06/09/2011 Backup Documents
'CAC
MEETING
BACKUP
DOCUMENTS
JUNE 9, 2011
June 9, 2011
Meeting Agenda and Notice
COASTAL ADVISORY COMMITTEE (CAC)
THURSDAY, JUNE 9, 2011 - 1:00 P.M.
BOARD OF COUNTY COMMISSIONERS CHAMBERS
THIRD FLOOR, COLLIER COUNTY GOVERNMENT CENTER
3299 TAMIAMI TRAIL EAST, NAPLES
-Sunshine Law on Agenda Questions
-PUBLIC NOTICE
I. Call to Order
II.. Pledge of Allegiance
III. Roll Call
IV. Changes and Approval of Agenda
V. Public Comments
VI. Approval of CAC Minutes *
1. May 12. 2011
VII. Staff Reports
1. Expanded Revenue Report
2. Proiect Cost Report
VIII. New Business
1. Conceotual Design Uodate CP&E - Vanderbilt. Park Shore and Naples
Beaches
2. H&M - Inlets Annual Monitoring
3. Conceptual Design Update-Coastal Engineering-Marco South Beaches
IX. Old Business
x. Announcements
XI. Committee Member Discussion
XII. Next Meeting Date/Location
August 11, 2011 Government Center, 3rd Floor
XIII. Adjournment
*Any person in need of a verbatim record of the meeting may request a copy of the
recording from the C.ollier County Communications and Customer Relations
Department or, if televised, view the video online at www.colliergov.net
All interested parties are invited to attend, and to register to speak and to submit
their objections, if any, in writing, to the board prior to the meeting if applicable.
For more information, please contact Gail D. Hambright at (239) 252-2966.
If you are a person with a disability who needs any accommodation in order to
participate in this proceeding, you are entitled, at no cost to you, to the provision of
certain assistance. Please .contact the Collier County Facilities Management
Department located at 3301 East Tamiami Trail, Naples, FL 34112, (239) 252-8380.
Public comments will be limited to 3 minutes unless the Chairman grants
permission for additional time.
Collier County Ordinance No. 99-22 requires that all lobbyists shall, before
engaging in any lobbying activities (including, but not limited to, addressing the
Board of County Commissioners) before the Board of County Commissioners and its
advisory boards, register with the Clerk to the Board at the Board Minutes and
Records Department.
CltLfb~
~-q-" ~
McAlpinGary
From:
Sent:
To:
Ernest Wu [wu_e@yahoo.com]
Thursday, June 09, 2011 10:27 AM
apires@wpl-Legal.com; Jim Burke; Jim Burke; ewaynecarson@sbcglobal.net; McAlpinGary;
JmoreI2409@aol.com; murrp2h@aol.com; soreysan@comcast.net;
tforcht@cityofmarcoisland.com; vnrios@marcocable.com; Wayne Waldack; FialaDonna;
CoyleFred; HillerGeorgia; ColettaJim; OchsLeo; HenningTom
Clam Bay markers at today's CAC meeting
Vinyard-Bondi Itr 6-3-11.pdf; Clam%20Bay%20Kinard%20Ietter[1].doc
Subject:
Attachments:
Dear CAC and BCC members,
I encourage you to not endose a canoe trail marker system in Clam Bay and vote to remain with the previously approved
US Coast Guard red / green markers. My apologies for the late hour of this email but I only learned to this agenda item
today as it was not on the agenda late last night.
Attached is a letter send to the County, FDEP, and the FL Attorney General asking for an inquiry as to why the permit
requiring red/green markers have not been installed. In addition, I had a phone conversation with Theresa Hudson, head
of USACE Enforcement in Jacksonville, who will release a letter likely tomorrow. To quote her on a May 9 email "Our
position on the letter signed by Mr. Kinard has not changed." Mr. Kinard's letter is also attached for your reference.
Please do not compromise the safety of boaters who use Clam Bay. Please do not force the County to waste taxpayer
resources by fighting FDEP, the Attorney General, and USACE. Some have said if we just did the right thing years ago,
we wouldn't have this mess. I hope you agree.
For your reference, below is the string of emails I have had with USACE Enforcement. I have also had many more phone
conversations as well including one today.
Thanks,
Ernest Wu, M.D.
President, Seagate Property Owner's Association
Dear Ms. Hudson,
I wanted to follow up on our phone conversation two weeks ago about permit 1996-02789. I look forward to hearing or
seeing your email soon.
Thanks,
Ernest Wu...
--- On Mon, 5/16/11, Ernest Wu <wu_e@yahoo.com>wrote:
From: Ernest Wu <wu_e@yahoo.com>
Subject: Fw: Re: Clam Bay, UASCE permit #1996-02789
To: "Theresa SAJHudson" <Theresa.B.Hudson@usace.army.mil>
Date: Monday, May 16, 2011, 4:18 PM
Dear Ms. Hudson,
Thank you for talking with me last Friday, May 13. Per our conversation, I will be looking forward to first,
your email response to my questions and second, a formal letter addressing those same questions. You said the
letter would take less than two weeks to leave your desk but could take a long time be reviewed and cleared by
your legal department due to their backlog of cases. I will follow up with you in two weeks about the formal
letter and will watch my email for the email response. The County will discuss issues about this permit on June
14. My hope is that Collier County will comply with the USACE permit and not encur issues with
enforcement. I hope your letter will act as an "ounce of prevention and prevent a pound of cure."
By the way, I remember past letters were sent to various people in Collier County such as Leo Ochs, County
Manager; Jeffrey Klatzkow, County Attorney, and Gary McAlpin, Coasta Zone Management, in addition to
USACE in Fort Myers and Jacksonville. Please include me on the mailing list. My address is:
1
Ernest Wu
5194 Seahorse Ave.
Naples, FL 34103
Thanks,
Ernest Wu...
m On Wed, 5/11/11, Ernest Wu <wu_e@yahoo.com> wrote:
From: Ernest Wu <wu _ e@yahoo.com>
Subject: Re: Clam Bay, UASCE permit #1996-02789
To: "Theresa SAJHudson" <Theresa.B.Hudson@usace.army.mil>
Date: Wednesday, May 11,2011,9:37 AM
Dear Ms. Hudson,
I was wondering if you completed your investigation on this permit and if you were ready to issue a letter about
concerns of the permit? You mentioned you might have a family matter to attend to so I hope all is well with
your family.
Thanks,
Ernest Wu...
--- On Wed, 5/4/11, Hudson, Theresa SAJ <Theresa.B.Hudson@usace.army.mil>wrote:
From: Hudson, Theresa SAJ <Theresa.B.Hudson@usace.army.mil>
Subject: Re: Clam Bay, UASCE permit #1996-02789
To: wu _ e@yahoo.com
Date: Wednesday, May 4,2011, 10:26 AM
Mr. Wu,
lam meeting this week with folks that can fill me in on the background for your question. Our position on the letter
signed by Mr. Kinard has not changed. Are you available for a discussion on Friday?
Sincerely,
Theresa Hudson
From: Ernest Wu <wu_e@yahoo.com>
To: Hudson, Theresa SAJ
Sent: Tue May 03 22:39:24 2011
Subject: Clam Bay, UASCE permit #1996-02789
Dear Ms. Hudson,
Thank you for taking time out of your busy schedule to talk with me. I represent the Seagate neighborhood in Naples, Fl
Seagate is a multi-family neighborhood composed of several canals which boaters access the Gulf of Mexico by
traversing Clam Bay and Clam Pass. Seagate has had riparian rights to access the Gulf since it's formation in the 1950'~
In addition, Clam Bay and Clam Pass have been deemed "navigable waters of the United States" by both the US Army
Corp of Engineers (USACE) and US Coast Guard (USCG).
Our local government is currently considering installing non-navigational Florida Wildlife Commission (FWC) canoe trail
informational signs in place of USCG navigational channel markers. Members of my community who use this waterway
feel that this substitution jeopardizes boater safety and fails to keep motorized watercraft off sea grasses and confined
with the channel.
As you know, three previous letters from USACE (Donald Kinard, USACE Deputy Chief, Regulatory Division, March 2,
2009; and Susan Blass, USACE Chief, Fort Myers Section, May 25, 2009 and June 9, 2009) have been written stating
2
that USACE permit #1996-02789 is not in compliance because USCG navigational channel markers have not been
installed.
My specific questions are as follows:
1. Currently, there are no USCG navigational channel markers marking the main channel in Clam Bay. Do the
navigational markers remain a requirement of the permit and is the permit still out of compliance in accordance with
Special Condition 2?
2. Previous letters from Donald Kinard and Susan Blass have stated "the markers must meet US Coast Guard standards
for signs". The area being marked is for a navigational channel for motorized watercraft. My discussions with USCG
(specificallyJoe Embres in the Miami office) stated there is only one way to mark a navigational channel for motorized
watercraft and that is using the Lateral System published in "US Aids to Navigation System". Here in Naples, we refer to
these markers as simply "red-green" markers. FWC authorizes informational signs but is prohibited from authorizing
navigational markers. My question is does the current permit allow deleting USCG channel markers and replace them
with signs which do not meet USCG standard for navigational markers (in this case, FWC informational canoe trail
markers)?
3. Permit 1996-02789 was issued on August 11, 1998. Can fines be issued to the original permittee (which I believe to
be the Pelican Bay Services Division, a subsidiary of Collier County government) for being so long in non-compliance?
4. If the permit is truly going on 13 years in non-compliance, does this hinder Collier County government ability to get new
permits from USACE?
Is there a good time in the next few days that I could talk to you about these issues? I promise to be brief and respectful
of your time. You can reach me at any time at 239-821-9473 or email me. You have my full permission to fact check any
of my above statements. Last, it would be appreciated if you could write your final responses to the above questions in an
official signed letter as it will be shared with Collier County govenment.
Thanks,
Ernest Wu...
3
LAW OFFICES
OERTEL, FERNANDEZ, COLE & BRYANT,P..A.
TIMOTHY P. ATKINSON
JEFFREY BROWN
M. CHRISTOPHER BRYANT
C. ANTHONY CLEVELAND
TERRY COLE
SEGUNDO J. FERNANDEZ
PRESTON McLANE
ANGELA K. OERTEL
KENNETH G. OERTEL
TIMOTHY J. PERRY
301 SOUTH BRONOUGH STREET
SUITE 500
TALLAHASSEE, FLORIDA 3a301
MAILING ADDRESS:
POST OFFICE BOX I J 10
TALLAHASSEE. FLORIDA 3a302.1110
(850) sa 1-0700
FAX (8S0l 521-0720
www.ohfc.com
June 3, 2011
Mr. Herschel T. Vinyard Jr., Secretary
Department of Environmental Protection
3900 Commonwealth Boulevard M.S. 49
Tallahassee, Florida 32399
The Honorable Pam Bondi, Attorney General
Office of the Attorney General
The Capitol, PL-Ol
Tallahassee, Florida 32399-1050
Re: Notice of Violation for Potential Petition for Enforcement of Agency Action
Clam Bay Restoration and Long-Term Management
Dear Secretary Vinyard and Attorney General Bondi:
Pursuant to Section 120.69(1)(b), Florida Statutes, notice is hereby given of the violation
of permit conditions contained in Consolidated Joint Coastal Permit and Sovereign Submerged
Lands Authorized Number 0128463-001-JC, issued by the Florida Department of Environmental
Protection ("DEP") to Collier County-Pelican Bay Services Division on July 6, 1998. By copy
of this letter, we are also informing the permittee, Collier County, of the violation. We are also
copying DEP Deputy General Counsel Sandra Stockwell, who may have some prior familiarity
with this activity.
This notice IS gIven on behalf of the Seagate Property Owners' Association, Inc.,
("Seagate") and its members. Seagate is a Florida not-for-profit corporation whose members are
property owners or residents in the Seagate community, a single family residential development
in Collier County with frontage on and riparian access to Outer Clam Bay. Residents of the
Seagate neighborhood have navigational access through Outer Clam Bay and Clam Pass to the
Gulf of Mexico, and a substantial number of Seagate's members engage in boating in Outer
Clam Bay on a regular basis.
Herschel T. Vinyard, Jr. & Pam Bondi
June 3, 2011
Page 2 of4
DEP Permit
In 1998, DEP issued to Collier County, through the County's Pelican Bay Services
Division, a Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization,
Number 01 28463-001-JC. The permit document, without all of the lengthy attachments, is
attached to this letter as Exhibit "A."
As a part of the permit application process, the applicant submitted a Clam Bay
Restoration and Management Plan ("CBRMP"). The CBRMP represented a comprehensive
assessment of the Clam Bay system, including Clam Pass, and the interior tidal creeks and water
bodies that make up that estuary system, including Outer Clam Bay, Inner Clam Bay, and Upper
Clam Bay. The permit also addressed a number of other features and conditions affecting this
system, including the then - declining health of mangrove communities, the condition and
protection of seagrass beds, and the impacts of - upland stormwater runoff into the system.
Excerpts of the lengthy CBRMP are attached to this letter as Exhibit "B."
The CBRMP included at Section 3.3.2 a proposed recreational component. This section
of the CBRMP included the following representations and commitments by the permit applicant:
Appropriate notification, signage and policing will be provided by
the County or PBSD to ensure compliance. The signage will be
strategically placed both at the entrance to Clam Pass and in the
areas around the boat ramp located at the southern end of Outer
Clam Bay. These are intended to insure that persons accessing the
Clam Bay system are informed of its unique ecological
characteristics, the limitations of access resulting from variations
in water depth, the existence of no wake/idle speed requirements
for motorized boat operation and importantly, the necessity of
staying out of areas identified as having maturing seagrass beds
and potential manatee habitat. Precise locations and language to
be included in the signage will be determined in cooperation with
the agencies post permit issuance. Finally, the main channel will
be marked in accordance with the requirements imposed by the
United States Coast Guard to insure that those who use the system
clearly know where the channel is and the prohibitions against
operating their water craft outside the same.
(Emphasis added.) The DEP permit attached as Exhibit "A" expressly referenced and
incorporate the CBRMP. See, Page 2 of21 of the permit, which reads in part as follows:
Herschel T. Vinyard, Jr. & Pam Bondi
June 3, 2011
Page 3 of 4
The project is to conduct activities to improve the hydrodynamics
of, and thus restore and manage. the Clam Bay ecosystem by
conducting the activities in association with and specified by the
Clam Bay Restoration and Management Plan (CBRMP). which is
attached to and made part of this permit as Attachment "A". The
Permittee is authorized to implement the CBRMP as set forth
therein.
(Emphasis added.)
General Condition 1 of the permit states that "all activities authorized by this permit shall
be implemented as set forth in the plans, specifications, and attached drawing approved as part of
this permit, and all conditions and requirements of this permit." (Emphasis added.)
This permit was expressly "issued under the authority of Chapter 161 and Part IV of
Chapter 373, F.S." Section 373.430 declares, in pertinent part, that it is a violation of Part IV of
Chapter 373 "to violate or fail to comply with any rule, regulation, order, or permit issued by...
the department...." (Emphasis added.)
To date, Collier County has failed or refused to install navigation markers in the main
channel in Outer Clam Bay as required by the DEP permit. Similar requirements exist in a U.S.
Army Corps of Engineers Permit, Number 1996-02789, and the County has also failed or refused
to comply with that permit requirement.
According to DEP's website, the County has other permit applications pending at this
time that affect Clam Bay and the Clam Bay system. We have not reviewed those pending
applications and do not know if they relate to this deficiency. They include Joint Coastal Permit
application 296087-001 for Clam Pass Park, and "ERP Exemption Permit" application 295193-
002 for "Coastal Zone Management/Clam Bay/Pass."
We are aware that not all DEP personnel may agree with the underlying assertion that the
previously-issued Joint Coastal Permit required marking the navigational channel. However, our
reading of the CBRMP leads us to this conclusion inescapably, especially given the
comprehensive nature of that permit's treatment of this estuary system.
The purpose of this letter is to provide the Department, the Attorney General, and the
Permittee of notice of this violation of the permit conditions. Pursuant to Section 120.69(1)(b),
Florida Statutes, the Seagate Property Owners' Association, and potentially individual members
of that association, intend to file a Petition for Enforcement in the Circuit Court in and for Collier
County, if the Department does not file and diligently prosecute a Petition for Enforcement
within the 60 day time period.
Herschel T. Vinyard. Jr. & Pam Bondi
June 3. 2011
Page 4 of 4
We are confident that you share our concern for the permit holder's failure to comply
with the permit requirements. We trust the Department is prepared to initiate an appropriate
enforcement action to bring the project into compliance with the terms and conditions of its
permit. but we are truly hopeful that the permit holder will voluntarily comply and that an
enforcement will be unnecessary.
Please advise if we can provide you with any further information.
Sincerely,
!'lrz7
M. Christopher Bryant
KGO/MCB/am
Attachments
cc: Collier County-Pelican Bay Services Division
801 Laurel Oak Drive. Suite 605
Naples. Florida 34108
Sandra Stockwell. Deputy General Counsel
Florida Department of Environmental Protection
Division of State Lands
3900 Commonwealth Boulevard. MS 35
Tallahassee. Florida 32399
F:\MCBIJ551-1 Scagate Homeowners\Letters\Vinyard-Bondi-Collier ftr 6-3-ll.docx
DEPARTMENT OF THE ARMY
JACKSONVILLE DISTRICT CORPS OF ENGINEERS
P. O. BOX 4970
JACKSONVILLE, FLORIDA 32232-0019
REPLY TO
ATTENTION OF
March 2, 2009
Regulatory Division
Special Project/Enforcement Branch
Enforcement Section
199602789(IP-CC)
Collier County
Pelican Bay Services Division
801 Laurel Oak Drive, Suite 605
Naples, Florida 34108
Gentlemen:
This is in reference to Department of the Army permit number
199602789 issued to you on August 11, 1998. The permit
authorized replacement of Seagate Drive culverts, dredging of the
Clam Pass main channel for Cuts 1, 2, 3, and 4, and excavation
and maintenance of interior tidal creeks. The project is located
within Clam Bay and the Gulf of Mexico, in Sections 4, 5, 8, 9,
32, 33, Township 49 south, Range 25 east, Collier County,
Florida.
In accordance with Special Condition 2, the Permittee was to
comply with the components and timeframes specified within the
Clam Bay Restoration Management Plan. It has come to the U.S.
Army Corps of Engineers' (Corps) attention that the navigational
markers have not yet been installed. Installation of these
markers is indeed a requirement of the Department of the Army
permit. In addition, the markers must meet U.S. Coast Guard
standards for signs. It is requested you provide the Corps with
a drawing showing the placement of these markers and a time frame
when you expect the signs to be in place. This information can
be directed to Ms. Cynthia Ovdenk at our Ft. Myers Regulatory
Office at 1520 Royal Palm Square Boulevard, Suite 310, Fort
Myers, Florida 33919. Should you want to modify any of the
components of the Clam Bay Restoration Management Plan, please
directed your request to Ms. Susan Blass, Section Chief, at the
same address.
Sincerely,
~ ZJ.#-I:~~
Donald W. Kinard
Deputy Chief, Regulatory Division
Copy Furnished:
Mr. J. Gary McAlpin, Director, Coastal Zone Management,
3300 Santa Barbara Blvd., Naples, Florida 34116