conceptual modifications to the existing system will be developed and evaluated as part of an alternatives analysis to improve flushing in the Clam Bay Estuary system. The alternatives proposed for analysis will be based on the following concepts: (i) modify dimensions of Clam Pass entrance, (ii) modify the Seagate culvert system, and (iii) a combination of modifications to Clam Pass and Seagate culvert. These concepts may be modified based on the results of the preceding tasks if necessary. Each alternative will be run through the hydrodynamic model as described below for comparison purposes and identification of a preferred alternative for morphological modeling. 4. Modeling of Residence Time (flushing) Analysis The calibrated hydrodynamic model will be utilized to evaluate changes in flushing and residence time inside the Clam Bay Estuary associated with the different project alternatives. To simulate residence time, a conservative substance with a concentration of 'I' will be implemented in the Clam Bay Estuary as initial model conditions. The hydrodynamic model will be run until the concentration of the conservative substance decreases to '0'. Changes in the decay rates of the substances inside the Clam Bay Estuary due to the engineering interventions will be evaluated to quantify the impact of the project alternatives on water residence time and therefore bay flushing. Figures will be developed to illustrate the declining concentration with time in the estuary system, and illustrate the difference in flushing between the north and south areas of the estuary. 5. Modeling of Transport and Settling of Fine Sediments within Clam Bay Estuary The calibrated hydrodynamic model with sediment transport module will be utilized to evaluate patterns of transport and settling of fine sediments (very fine sand and silt) within the Clam Bay estuarine system for the different alternatives being evaluated as described above. The transport 2 COASTAL PLANNING & ENGINEERING, INC. Clam Bay Subcommittee March 18, 2010 VIII-3 New Business 30f7 and deposition will be compared with historic sedimentation patterns, if available, to establish trends in deposition and erosion of sediments in the system. 6. Sediment Transport and Morphology Modeling The sediment transport and morphology module of Delft3D will be utilized to calculate annual alongshore sediment transport on the open beaches adjacent to Clam Pass to evaluate the impacts of the proposed modifications on sediment transport along the coast, inlet channel stability, and outer channel annual sedimentation rates. The sediment transport formulation developed by van Rijn (1993) will be utilized for this purpose. To calibrate the morphological model, the annual alongshore sediment transport component of the model will be compared to alongshore sediment transport estimates along the shorelines adjacent to Clam Bay in terms of order of magnitudes and directions, as provided by PBS&J. Channel morphology change patterns will be compared to measured channel behavior. The calibrated morphology model will be used to evaluate the preferred alternative identified in the flushing analysis for refinement to minimize potential impacts on adjacent beaches and overall coastal system. 7. Analysis of Results and Final Report Preparation The results from the study will be summarized in a numerical modeling report. Recommendations for direct simulations of water quality phenomena such as salinity, temperature, nutrients dispersion (nitrogen series, phosphorus), and dissolved oxygen will be provided for Phase 2 of the study. If required, a draft report will be submitted to PBS&J for County and FDEP review and comments. After comments on the final report are received, CPE will update/modify the report and five copies of the final report will be prepared for PBS&J along with the report in Acrobat format. Report appendices will be delivered in the form of a CD containing all the electronic data and the report in electronic format. REFERENCES PBS&J, Clam Bay System Data Collection & Analysis, Prepared for Collier County Coastal Zone Management Department, October 2009. Van Rijn, L.c., 1993. Principles of sediment transport in rivers, estuaries and coastal seas. Amsterdam Aqua Publication 111, NUGI 186/831. 3 COASTAL PLANNING & ENGINEERING, INC. Clam Bay Subcommittee March 18, 2010 VIII-3 New Business 40f7 CLAM BAY ESTUARY MODELING STUDY - PHASE 2: NUMERICAL MODELING WATER QUALITY USING DELFT3D-W AQ COLLIER COUNTY, FLORIDA INTRODUCTION This proposal was developed as a value added element to the approved PBS&J scope of work for Clam Bay dated April 1, 2009 (attached). The work described herein will be performed by Coastal Planning & Engineering, Inc. (CPE) to conduct a numerical modeling simulations study of water quality phenomena such as temperature, salinity, nutrients and dissolved oxygen. The numerical modeling study will utilize a process based numerical model, Delft3D- W AQ, a numerical modeling system developed by Deltares (Delft, Netherlands). This scope represents Phase 2 of the overall study to evaluate the environmental processes of the Clam Bay Estuary complex and proposed modifications to the system. The following tasks are included in Phase 2: 8. Analysis of existing datasets and monitoring programs 9. Delft3D-WAQ Modeling of Temperature, Salinity, Nutrients and/or Dissolved Oxygen. 10. Analysis of Results and Final Report Preparation It is understood that PBS&J is the lead consultant on this project and will be responsible for project management with the County. CPE will attend meetings (1 committee and I CAe) that require technical modeling discussions and will report to PBS&J as needed for project status and progress updates. The objectives and task for Phase II modeling will be recommended in the Phase I report for approval by the County. TASK DESCRIPTION 1. Analysis of Existing Datasets and Monitoring Programs This task consists in the review of existing datasets including: bathymetric and topographic data, current and tide measurements, especially water quality measurements. The data will be reviewed primarily for water quality purposes for input into the model as boundary conditions, initial conditions, and grid generation. Data collection by PBS&J and the results of the Phase I study on physical processes will be incorporated. 2. Delft3D-W AQ Modeling of Temperature, Salinity, Nutrients and Dissolved Oxygen The water quality module of Delft3D has an extensive library of substances and processes that can be utilized to simulate water quality phenomena (Figure 1). As value-added services element to the scope of work proposed, CPE will conduct direct simulations of water quality phenomena such as salinity, temperature, nutrients dispersion (nitrogen series, phosphorus), and dissolved oxygen. An order of magnitude calibration of the selected constituents will be attempted based on the PBS&J data collection. It is anticipated that these environmental constituents will be identified based on the results of the Phase 1 study and concurrent committee 4 COASTAL PLANNING & ENGINEERING, INC. Clam Bay Subcommittee March 18, 2010 VIII-3 New Business 50f7 meeting and field investigations. These simulations would enable a direct evaluation of the effect of the proposed system modification alternatives in the salinity levels, dissolved oxygen, and nutrient concentrations trends inside the Clam Bay estuarine system. * Atmosphere S ajj~'1Hy Chi'crkili' (,1.tater Figure 1. Range of processes and substances included in Delft3D W AQ. 3. Analysis of Results and Final Report Preparation The results from the study will be summarized in a numerical modeling report. If required, a draft report will be submitted to PBS&J for County and FDEP review and comments. After comments on the final report are received, CPE will update/modify the report and five copies of the final report will be prepared for PBS&J submittal to the County and FDEP. Report appendices will be delivered in the form of a CD containing all the electronic data and the report in electronic format. REFERENCES PBS&J, Clam Bay System Data Collection & Analysis, Prepared for Collier County Coastal Zone Management Department, October 2009. F: marketing/proposals/fl_counties/collier/clam pass/20IO clam bay modeling/clam bay SOW...Feb 25 2010 5 COASTAL PLANNING & ENGINEERING, INC. FINAL Clam Bay SubcommiCM:~ I,(m1 0 VIII-3 New Business VIII-6 New Business 60f7 100f12 April 1, 2009 Task 4a - Development of a Circulation Model for Clam Bay Estuary In order to examine detailed circulation patterns within the Clam Bay Estuary, a numerical hydrodynamic model will be developed. The model will be utilized to provide the baseline conditions of the system with regards to circulation and residence time, assist in predicting the performance of proposed circulation enhancement activities, and provide the basis for the sediment transport model in Task 4b. In support of the proposed hydrodynamic modeling effort, field data previously collected will be utilized. These data include a bathymetric survey, water level time series at seven locations, and water velocity time series at five locations. These data will be used to create an elevation grid, provide boundary conditions, and calibrate the model. The model domain will encompass the region from Upper Clam Bay to Doctor's Pass. PBS&J will evaluate multiple conditions for this effort: a. Existing conditions b. Modified conditions, including, but not limited to, optimization of the Clam Pass inlet cross-section to optimize tidal flushing, and modified culvert/opening/bottom elevations at Seagate Drive, Park Shore Drive, and Harbour Drive. Specific scenarios will be developed in conjunction with Collier County and the Clam Bay Water Quality and Runoff, Maintenance Dredging and Sand Bypassing Subcommittee. Model runs for existing conditions will be used to calibrate the model as well as address questions regarding existing circulation patterns within the project area. During the calibration phase, a sensitivity analysis will be conducted to demonstrate variability of the input parameters used for the modeling effort. Comparisons will be made with previous modeling efforts. Simulations of modified conditions will be utilized to address questions and issues regarding potential changes to hydrodynamics within the project area from existing conditions. All runs will simulate operational ("everyday") normal tidal conditions. This will include variations in a normal tidal signal that would be experienced annually; no hurricane or other extreme events will be modeled for this effort. An evaluation of extreme conditions is beyond the scope of this effort. PBS&J will provide, within the final report, the results of the hydrodynamic modeling effort. The information will include the following: o Description of measured currents and water levels taken as part of the calibration effort. o Description of the calibration and sensitivity analysis. o Description and sources of all bathymetric and boundary condition data utilized in the model. o Description and image files showing the extent and configuration of all model meshes. o Summary of results for all model runs. o Animation files of model runs (DVD). o Digital modeling files (DVD or CD). 9 FINAL Clam Bay SubcommiCt!€~ 1,0001 0 VIII-3 New Business VIII-6 New Business 70f7 110f12 April I, 2009 Task 4b - Sediment Bypassing and Transport Modeling In order to evaluate any proposed enhancement to the Clam Pass channel, a numerical sediment transport model will be developed. Based on the modeling effort completed in Task 4a, PBS&J will develop a numerical modeling scheme that will focus on the following: . Analyze changes in the wave field, current patterns, sediment transport pathways and rates, and morphology (erosion/sedimentation). . Evaluate the existing longshore transport and changes to longshore transport due to proposed modifications to the Clam Pass channel. . Evaluate different channel configurations to assess channel stability, flushing, and adjacent shoreline effects. Specific scenarios will be developed in conjunction with Collier County and the Clam Bay Water Quality and Runoff, Maintenance Dredging and Sand Bypassing Subcommittee. Model runs for existing conditions will be used to calibrate the model. During the calibration phase, a sensitivity analysis will be conducted to demonstrate variability of the input parameters used for the modeling effort. Simulations of modified conditions will be utilized to address questions and issues regarding potential changes within the project area. All runs will simulate operational ("everyday") normal tidal conditions. This will include variations in a normal tidal signal that would be experienced annually; no hurricane or other extreme events will be modeled for this effort. An evaluation of extreme conditions is beyond the scope of this effort. PBS&J will provide, within the final report, the results of the modeling effort. The information will include the following: o Description of measured currents and water levels taken as part of the calibration effort. o Description of the calibration and sensitivity analysis. o Description and sources of all bathymetric and boundary condition data utilized in the model. o Description and image files showing the extent and configuration of all model meshes. o Summary of results for all model runs. o Animation files of model runs (DVD). o Digital modeling files (DVD or CD). Data Analysis, Final Report and Coordination Based on information derived from the numerical modeling effort, PBS&J will develop recommendations that will outline strategies to manage the system to maximize the overall benefit. The usefulness of these circulation and sediment models is the ability to explore options to increase flushing within Clam Bay as well as between Clam Bay and adjacent water bodies, thus reducing residence time, and provide a prediction of the effect on submerged aquatic vegetation, water quality, mangroves, and benthic communities. The recommendations will also consider the costs and timelines of each option; PBS&J will use available resources to present options that are locally relevant to the issues of Clam Bay. - 10 Clam Bay Subcommittee March 18,2010 VIII-4 New Business 1 of 17 From: goldandrose@mac.com To: arcmi@comcast.net, tforcht@cityofmarcoisland.com, murrp2h@aol.com, larryhideaway@aol.com, rightperson71@comcast.net, apires@wpl-Legal.com, vnrios@marcocable.com, soreysan@comcast.net, Jmorel2409@aol.com Sent: 3/9/20102:04:48 P.M. Eastern Standard Time Subj: 1 of 2 emails on the Wanless Review Agenda Item Greetings, In your backup material for your Agenda item, on the Dr. Wanless Review,is a nasty and insulting email by Michael Bauer, the Director of Natural Resources for the city of Naples who opined the review is nothing mcre than my direction to Dr. Wanless of what to write. It is shocking to see such an opinion from a public official to be included in your agenda. As regards Mr. Bauer's email, I ask "What dispute?". The Mangrove Action Group is not engaged in a dispute. We advocate for conservation, preservation and protection of the Clam Bay / Clam Pass preserve. We advocate for responsible management of what we consider a highly productive and valuable wetlands estuary that is a designated Conservation Area and Natural Resource Protection Area. Environmental Advocacy is not considered by the Mangrove Action Group to be a dispute. A further response to the insulting Bauer em ail is in my preface to Dr. Wanless' reply. Under Mike Bauer's watch, politics trumps science with his misleading WQ program in Moorings Bay that only samples four sites, directly in its dredged main channel. This WQ sampling of the dredged main channel is repeatedly misleadingly identified in the October 2009 PBSJ Clam Bay report and again in their response to Dr. Wanless Review, as WQ for ALL of Moorings Bay. Why does Naples WQ program for Moorings Bay studiously avoid taking samples anywhere even remotely near the 74+ pipes sticking out of Moorings Bay seawalls? Is it because the results of such sampling would give quite different results to factor in for ALL of Moorings Bay due to the untreated stormwater those pipes dump into Moorings Bay's dead end canals where it stagnates? Apparently, the Director of Natural Resources for Naples, has a lot at stake ifFDEP were to take a real close look at Moorings Bay again. A public agenda is no place for Mike Bauer's emailed baseless attack on the integrity of Dr. Wanless, his Independent Peer Review of the PBSJ report, and the Mangrove Action Group. However, Dr. Wanless' reply to the PBS&J Response to his review absolutely should be included along with Dr. Wanless' Review of the PBS&J report and the PBS&J response to his review. Accordingly, I am providing Dr. Wanless' reply to the PBS&J Response along with this email. I am requesting that Dr. Wanless' Response be included in with the other backup items. I had already supplied this to the CAC in January, but you delayed this agenda item until February. Your February meeting was cancelled. My original submission of Dr Wanless's Reply to the January agenda item has been available to this committee with ample time to include it with the backup to this agenda item. I am again providing Dr. Wanless' reply to the PBS&J Response to his review and his reply to Mike Bauer's email on this subject. I have preceded his reply with my own preface rebutting Mike Bauer's baseless and outrageous attack on the integrity of Dr. Wanless, his Independent Peer Review, and the long- standing and respected Mangrove Action Group, of which I am current president. Dr Wanless' Reply to the PBSJ Response and the Bauer email is being sent to you as a second email today. It includes a preface by me to refute Mr. Bauer's email as yet another misrepresentative item County Staff has placed on the public record. The public deserves to have the Wanless reply and the Mangrove Action Group reply. Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 2 of 17 Cordially Yours, Marcia Cravens Mangrove Action Group, President Qoldandroseaumac.com Marcia Cravens = Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 3 of 17 From: goldandrose@mac.com To: tforcht@cityofmarcoisland.com, murrp2h@aol.com, larryhideaway@aol.com, rightperson71@comcast.net, apires@wpl-Legal.com, vnrios@marcocable.com, soreysan@comcast.net, Jmorel2409@aol.com, arcmi@comcast.net cc: garymcalpin@colliergov.net Sent: 3/9/20102:06:07 P.M. Eastern Standard Time Subj: 2 of 2 emails on Wanless Review agenda item; Release of Dr. Wanless reply to The Mangrove Action Group (MAG) obtained an Independent Peer Review of the Post, Buckley, Shuh and Jernigan's "Clam Bay Data Collection and Analysis" report because earlier reviews by the two technical specialists on the Clam Bay Advisory Committee, were marginalized and then ignored by the County. The 17 page review by Kathy Worley, Sr. Biologist for the Conservancy was an objective and thorough review, as was the 5 page review done by retired Corps geologist David Roellig. Yet their incisive reviews were disregarded and shoved aside by the County As MAG's president, with full confidence of MAG's board, I selected Dr. Harold Wanless to do the PBSJ review. I had initially identified Dr. Orrin Pilkey for the review, due to his nearly half century of studying, teaching and writing about sediment, coastal systems, and anthropogenic impacts to coastal areas. However, when I contacted him, he strongly recommended Dr Wanless to do the review instead of himself. I placed great weight on Dr. Pilkey's recommendation and also that of Kathy Worley, whose objective research for the Conservancy warranted respect for her recommendation. Yet. the maior and decive factor for mv choice of Dr. Wanless to do the Indeoendent Peer Review on PBSJ's "Clam Bav Data Collection and Analvsis" report for the Mangrove Action Group was his familiarity with Clam Bav from the 1970's and again in the late 1980"s. The only "direction" Dr. Wanless needed was to give an independent peer review ofPBSJ's "Clam Bay Data Collection and Analysis report. Dr. Wanless' work soars on its own merit. Attached is Dr. Wanless' CV. His body of work is impressive. Among the highlights of his knowledge and experience that make Dr. Wanless an outstanding reviewer: *Scientific Advisor to the City of Naples on beach, lagoons, and wetland systems in 1978 and again from 1989-1990. He was and is familiar with Collier County's coastal systems, including Clam Bay. *Technical advisor to SFWMD from 1997 to present. *Contributed to RECOVER, an arm of the Comprehensive Everglades Restoration Plan for four years. * Advised on (successful) restoration of Biscayne Bay natural resources, * Advised Everglades National Park on their SW coast instability. *Has written extensively on sediments, mudbanks, sea level rise, and impacts to mangroves.. Additionally, Dr. Harold Wanless is uniquely qualified to review reports on Gam Bay because he has knowledge and experience of the Clam Bay system pre-development in the 1970's. He also analyzed and wrote an unbiased opinion on causes for Clam Bay's large black mangrove die-off in the 1990's. I sent Mike Bauer's comments to Dr. Wanless. His reply was thoughtful and direct. He astutely pointed out that certain statements in Mike Bauer's email, (unwittingly) indicated one reason why the PBSJ study is inappropriate to be used as the basis ofa "modeling", the PBSJ study is too limited. We echo Dr. Wanless quiry, Where is the data? What data does Bauer use for his astounding mention of Outer Clam Bay being affected by Doctor's Pass? To my knowledge none of the numerous studies of Clam Bay indicate any influence on it from Doctor's Pass. Instead, they indicate little flow through the culverts at Seagate Drive which "sloshes" back and forth. A dye test, performed in the 1980s by the Department of Environmental Regulation, showed flow disappeared not far from the culverts. Dr. Wanless' gave his permission to circulate his reply to PBSJ's response and Bauer's comments. Attached are items for your consideration (several items are within the pdf). I) Dr. Wanless Reply to Mike Bauer's email and the PBSJ Response to his review. 2) Mike Bauer's email commentingonDr.WanlessReviewandthePBSJreport(pdf.pg 8). 3) PBSJ response to Dr. Wanless Review (pdf, pgs 10-12) 4) Dr. Wanless Review ofthe PBSJ Report (pdf, pgs 1-7) Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 4 of 17 It is entirely unacceptable that local government attempts to discredit or silence all reviews ofthe PBSJ report that expose its poor methodology and inadequacy to be used for modeling. The Mangrove Action Group has earned the respect of our community. MAG networks and shares common concerns and efforts for improving conservation, preservation and protection of what little remains of our coastal natural resources with other more well-known environmental organizations. Weare offended and refute the false allegation by Mike Bauer that our organization "directied" Dr. Wanless what to write in his review. Rather than discrediting Dr. Wanless or the Mangrove Action Group, Mike Bauer has effectively diminished his own stature. Marcia Cravens Mangrove Action Group Attachment (1) From: "Wanless, Harold" <hwanless@mail.as.miamLedu> Date: January 15, 2010 12:59:42 PM EST To: Marcia Cravens <qoldandrose@mac.com> Subject: RE: see responses to review on pg 6 and 10-12 in attached pdf, XI Wanless Review-6.pdf Actually Bauer's comments are important because they state the the JBS&J study was limited. Bauer states: "It is not a comparison of Moorings Bay and Outer Clam Bay as he states. It is not a biological study. It is not a year-long flow study. It is a study, limited by time and money, to determine basic water quality and hydrologic flow conditions in Outer Clam Bay and how it is affected by its connections to the Gulf of Mexico - through Clam Pass and Doctors Pass." Well, the PBS&J study certainly did a lot of comparisons of Clam Bay and Moorings Bay. And in doing so, the study evaluated the ecology and biological health of the two systems. Neither of which was justified because of the limited scope of the study. That was an important thrust of my review. It is impossible to further evaluate the worth of the JBS&J report's discussion on sea grasses until the exact methods used are given and a comparison of how they compared with earlier studies. The earlier studies talked about non- ephemeral sea grasses in a number of locations. In PBS&J's response to my report, they seem to keep doing what I found inappropriate - taking pot shots art the water quality of Clam Bay. They are using more disguised phrasing now. I do agree with their comment that "Existing water quality standards from FDEP are problematic." I have been saying that since the Marco-Rookery Bay days of the early 1970s. Their comments 4 and 5 miss the point. Hal Dr. Harold R. Wanless Professor and Chair Department of Geological Sciences College of Arts and Sciences University of Miami P.O. Box 249176 Coral Gables, FL 33124 or 43 Cox Science Building 1301 Memorial Drive Coral Gables, FL 33124 305-284-4253 Attachment (2) Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 5 of 17 = From: Sent: To: Cc: Subject: Mike Bauer [rnbauer@naplesgo\l.com] Thursday, January 07, 2010 8:24 AM McAlpinGary och:U RE: tvi - fIN: Dr. Wanless's review of PBSJ report Un~ortlin...te!,;" the report by Dr. Wanless is a good example of ......Imt happens when a scientist is employed by me side of a dispute to support their posilioo. Responding only to what he was tald by his employer, he makesoosic, criticllil assumptions about the report that are Just flat wrong. He did not talk to the nor did he uilk 10 me County to see what they were looking ror ' are latal flli/lInt. It is not a comparison of Moorings Bay llf'4ClOuter Clam 8ay as he s1ates. nis FAll ill biological study. rt is not a ~fear-rong fbw study. it isa study, limited by time llf'4Cll'!"lOOey, to deJ.ermine basic water quality and hydrologic flow condiOOns in Outer a!h'l'l Bay and 1lc'iY it isaftected by ils connections to the Gulf €If MeJcico- through Clam Passarnl DoClDrs Pass. It would be ~antastic to obtain inlormation on all the matters Dr. Wanless mentioos; is he wilmngla gather that data fOJ' free? 01 paltil::ul!h' impon to me are the comments ooseaglasses. Prooah4yunintentionally, he compares disparale geographical areas. Yes, seagrasses are more abundant if! a small areaoumde Outer Clam Bay., but in that bay, they have continued to decline. Yes,an initial report done by 01. Torna:lKolcnmcl seagrasses, but it was a different, highly ephemeral species that was responding to clrol.i1!ln conditions and is here today, gooelcmorrow. Dr. Tomasko did 001 flflcl the important, pioneering seagrass species that has been monitored for the last ten years and is in serious decltne. When Dr. Tomaskocameb\ack and did thissmdy, he did nOlfind!he. ephemeral seagrass he found previously, Iilnd he reponedlhlilt Michael H. Bauer, Ph.D. Nannal Resources 'Manager City of Naples 239213-1031 Attachments (3) and (4) = = Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 6 of 17 Review of Clam Bay System Data Collection and Analysis by PBS&J, October, 2009, and Response to Comments RE: Clam Bay System Data Collection & Analysis Report (October 2009) by PBS&J on November 17, 2009. Harold R. Wanless, Ph.D., Registered Florida Professional Geologist #985. Coral Gables, Florida 33134 Submitted January 4, 2010 Having reviewed the report and response, I find the efforts misleading and many of the conclusions unwarranted. Sand versus mud; high versus low oxygen Although the 'response' says it is not so, the executive summary paints a picture of Clam Bay being bad and Moorings Bay as being better. Sand and gravel may have better pore water oxygen levels and have less oxygen demand on the overlying water, but they provide little to eat for deposit feeders. Sand and gravel, having much less surface area, will always have less pollutants, less contaminants, less organic matter, and less food value than mud. Grainier, cleaner and more oxygenated does not make it better. This was well established back in the Marco/Rookery Bay years and should be restudied now. Dr. Bernard Yokel pointed out that the black mangroves were a fermenting ground for organic decay and high spring and seasonal tides would reach into the black mangrove forests and release this rich nutrient soup to the coastal waters. These releases would trigger blooms and a dispersing food pyramid bonanza that a hierarchy from fish to mammals would time their reproduction around. What is to us this black, rotting disgusting muck is, to many other organisms, the essence of life. These benefitting organisms may not be living right there, but in adjacent waters waiting for the dispersal. In evaluating the water and bottom nutrients, texture, redox and such, there is no assessment of the role of nutrient drainage input from the adjacent developed upland. It is also important to know the amount of historical erosion (or growth) of mangrove swamps and release (or uptake) of organic detritus and sediment as the result of the accelerated rise in sea level since 1930 or in response to recent hurricanes or recent human activity (such as dredging). The report implies it is bad when muddy sediment has come in to an area that was artificially dredged to deeper depth. This is a severely poor conclusion. Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 7 of 17 There is lots of fine grained particulate material in the natural system and it will fill in any area where there is insufficient energy to move it on. This results in shallowing and usually an improvement in desirable ecological functionality. The whole section on redox and anoxia in the sediment seems most meaningless. The muddy sediment beneath the clear, well-oxygenated waters of Biscayne Bay and Florida Bay is normally anoxic within a centimeter of the surface. This will always be the case for muds which contain organic matter which produce significant oxygen demand. And most striking are the mud deltas forming in Lake Ingraham, in Cape Sable. They are building at as much as 15 centimeters a year, contain as much as 35 per cent organic matter, have only a few millimeters of oxidized sediment at the top - and are intensely burrowed by an abundant benthic community, covered by a dense algal mat, and used by a great diversity of wading and water birds for feeding and resting (Wanless and Vlaswinkel, 2005). Mangroves and Seagrasses The fundamental value of the Clam Bay systems is the abundant mangrove wetland community and the seagrass and algal mat estuarine community and the immense service that these provide to the benthic and bird communities within the system and in the adjacent nearshore marine. A pre-development report by Lugo (1976) stressed the need to preserve majority of Clam Pass system in its natural state, highlighting the mature and valuable black mangrove basin forest of this system. Even in a setting with ephemeral connection with the sea through Clam Pass, the mangrove forest had found a way to thrive using groundwater flow through the barrier island to maintain flushing and drainage of elevated flood waters. There is no comparison between a bulkheaded sea wall and a mangrove wetland with respect to environmental value, yet this report seems to ignore the uselessness of seawalls, and fails to mention that there have been ongoing attempts to rim or replace them with rip rap as an improvement. I should point out that the mangrove systems on the Vanderbilt Bay area was doing fine until the flow through the sandy island barrier was cut off. The mangrove die off then produced accelerating decay products that overwhelmed the system forcing a need for stronger flushing via surface flow. Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 8 of 17 In my occasional visits to the Clam Bay system, I recall much more sea grass than described in this report. In fact I there is a 2007 PBSj report of "Clam Bay Seagrass Assessment" which found 43 per cent occurrence of seagrass in random sample sites in Outer Clam Bay (probably the same report that is referenced as PBS&j, 2008, in the 'report'. Since that report, there was further documentation of more species and coverage of seagrass in the Clam Pass estuarine system along transects done in 2007 for the annual biologic monitoring done by Turrell, Hall & Assoc. The apparent resurgence of seagrasses continued to be reported in the 2008 Biologic Monitoring Report of the Clam Pass System by Turrell, Hall & Assoc. Why are these recent results not mentioned in this report, and why is the amount of seagrass observed in this report so diminished? The report notes that the sea grass cover is even diminished over observations in a '2008' PBS&j report (Is this the same as the 2007 draft report of observations made in 20077). It is irresponsible science to ignore important literature results such as these. The current report paints a very different picture of the Clam Bay system than is documented in previous reports. That difference is cursorily dismissed as something to do with the ephemeral nature or reproductive problems of the main species (Halophila). Other reports document a fairly widespread occurrence of Halidule and a persistence of Thalassia in some areas. It is wrong to so casually dismiss these other more rigorous reports. If these changes are real, then it is critical to assess the timing of loss so as to determine the causes (I am aware that there have been recent dredging events). If these changes are not real but the result of too 'general' field observations, then the quality of this research project should be called into question. Ecology This report presents data on aspects of the environment (the physical and chemical characteristics of the coastal bay system). It provides no information of substance on the organisms in these environments and no information of substance on the ecology (the relation of the organisms to the environment). Yet the report is constantly evaluating what is good and bad for the organism communities. All of this undocumented speculation should be deleted. It would be better to do a responsible literature evaluation of the ecological relationships that have been established and published from the abundance of research that has been done over the years in The Rookery Bay - Marco area. Clam Bay Subcommittee March 18, 2010 VIlI-4 New Business 9 of 17 The vibrance of the Clam Bay system is the rich mangrove-seagrass-algal base which feeds a variety of small organisms which nurture a great abundance and diversity of juvenile to adult fish. These relations were not recognized or addressed in this report. The authors of this report have no business making value comments on the ecology of the system as they have not documented the biological components or the important relationships. Circulation and Models A report in Collier County's files by this author in the early 1990s documents that the mangrove die off in northern Clam/Vanderbilt Bay was caused by the road into the houses which cutoff an active drainage, flushing, and water exchange through the pore waters in sand of the narrow beach. This was well established with monitoring wells in which tidal fluctuation would move through the island with a time lag but nearly undampened in amplitude (except where blocked by the road structure which extended down through the sand and into the underlying less permeable mangrove soil). It is impossible to recreate a healthy environment when the causes for historical problems are not properly identified Additionally, as a major portion of the drainage, flushing, exchange and water exchange of the coastal bays along this stretch of coast is through the narrow barrier islands, any present or future modeling will be useless unless this important component of coastal circulation is accurately empirically documented so it can be properly incorporated into the models. This concern also applies to the sandy landward margin to the bays and to the underlying limestone (where its groundwater interfaces with surface flow of the bays). Adequate Associated Information of Sampling Period Only in the 'response' was some information provided as to the nature of the condition during the 2 day and 8 day sampling period in August, 2009. What was the weather and hydrographic conditions (rainfall, winds, tides, air and water temperatures, etc) for the several weeks prior to the sampling as well as during sampling? This is critical for evaluating water levels, flow, circulation, nutrient levels, and such. The 'response' that certain things are not important or were essentially normal is not for those writing the report to decide. Provide all the information so those using the report can fully evaluate the study. Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 10 of 17 August can be a time of high temperatures, intense local rainfall, unique winds, and higher than normal seasonal tides that do not represent conditions at other times of the year. It is important for the reports sampling to be put in proper perspective. For example, as mentioned earlier, the higher high tides of the year reach into the black mangrove wetland soil and withdraw intensely rich organic suspensions which circulate through the coastal bays and into the nearshore marine waters. How do the tide elevations and ranges of the sampling period compare with the rest of the year? A NOAA report documents exceptional tides along a portion of the Atlantic coast during the summer of 2009 (as much as 60 centimeters above projected levels because of slowing of Gulf Stream flow) and southeast Florida had tide levels running over 30 centimeters above projected levels into October. Was any of this elevated tide occurring along the Collier County coast prior to or during the sampling interval? These kinds of information are critical to put this study's data collection interval into a meaningful perspective. Description of Field Observations The bottom of page 7 of the report says: "At each site, observations were made of the general biological community structure and health." Exactly what does this mean? Was some type of quadrants or profile lines used? How extensive an area was surveyed? How did the methods in this report compare with that in the reports mentioned in the mangrove and seagrasses section above? How was 'health' measured? How was 'community structure' measured? My copy of the report did not have anything but an algae map and sea grass map in terms of data? Where is the data? I am concerned that there is not much that is real biological information here, just fancy words. Water Quality Locations and Implications The report suggests that Moorings Bay is better than the natural Clam Bay system (Page V of Executive Summary). The logic of the report is ridiculous. The writing implies that this problem is because of a variety of things in the natural system including the decline in tidal amplitude and increased tidal lag because of 'channel meandering, constrictions and friction losses in the system.' Ridiculous logic. Then the Executive Summary states that 'Moorings Bay, although subjected to extensive urban stormwater runoff, appears to have water ecology conditions better than those found in Clam bay; this is supported by the results of the Redox layer investigation.' What are those better water Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 11 of 17 ecologic conditions? Explain how Moorings Bay is better in providing a functional habitat, environment, and nutrient release of this mangrove fringed estuary system? It looks as though the sampling sites in Moorings Bay are primarily channel sites with strong flow. Why are there no sample sites in the more stagnant backwater corners of the Moorings Bay maze? What is the water depth of Moorings Bay? Summary I find that this report is at best a weak data set that is surrounded by too much environmental and ecological speculation that is not tied to the pertinent and thorough literature of southwest Florida estuarine dynamics and, ecology. At worst, it has the tone that it was written for developers to give the green light to have more sand and concrete. Since the early 1970s, southwest Florida has seen too many reports like this that attempt to diminish the value of the natural environment and put dramatically modified dredge and fill environments on an equal footing. Is it possible that this report is trying to set the stage for expanded future dredging activities to 'improve' the natural areas? It reads that way. I would recommend that the County take a reverse approach. Moorings Bay is an artificially deepened system to provide fill for bordering lots. The bottom is too deep over most of the dredged area for sea grasses to live. The quality of that Bay could be dramatically improved if those deeper areas not necessary for navigation were shallowed either with blanket fill or with localized artificial reefs. Shallowing the bays would provide conditions for increased sea grass cover (more light to the bottom and higher oxygen levels); the artificial reefs would provide habitat for oysters, sponges and such which further filter the water and improve water clarity and light penetration. Complement that with rip rap in front of seawalls, including some intertidal areas for re-establishment of mangroves and you will have greatly enhanced the desired ecological functionality of Moorings Bay. In the early 1980s, I did a study on the causes for elevated turbidity in northern Biscayne Bay in Miami-Dade County. This bay had been similarly modified by dredging and bulkheading. The recommendations were as described above (Wanless et aI., 1984). Since that Clam Bay Subcommittee March 18, 2010 VIlI-4 New Business 12 of 17 time the County has been persistently following a program of installing rip rap and mangrove intertidal areas in front of sea walls and fill shorelines, shallowing up deep dredge areas so seagrass can recolonize and, installing numerous artificial reefs from clean construction debris. The Bay has persistently improved in water clarity and ecological functionality, and the artificial reefs have proved great fishing sites. Many of these recommendations were put forth in a 1981 Diagnostic/Feasibility Study for Moorings Bay which I believe was included as an appendix of the 1991 Coastal Zone Management Plan. Why is this not acknowledged and discussed here? In fact, there is a serious disregard for earlier research and recommendations on this Vanderbilt/Clam Bay/ Moorings Bay system and on similar systems of southwest Florida. The failure of this report to do a thorough literature review would save the County from redundant studies or erroneous conclusions due to missed historic data and missed scientific documentation and evaluation of ecosystem dynamics. This absence further suggests that this report is not a scientific report but more of a political-economic positioning paper. References (not cited in 'Report') Florida Department of Environmental Regulation, 1981. Diagnostic/feasibility study for Moorings Bay, Collier County, Florida, 12 p. Lugo, A.E., 1976. Role and productivity of black mangroves, 31p in Southwest Florida Regional Planning Council Report: p. 74-103 in provided 'GeneraL20080826083149.pdf' . Wanless, H.R., Cottrell, D., Parkinson, R., and Burton, E., 1984. Sources and Circulation of Turbidity, Biscayne Bay, Florida. Final report to Sea Grant and Dade County, 499 p. Wanless, H.R., and Vlaswinkel, B.M., 2005. Coastal Landscape and Channel Evolution Affecting Critical Habitats at Cape Sable, Everglades National Park, Florida. Final Report of Research Project to Everglades National Park, 197 p. (available online: http://www.nps.gov/ever/naturescience/cesires02-1.htm ) Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 13 of 17 From: Sent: To: Cc: Subject: Mike Bauer [mbauer@naplesgov.com] Thursday, January 07, 20108:24 AM McAlpinGary ochsJ RE: fyi - FW: Dr. Wanless's review of PBSJ report Unfortunately, the report by Dr. Wanless is a good example of what happens when a scientist is employed by one side of a dispute to support their position. Responding only to what he was told by his employer, he makes basic, critical assumptions about the report that are just flat wrong. He did not talk to the people who carried out the study, nor did he talk to the County to see what they were looking for when they hired PBS&J. These are fatal flaws. It is not a comparison of Moorings Bay and Outer Clam Bay as he states. It is not a biological study. It is not a year-long flow study. It is a study, limited by time and money, to determine basic water quality and hydrologic flow conditions in Outer Clam Bay and how it is affected by its connections to the Gulf of Mexico - through Clam Pass and Doctors Pass. It would be fantastic to obtain information on all the matters Dr. Wanless mentions; is he willing to gather that data for free? Of particular import to me are the comments on seagrasses. Probably unintentionally, he compares disparate geographical areas. Yes, seagrasses are more abundant in a small area outside Outer Clam Bay, but in that bay, they have continued to decline. Yes, an initial report done by Dr. Tomasko found seagrasses, but it was a different, highly ephemeral species that was responding to drought conditions and is here today, gone tomorrow. Dr. Tomasko did not find the important, pioneering seagrass species that has been monitored for the last ten years and is in serious decline. When Dr. Tomasko came back and did this study, he did not find the ephemeral seagrass he found previously, and he reported that. Michael R. Bauer, Ph.D. Natural Resources Manager City of Naples 239213-1031 From: McAlpinGary [mailto:GaryMcAlpin@colliergov.net] Sent: Wednesday, January 06, 2010 1:52 PM To: Mike Bauer Subject: FW: fyi - FW: Dr. Wanless's review of PBSJ report From: ochs_1 Sent: Wednesday, January 06, 2010 12:55 PM To: McAlpinGary; ramsey_m Subject: FW: fyi - FW: Dr. Wanless's review of PBsJ report ??????? From: ResnickL Sent: Wednesday, January 06,201012:18 PM To: ochs_l; Sheffield Michael; brock_m Subject: fyi - FW: Dr. Wanless's review of PBsJ report fyi re: independent peer review of PBS) Clam Bay Analysis Lisa Resnick Administrative Assistant Pelican Bay Services Division A Municipal Service Taxing & Benefit Unit 801 Laurel Oak Drive, Suite 605 Naples, FL 34108 2.39.597.1749 Tel. 2.39.597-4502. Fax I isaresnick@colliergov.net Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 14 of 17 http;//pelicanbayservicesdivision.net From: teedup1@aol.com [mailto:teedup1@aol.com] Sent: Wednesday, January 06, 2010 11:43 AM To: ResnickL Subject: Fwd: Dr. Wanless's review of PBSJ report -----Original Message----- From: Marcia Cravens <goldandrose@mac.com> To: Teedup1@aol.com Sent: Wed, Jan 6, 201010:38 am Subject: Dr. Wanless's review of PBSJ report Mary Anne, Here is the review commissioned by the Mangrove Action Group by Dr. Wanless of the University of Miami. public records, If you do this office by address r01eased !n response 3. do not send Clam Bay Subcommittee March 18,2010 VIII-4 New Business 15 of 17 4030 West Boy Scout Blvd Suite 700 Tampa, FL 33607 800.477.7275 January 11, 2010 PBS&J Response to Criticisms by Dr. Harold Wanless, commissioned by Pelican Bay's Mangrove Action Group, dated January 2010. To: Gary McAlpin - Director, Collier County Coastal Zone Management From: Jeff Tabar, PE Dave Tomasko, PhD Bryan Flynn, PE Todd DeMunda, EI As in other reviews of our report, most of the comments on the PBS&J report were related to water quality and the natural systems characteristics of both Moorings Bay and Clam Bay. In particular, most comments related to the perception that the two systems were being compared to each other, particularly in terms that were unfavorable toward Clam Bay's water quality, without due consideration of its broader ecological health. The report clearly refers to the loss of natural shoreline features in Moorings Bay, and in fact includes two aerial photographs to highlight that impact. We believe that the text is very clear in noting that Clam Bay has retained most of its natural shoreline features, while Moorings Bay has not. However, the scope of work (reviewed and approved by the Clam Bay Advisory Committee) did not include an assessment of the ecology of either system. This project was focused on water quality, specifically as it relates to the Impaired Waters Rule (IWR) and the Total Maximum Daily Loads (TMDL) program. The following text will attempt to address concerns that appear to underlie the majority of comments received. Summary points and comments are as follows: 1. Moorings Bay and Clam Bay are different systems, and their ecological values are different. It is noted in the report that Moorings Bay has none of the natural shoreline features of Clam Bay. But the focus of this report, based on a scope of work reviewed and approved by the Clam Bay Advisory Committee, did not include assessments of shellfish and finfish or bird abundance. The wording used in Section 4.0 in the PBS&J report does not suggest that Clam Bay's ecoloav is "impaired", only that existing state guidance would likely result in its water qualitv being determined to be impaired. 2. The shallow Redox layer and fine-grained sediments noted in Outer Clam Bay are to be expected from a "natural" mangrove-lined system. The authors agree that the organic-rich sediments and shallow Redox layer found throughout Upper, Inner and Outer Clam Bay could in fact be a completely natural feature, as most mangrove-lined, semi- Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 16 of 17 isolated systems have thick organic layers that are associated with low levels of DO and a heterotrophy- dominated food web (note language used in Section 4.0, and bullet points in the Executive Summary). However, the fine layer of silt and silty clay found in Outer Clam Bay, in particular, may or may not be related to human activity. The fine-grained sediments in the Seagate Canals certainly do not appear to be an entirely natural feature. The authors do not agree with anyone's characterization that Outer Clam Bay's sediments are "natural" as that conclusion cannot be reached with the available information. As the authors have stated at numerous presentations, a sediment aging and toxics assessment study are appropriate. If no elevated toxins are found in Clam Bay, and sediments have accumulated in a natural (or near natural) rate for the past few decades, then no concerns are warranted. But if elevated levels of toxins are found, and sediment accumulation rates have been dramatically increased in recent years, then these sediments are in fact problematic. Until these questions are answered, no conclusion as to their "natural" condition can be made one way or the other; not by the authors of this report, and not by reviewers of this report. Interestingly, the 1975 EPA study on Clam Bay and Moorings Bay (called Parkshore in that study) concluded that reduced numbers of taxa (i.e., species of benthic organisms) were likely associated with the increased amount of fine-grained sediments (i.e., silt) in those same locations. If such sediments have unnaturally accumulated, there ~ an ecological problem with these sediments. 3. Water quality in Moorings Bay must be adverse /why wasn't the 1981 study by FDER used? This reviewer and others have made multiple references to the lack of inclusion of data from a 1981 study on Moorings Bay. That study characterized the water quality within Moorings Bay during the period of 1977 to 1980, nearly 30 years ago. That report also included references to a trend of improving water quality, suggesting that the poor water quality in Moorings Bay in the 1970s might not be relevant today. The following table summarizes the water quality data set used in the PBS&J report (as provided by the PBSD over the period of record from non-berm and non-pond locations) with Moorings Bay water quality data from 2008 to 2009 (provided by the City of Naples). These results are not meant to indicate that Moorings Bay is "healthier" than Clam Bay, but from a regulatory perspective, multiple locations in Clam Bay do not meet existing water quality standards, while most of Moorings Bay does. This is a central conclusion of the PBS&J report - it is highly recommended that Collier County work with FDEP to develop locally-appropriate water quality standards for its estuaries; this should not be a controversial conclusion. Existing water quality standards from FDEP are problematic, as was pointed out in several locations in the report. Staff from FDEP has confirmed that it is likely, based on data collected by the Pelican Bay Services Division, that Clam Bay would be declared "impaired" for DO. This impairment status decision could be problematic, as the report clearly states. In particular, the report cites the example P8SJ 2 Clam Bay Subcommittee March 18, 2010 VIII-4 New Business 17 of 17 of Rookery Bay, which has been listed by FDEP as "Verified Impaired" despite the fact that the authors of this report (and at least one reviewer) regard Rookery Bay as mostly an unimpaired system. An additional specific example of the unrealistic nature of IWR's default DO targets for the western Everglades is outlined in the report. While wildlife utilization by birds, fish, etc. may in fact be higher in Clam Bay, compared to Moorings Bay, the IWR and the TMDL programs do not allow for the luxury of claiming systems to be "pristine" due to an abundance of wildlife alone. Somewhat paradoxically, one of the most impacted lakes in Florida (Lake Hancock), which has incredibly poor water quality and a TMDL calling for more than 70 percent reductions in TN and TP loads, is also home to thousands of alligators, and has a significant number of bald eagles along its shoreline. Wildlife utilization and water quality do not always "match" and it would thus behoove the County to develop its own site-specific water quality standards. 4. Flow through the barrier island is a major factor in the exchange between Clam Bay and the Gulf, and must be accounted for to make any realistic assessment of circulation. In the number of reports and previous studies reviewed by PBS&J, no reference was found suggesting that flow through the barrier island was a major factor in the exchange of water between the Gulf of Mexico and Clam Bay. Tide and current data from the PBS&J effort as well as others (USEPA 1976, Tackney 1996, Humiston & Moore 2003, etc.) suggest that the meandering channels within the system account for the majority of the tidal exchange. Further, when evaluating changes to the system to increase tidal exchange (if warranted), the culprits of any inhibition of groundwater flow are fixed (roads, infrastructure, etc.), so modifications to these elements are likely not practical. 5. The August 2009 period of data collection is only representative of that time period, and cannot be used to infer circulation characteristics of the system for any other time. When conducting field studies with limited durations, there is always the concern of capturing transient or specific conditions. Several other factors are taken into consideration before deployment, including instrument access and sampling ranges. Comparing the results of the PBS&J data collection with several other studies as well as anecdotal reports shows similar circulation trends. Figure 7.14 in the report illustrates the predicted tide vs. measured tide at Doctor's Pass during the field data collection; there is no evidence of an elevated water level condition that would have caused abnormal flow within the estuary during the study period. PBSJ 3 Clam Bay Subcommittee March 18, 2010 VIII-5 New Business 10f3 OFFICE OF THE COUNTY ATTORNEY INTEROFFICE MEMORANDUM TO: Dwight E. Brock, Clerk of Court FROM: Jeffrey A. Klatzkow, County Attorney DATE: March 10,2010 RE: Florida Consultant's Competitive Negotiations Act I am writing as a follow-up to our recent conversations regarding the non-payment of invoices to various consultants who were retained through Collier County's Best Value Offer ("BVO") procedure as it relates to acquiring professional services. As I indicated when we spoke, it has been, and continues to be, the position of this Office that the County's BVO procedure is lawful and that those vendors whose invoices are being withheld for payment must be compensated. Work orders have been issued, and services have been performed, on a number of County projects in which the County utilized the BVO procedure. Payments which are now past due normally would have been made some time ago in accordance with the Local Government Prompt Payment Act. I recognize, however, that Section 129.09, Florida Statutes, forbids the clerk acting as county auditor from signing illegal warrants and provides both personal and criminal liability for violation of this provision, and that the clerk, as auditor, is required by law to refuse to sign and deliver a county warrant for an unlawful expenditure, even though approved by the board of county commissioners. Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977). My understanding is that you are withholding payment on significant concerns raised by the industry that the BVO procedure is unlawful as contrary to the CCNA. It is my belief that the County's BVO procedure is lawful. It is my further belief that if you disagree with this position, the fact that the methodology utilized in selecting the vendors may be flawed does not make the payment for services performed pursuant to the work orders illegal. The County's BVO Procedure is Lawful Collier County utilizes a BVO procedure in selecting professional services firms currently under continuing contracts (called fixed term contracts in the BVO procedure) for defined tasks. The procedure is defmed in Section VII (C) of the County's Purchasing Policy. The BVO procedure provides in relevant part as follows: "Prior to issuing a work order under a contract identified under Section VII.C.1-3, the Director shall have the discretion to solicit project or task specific proposals from one firm or from multiple firms under a fixed term contract. In such instances, each solicitation shall be issued on a "best value" basis where Clam Bay Subcommittee March 18, 2010 VIII-5 New Business 20f3 qualifications and price are considered. Each solicitation shall include at minimum a description of work to be performed and the criteria to be used to evaluate each proposal. For all "best value" based solicitations, price shall not exceed 50 percent of the total evaluation criteria." "Nothing in section 287.055, Florida Statutes, purports to regulate the terms of a continuing contract." Op. Att'y Gen. Fla. 07-07. "The Consultant's Competitive Negotiation Act does not provide criteria for negotiating a contract for professional services under a continuing contract and a municipality may develop its own procedures for evaluating such a contract." Op. Att'y Gen. Fla. 93-56. The only prohibition under the CCNA (added in 2005) with respect to continuing contracts is section 287.055(2)(g), which provides that "Firms providing professional services under continuing contracts shall not be required to bid against one another." None of the professional firms selected by the County bid against each other during the BVO phase because price has already been fixed during the competitive negotiation stage. The term "bid" is a term of art whereby parties, through sealed bid, compete to receive an award to perform services based solely upon price. Collier's BVO procedure seeks proposals from pre- qualified selected professionals to assist in the equitable distribution of individual projects based on a variety of qualitative components. While price is referenced as one of those components, price is actually a reference to the method and means required to complete the projects- because as noted above the rate of compensation is already fixed. The County's BVO policy does not focus primarily on price but rather seeks to find the most qualified for the job among qualified firms already under contract. Thus the requirements of the CCNA are preserved while at the same time promoting the public interest. This is also consistent with the longstanding principle in 287.055(4)(b), which expressly authorizes budget considerations as a factor in the selection process. See City of Jacksonville v. Reynolds, Smith & Hills, 424 So. 2d 63 (Fla. 1 sl 1982) Notwithstanding our belief that the BVO procedure is lawful, we contend that those consultants that have already performed work pursuant to Board approved contracts are entitled to payment under the theory of quantum meruit. Ouantum Meruit and Work Completed Under the BVO Florida has long recognized the liability of a county on quantum meruit for the value of work done and materials furnished to a county that receives benefits therefrom. See e.g., Harwell v. Hillsborough County, 111 Fla. 361, 149 So. 547 (1933); Moore v. Spanish River Land Co., 118 Fla. 549, 159 So. 673 (1935); Webb v. Hillsborough County, 128 Fla.471, 175 So. 874 (1937); Pinellas County v. Guarantee Abstract & Title Co., 184 So.2d 670 (Fla. 2nd DCA 1966)(citing, Marsh v. Bd Of Supervisors of Fulton County, 77 U.S. 676, 191. Ed. 1040 (1871), which states, "The obligation to do justice rests upon all persons, natural and artificial, and if a county obtained the money or property of others without authority, the law, independent of any Statute, will compel restitution or compensation."). 2 Clam Bay Subcommittee March 18, 2010 VIII-5 New Business 30f3 . The County's BVO policy has been in operation for nearly a year and various consultants have been previously paid without interruption up until recently. See Resolution No. 09-30 (Agenda Item 16El 0, February 10, 2009). The instant situation does not address a matter where a vendor is seeking reimbursement under a contract that is expressly prohibited by law. Because the county requested, received and benefited from the work provided from those consultants whose invoices are pending, the consultants also entitled to reimbursement under quantum meruit. The fact that the methodology utilized in selecting the vendors may be flawed does not make the payment for services performed pursuant to the work orders illegal. Suspension of County BVO Procedure We recognize that there is little point in our distributing work orders under the BVO procedure until you are comfortable with making payment to the selected vendors. Accordingly, the Purchasing Department has suspended the BVO procedure until the end of the Legislative Session, as the issue may be legislatively decided. Following the end of Session, we will reevaluate the matter. We will advise you beforehand should the County consider recommencing this procedure. Cc: Leo E. Ochs, Jr., County Manager Steve Carnell, Director, Purchasing/General Services 3 Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 10f7 , ,:..",i..,. '1% ',-- ~~~~: ...................~ ,''''~~ ".....:."'~ ~\ ATTORNEYS LEWIS LONGMAN & WALKER I P.A. A T !\ 'IV He/ping Shape Florida's Future" Reply To: West Palm Beach March 11,2010 Ms. Lainie Edwards Florida Department of Environmental Protection 5005 West Tennessee Street Building B Tallahassee, FL 32304 Re: DEP File No. 0296087-001-JC, Collier County Clam Pass Maintenance Dredging Dear Ms. Edwards: This firm represents Pelican Bay Foundation, Inc ("Foundation"). The Foundation is a Florida not-for-profit corporation that acts as a homeowners' association representing the interests of over 60 individual residential condominium and homeowners associations, comprising more than 6,500 households and numerous businesses within the Pelican Bay community. The Foundation and its members own substantial amounts of valuable real property that abut, adjoin and surround Clam Pass and Clam Bay. The Foundation is also a riparian owner ofland on both sides of Clam Pass. The Foundation holds a real property interest in the form of restrictive covenants of record (the "Covenants") which expressly restrict the activities of the applicant, Collier County, with respect to Clam Bay, Clam Pass and the surrounding area. The Covenants expressly protect the environmental quality and integrity of the Clam Bay system, and conserve the area as a valuable amenity for the use and enjoyment of a substantial number of the Foundation's members. As indicated below, the Covenants prohibit the applicant, Collier County, from conducting any dredging without the Foundation's express, prior written approval. The Foundation has a legal obligation to its members to enforce the Covenants and to preserve and protect Clam Bay and Clam Pass area for the benefit of its members. Helping Shape Florida's Future"' BRADENTON 1001 Third Avenue West Suite 670 Bradenton. Florida 34205 p 941.70B-4040 . f I 941-708-4024 JACKSONVILLE 245 Riverside Avenue Suite 150 Jacksonville. Florida 32202 pi 904.353.6410 . f 1904-353-7619 TALLAHASSEE 2600 Centennial Place Suite 100 Tallahassee. Florida 32308 p 850-222-5702 . f I 850-224-9242 WEST PALM BEACH 515 North Flagler Drive SUite 1500 West Palm Beach. Florida 33401 p f 561-640-0820 . f 1561-640-8202 www.llw-Iaw.com Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 2 of 7 Ms. Lainie Edwards March 11,2010 Page 2 The Foundation's governing documents provide that its general nature, purpose, and objects include enhancing the civic, social and recreational interests of its members and otherwise promoting the health, safety and general welfare of its members and their property. As such, the action being requested of DEP to permit dredging within Clam Pass and Clam Bay is within the Foundation's general scope of interest and activity. Attached as Exhibit 1 is a recorded copy of Disclaimer No. 22150 issued by the Trustees of the Internal Improvement Trust Fund in 1959 to Collier County's predecessor in title, disclaiming any state interest in potential sovereignty lands within the Clam Bay system. Accordingly, as of 1959 title to the Clam Bay system was vested in the then uplands owner. This area was ultimately conveyed to Coral Ridge - Collier Properties, Inc., the original developer of Pelican Bay and the Foundation's predecessor in title. Significant portions of the Clam Bay system were conveyed to Collier County in 1982 in connection with the PUD approval for Pelican Bay. This conveyance was subject to a number of conditions required by the PUD ordinance and expressed in the Quit Claim Deed (the "Deed") conveying the property to Collier County and in the Covenants to which the Quit Claim Deed was expressly made subject. Attached as Exhibit 2 you will find a copy of the Quit Claim Deed and the Declaration of Protective Covenants and Restrictions (as amended, the Covenants) encumbering the property. It is clear that pursuant to that conveyance to Collier County significant conservation restrictions were imposed on the Clam Bay system. Moreover, the grantor in that conveyance reserved significant oversight and approval rights to ensure that the conservation restrictions were faithfully observed. The Covenants have subsequently been amended. Attached as Exhibits 3 and 4, respectively, you will find an Amendment to Declaration of Protective Covenants and Restrictions (recorded at OR Book 4452, page 3954, public records of Collier County) (the "First Amendment") and a Second Amendment to Declaration of Protective Covenants and Restrictions (recorded at OR Book 4468, page 1475, public records of Collier County) (the Second Amendment"). The Deed established within the Clam Bay system a Conservation Area and a Park Site. Clam Pass is within the Conservation Area. With respect to the Conservation Area the Deed provides: CONSERVATION AREA: THE CONSERVATION AREA MAY ONLY BE USED FOR CONSERVATION PURPOSES, TO INCLUDE BUT NOT LIMITED TO SUCH PURPOSES AS CONSERVATION AND PROTECTION OF THE NATURAL RESOURCES, WILDLIFE DIVERSITY, SCENIC BEAUTY AND AESTHETIC VALUE OF THE AREA. NO BUILDING, STRUCTURE, Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 30f7 Ms. Lainie Edwards March 11,2010 Page 3 FACILITY OR OTHER IMPROVEMENT SHALL BE PLACED IN THE CONSERVATION AREA UNLESS IT IS PERMITIED BY DECLARATION OF RESTRICTIONS AND UNTIL GRANTOR HAS ISSUED ITS PRIOR WRITTEN APPROVAL. DECLARANT, MA Y IN ITS SOLE AND ABSOLUTE DISCRETION, REJECT PROPOSED STRUCTURES OR FACILITIES IN CONSERVATION AREA, REGARDLESS OF WHETHER SUCH STRUCTURE OR FACILITY IS A PERMITIED USE UNDER THE DECLARATION OF RESTRICTIONS. IF THE CONSERVATION AREA, OR ANY PORTION THEREOF, IS EVER USED IN VIOLATION OF THESE PROVISIONS, CONSERVATION AREA SHALL AUTOMATICALLY REVERT TO GRANTOR The reserved rights of the grantor under the Deed and the Covenants have been conveyed to the Foundation by assignment. Accordingly, the Foundation stands in the shoes of the grantor and exercises those same rights today. Among those reserved rights are the rights to approve improvements in the conservation area and dredging. As amended, the Declaration of Protective Covenants and Restrictions (recorded at OR Book 966, page 1843, Public Records of Collier County) provides: ARTICLE II GENERAL RESTRICTIONS 1. USE RESTRICTIONS b.) CONSERVATION AREA may only be used for conservation purposes, to include but not limited to such purposes as conservation and protection of the natural resources, wildlife diversity, scenic beauty and aesthetic value of the area. c.) No building, structure, facility or other improvement shall be placed in PARK SITE or CONSERVATION AREA unless it is permitted by the RESTRICTIONS and until DECLARANT [now the Foundation] has issued is prior, written approval. DECLARANT may, in its sole and absolute discretion, reject proposed structures or facilities in PARK SITE or CONSERVATION AREA, regardless of whether such structure or facility is a permitted use under the RESTRICTIONS. ARTICLE III Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 40f7 Ms. Lainie Edwards March 11, 2010 Page 4 GENERAL PROVISIONS 4. DECLARATION RUNS WITH THE LAND. The covenants, conditions, restrictions and other provisions under these COVENANTS shall run with the land and bind the property within PARK SITE and CONSERVATION AREA. It is DECLARANT'S intent, by these COVENANTS, to conserve and protect the natural resources and scenic beauty of PARK SITE and CONSERVATION AREA for the benefit of the present and future owners of the real property encwnbered herein. The purpose of these COVENANTS mandates, and it is DECLARANT'S intent in furtherance of this purpose, that these COVENANTS be perpetual. In the event that any portion of the PARK SITE or CONSER VA TION AREA is ever determined to be owned by a party other than the OWNER, the covenants, conditions, restrictions, and other provisions under these COVENANTS are nonetheless binding and shall continue to be binding as between DECLARANT and OWNER with respect to all of the PARK SITE and CONSERVATION AREA, including any such portion that may be determined to be owned by a party other than the OWNER, in order to ensure that DECLARANT has the opportunity to prevent, in its sole and absolute discretion, any adverse or harmful or other consequence objectionable to DECLARANT in its sole discretion with respect to the PARK SITE and CONSERVATION AREA, including those portions of the PARK SITE and CONSERVATION AREA owned by OWNER. 6. LEGISLATION. OWNER shall not apply for dredge or fill permits in PARK SITE or CONSERVATION AREA from any governmental bodies, regardless of any future amendments to the statutes or regulations of the United States or the State of Florida or as a result of decisions of the United States or the State of Florida, nor shall OWNER cause any dredge or filling activities to be commenced under any such permit, without the prior written consent of DECLARANT, which consent may be withheld in the sole and absolute discretion of DECLARANT. Accordingly, the Foundation is a necessary party in any permitting process for activities within the Clam Bay system, the PARK SITE or the CONSERVATION AREA, including specifically dredging activities. Please be advised that the Foundation has not approved the dredging activities in the Clam Pass dredging application submitted to DEP by Collier County. Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 50f7 Ms. Lainie Edwards March 11,2010 Page 5 As part of the 1982 conveyances which established the Clam Bay conservation area, the then Grantor reserved two parcels of land within Clam Bay for beach club facilities. Those parcels are owned today by the Foundation. One of those parcels is adjacent and riparian to Clam Pass, on both sides of Clam Pass, and thus to the Clam Pass dredging project. Accordingly, on this basis as well the Foundation is an affected party with respect to any of these proposed activities. The riparian ownership question is critical to this proposed project. In its application, in response to question 14, Collier County simply indicated "not applicable" in response to the requirement that it demonstrate satisfactory evidence of sufficient control and interest in the riparian upland property. As described above, the entirety of the Clam Bay/Clam Pass system, both upland and submerged lands, was conveyed to the County by the Foundation's predecessor in title. The Foundation reserved this parcel along Clam Pass and reserved rights to approve all development and dredging activities, including the act of applying for dredging permits. Collier County does not contest that the Covenants apply to the uplands, it simply suggests that the Covenants do not apply to activities in submerged lands, presumably on the basis that Collier County believes that such submerged lands are sovereign submerged lands. Attached as Exhibit 5 is a printout from the Collier County Property Appraiser's records depicting the Foundation's property at Clam Pass. As you can see, the parcel is bisected by the pass itself, indicating that the Foundation owns the riparian upland property on both sides of Clam Pass. Also enclosed as Exhibit 6 is another printout from the Collier County Property Appraiser's records showing parcels owned by the County which surround the Foundation's parcel. It is clear from the application that elements of the County's project, whether the active dredging itself, staging, dredge piping or disposal area are occurring on the upland property owned by the Foundation or by Collier County. As the covenants make clear (irrespective of your position on ownership of the submerged lands), the Foundation's approval is necessary to even prosecute the application with the Department. It is abundantly clear, therefore, that Collier County does not have sufficient control and interest in the riparian upland property to prosecute the current application. We continue to have concern over the lack of a demonstrated need for this project. When the project was first conceived and the application put together by the County, the stated purpose of the project was to provide beach compatible material for beach renournishment, as opposed to a demonstrated need to maintain flushing in the system for the benefit of the Clam Bay resources. Attached as Exhibit 7 is a copy of Question 33 and Collier County's Answer, from a signed but unsubmitted permit application, which clearly states that "The project is designed to nourish the beach of an eroded shoreline.....In addition to the borrow being a good source, the excavation of the old interior channel will improve the flushing within the Clam Pass ecosystem." In response to Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 60f7 Ms. Lainie Edwards March 11,2010 Page 6 criticisms about the intended purpose of the dredging, Collier County revised the application to reflect a putative need for increased flushing for Clam Bay resources. I do not believe that case has been made by the applicant. The monitoring reports prepared over time by Humiston & Moore do not suggest a need for dredging, especially to the depth and width proposed by the County, except in those rare cases when Clam Pass closes. Excavation of Clam Pass without any demonstrated need, and in particular over-excavation, will simply lead to greater erosional effects on both sides and not provide any significant benefit for flushing. DEP staff has also recognized that the pass has performed its flushing function better and longer when dredged to a smaller cross-section. Past efforts to dredge the pass wider and renourish the beach have proven unsuccessful due to accelerated erosion. We are also concerned that Collier County has plans for navigational dredging with the Clam Bay system, and that dredging of Clam Pass is part of that overall design. The DEP has previously denied a request for exemption from Collier County for the installation of red and green lateral navigational markers in Clam Bay, markers which the Foundation believes are intended as a precursor of navigational dredging in Clam Bay. Attached as Exhibit 8 is a copy of an email dated March 10, 2008, from J. Gary McAlpin, the Director of Coastal Zone Management of Collier County (and the person who signed this dredging permit application on behalf of Collier County) to Assistant County Attorney Colleen Greene. In this email.Mr. McAlpin asks Ms. Greene "Under what conditions, if any, can the county dredge Lower Clam Bay for navigation?" Mr. McAlpin's desire to see Clam Bay dredged for navigation even goes so far as to lead him to suggest that "could the City of Naples apply/petition the regulating authorities to dredge the area/channel for navigation since it is owned by the state? Would this solve the problem with the deed restrictions and Collier County?" Given Collier County's original statement that the purpose of the project is to nourish the beach of an eroded shoreline, rather than for mangrove flushing, and given the clear evidence that Collier County would like to dredge for navigation in Clam Bay, the Foundation does not believe that any dredging permit should entrust Collier County with the determination of whether or not dredging is required for the health of the mangroves in Clam Bay. The Foundation believes that the Foundation, as the riparian owner of land on both sides of Clam Pass, and as the party entrusted with the obligation to enforce the Covenants, should be the party to make the determination as to whether future dredging is required for the health of Clam Bay's mangroves. Given the Foundation's legitimate concerns about over-dredging and the recognized erosional effects, the applicant should be required to develop a detailed Mitigation Plan, based upon reasonably expected or predicted geo-morphological changes in shoals, shorelines and other Clam Bay Subcommittee March 18, 2010 VIII-6 New Business 7 of 7 Ms. Lainie Edwards March 11,2010 Page 7 features. The Foundation is likely to experience significant adverse effects on both sides of Clam Pass as a result of the project as proposed. A permit specific Mitigation Plan would address remediation necessary to address project related impacts to Foundation properties and infrastructure abutting the proposed activity. A financial guarantee should be required to ensure Plan implementation by the applicant. We also analyzed the details for the prosecution of the work involved in this project. Both the Department and the applicant have recognized that there is a considerable quantity of unsuitable non-beach compatible material to be dredged. Collier County has said, simplistically, that if high silt content material is found "the contractor will remove and truck unacceptable material to the landfill." As you can see from the photographs and from the plans submitted, there is little suitable space to stage and prosecute that work as the beach is both relatively narrow and far removed from any suitable upland site for building a basin for and dewatering high silt content material. Access to the beach site is provided by a long boardwalk. This is not realistic. As a practical matter, by the time unsuitable material is identified during the dredging process, it will have already been dispersed on the beach. This is not acceptable. The Foundation wishes to be placed on the Department's notice list for this application and to be apprised of activity involving the applicant. That notice can be provided to the undersigned. In the meantime, if you have any questions or if I may be of any assistance, please do not hesitate to call me. RPD/lb Enclosures cc: Steve Feldhaus, Esquire (w/enclosures) Rich Yovanovich, Esquire (w/enclosures) Mr. Erik Olsen (w/enclosures) Clam Bay Subcommittee March 18 2010 VIII-7 New Business ' 1 of 1 @t~eneCOUeen\ - From: Sent: To: Subject: McAlpinGary Monday, March 10, 2008 12:50 PM GreeneColleen;ashtoo_h Request for legal opinion - Dredging ofDlam Bay for Navigation Under what conditions if any, can the county dredge Lower Clam Bay f r navigation? Discussion: . Quick claim deed dated 4/13/1982 and recorded in OR Bbok 966 page 1841 grants Collier County 0 nership ot property subject to restrictions listed in schedule A. Page 5 of schedule A, general provisions, seetio 6 dlscUS5~S dredging as follows: ' < . o. wne.r s. hall not apply ~or dredge or f!H permits in Park or Conserv<l;tion ~reasre~ardle.ss O...ff.lJtut a.mendme~ts to the statutes or regulations of the United States or the State of Flondawllhout prior wnttencons nlof the declarent. ;-"--. . USAGE permit dated Nov. 18,1981 and recorded in OR B 966 a e 1824 on pag 1826' peeial Conditions states no dredging allowed except to maintain openings 0 u f of Mexico.' . Clam Pass ManagementPlan interim report 1 dated July 1995 prepared by Terrell for PBSDindicates in the~; PUbli.C Inte.rest an.. d .Use. s. e.ction that the. inleti.S presently maintai.n. ed for tidal flushing and "otfor.". avigational........ ... purposes and that public use of the inlet has been limited for boating and . onsid d as being 09n- navigable. This is in conflict with the permit which indicates that it is navigational w~terway: t . Seagate has argued that the water areas of the estuaries are owned by thee restrictive ( covenants in the deed cannot stop or limit us from doing something that is not owned by the riginal upland prOP$rty or controlled by them. In effect,how can the control sc;>mething that is not owned by them? or ae they controlling o~r actions by not having Us apply for dredging permits? . II . If so, could the Gity of Naples apply/petition the regulating authorities to dredge the area/chan. . el for navigation sinca it is owned by the state? Would this solve the problem with the deed restrictions arid Gollier Go ty? J. Gary McAlpin, Director Coastal Zone Management 3300 Santa Barbara Blvd. Naples, Florida 34116 GarvMcAlpin@colliereov .net (239) 530-5342 Fax.: (239) 353.4061 / .. C crnArrYI oWYle,.r~j,Ue o.{' wCl1 ,ecth-Yl *" -fa krL ~plo+kd II bu CL ~Url./~(jOV _ rY\CU-:1 V\.Wi J ---rtl5 ;itka kJ.ee1l ~ . . . 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