CAC Backup 11/09/2012 CAC
MEETING
BACKUP
DOCUMENTS
NOVEMBER 8, 2012
Meeting Agenda and Notice
COASTAL ADVISORY COMMITTEE (CAC)
THURSDAY, November 8,2012 - 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
• 2012 CAC MEETING DATES
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. October 11, 2012
VII. Staff Reports
1. Expanded Revenue Report
2. Emergency Beach Renourishment Naples and Vanderbilt Beach Status
3. Marco South Project Status
4. Wiggins Pass Project Status
VIII.New Business
1. Clam Pass Permit update and Data Gathering Proposal
a. Clam Pass Channel Improvements&Peer Review Services
2. Bird Monitoring Requirements
3. Legal Consulting Services for FEMA
* Attachment No. 1 FEMA Retention Agreement Proposal
* Attachment No. 2 Earnest B. Abbott Resume
* Attachment No. 3 FEMA Law Associates Stafford Act Experience
* Attachment No. 4 Letter dated 10-30-12 from Mr. Abbott
IX. Old Business
1.Coastal Advisory Committee, Management of Beach Renourishment letter dated
10/26/2012 and as directed by the CAC
X.Announcements
XI. Committee Member Discussion
XII.Next Meeting Date/Location
December 13, 2012 Government Center, 3rd Floor
XIII. Adjournment
4 a
T
in (D
0) Q
t/1 Z obi
u' O
3
O
A 2r
S0) k. -a s' A
Qv• K A
O
to oo :, m
*° p�q O
v
el
0
O
r "-Pi" fD
.-+
-s
T
v+ A
cu
v . tD
in. -'
V r° -1 Z O
< -h
c - � o.
O vvi N mg
o
rr
3 u.' N O
"It CO CU
O -+
rF •V VI
O o . O
a 0oo
,<'
m
T
(o
a.
(0
tn•
J4 Z
t
d
O O
O 7
00 d
O � -0m vspxi
o O
d -n N
a° •;,' (�D O a
D a to
O V T W O
n W N 3
00 3 O al
iA■ ((0 - •O Om
O C. N a
O
1—> D' \ j
lip pj .7r
0 0 0 0 0 0 0 0 0
co V co
2
N
0
I-6
I.-
Z
N
0
Ir
r
Q o •
N ■
:0/(i
Oq 0
7, r
t
c
•
a
z
NJ
o S in A
N '71 O
T
C fp
CI. N O
CU
N N Q n'.4
r-* CD
r oN r :1) •
N N ?
Ti -IC (
co �D
- D ■
..
m o 1 _ <
r ■HN
-DO 0 • D
°' N "( C
C., M
iri O.
r=e .
N
N r
•
Q. F-,
N
C
N S
O
r
N
D
IQ r.
N . in 4
S .
r
N 4
A
N • t/
0
n
i 1
1
O M Vy O o 0 0 0 0 0 0 o o N 0 0 ... .Wi.
.O ��. S ti O o 0 0 0 0 0 0 0 0 0 o ^: O o
0 _
C m t d
C d
0 0
6
m W W In .c IS .n o a
n r, M M In III Q l0 Q
I e
0000000000
C-- L 0
N---- u >.
o.
�. M Q M N N W M N N N H M
0 0 0 0 o O 0 0 0 o m a o .. Q
'00 o d E 6 6 6 6 6 0 0 6 6 6 0 coo o.
o: 0. =
= o0....
0 3, 8 u ¢
m n W U1 M O Ul VI O Vl
'.J C d W m m m m VI w Q Q
Q ; 006666 .4666
8 -
NN
L o .N-. O� Wo O .~•. 0 0 0 .N•. to
L 0 0 0 0 0 0 0 0 0 0 0
a a, 2
an ;, > 2`
3
u
M ▪ o 0 0 o m
o+ .n 00000000000
al
d a A
3 `
n E
IS U
•N Q Q Q Q ul m uI Q I, N d
Z.
.-1 .-I N 0 1-1 N 0 0 rv0 0 w c
ry ` ry \N tO
v E C m nN m nNmQ
.-. -. N . .u A 0 m i N C \0 0■
rv . .. .. ... Q m 00 Y f .
0
0 .. 0
p po I
.NA N H O n Vl tO O O lQ0 V 8r W O
.0
0 ° mmoo v' � °0 oo In n ° °p
d a m O O m .. O 0 T a E
popp ppop L
0 O Ol N O, O N O, . 0 0 0 0 .O. u O
O a1.
E v Q in V N m N Q N N N n` E 5 =
4 I, — c
. E 0
E d y
- H 2 -
3
0
8m88P88888 s s d g � ° g ggggg g a
,. .n M N . O W 0 M o; d GO tr N'O n D O Otd n « 2 d+ A 0 n o O MO N po p
L C .p O ^i O O Q
C
O d a
.. O tp Yl VI O V1 O V1 Vt Vl n d
N ry 4 LL
A .n vl Q ry M N Q N ry ry E
w in d O U
pI. pp p ipn c'_ E t o
00000000000 0 0 0 0 0 0 0 0 0 0 VW1 M M. ppQ. a C 0 y 5 d
d
85. 5. 8888888 $ en COO CO .•0.• A .. 04
O o 0 0 0 O 0 0 0 G 0 d n n N N O 0
> oo n o 00 ^Ni 00 0 00 0 00 `en - NON a N E _> m E
O t0 V1 V1 O v.O Vt VI'VI.p IC 1p t0"N a N
a ul T Q N M N Q N N N m CO T Q� N N ` n 8 44. d j y O J
a
u w O
h N ,N WI. N V
C N .0
Q o t o o Q d o 0 ¢ E % Q 3 a _o
ry c Z c Z c c Z o c c Z 0 ' E z N m o Ta
v d 8 O OG 0 0 '� E N m d . o
ti O
W a 01 0` 9 A E v M.
G ` « e9,
n
d C N C N M C M m M C O 70 « .
00 000 ON00 0 t Qjp d u Q E
A C N C N\ C `` G 0 U
_r 0 N r O M N M G G G c Y d m
Y F N \\ V E.c O .A a ; 2
U
■ Q e VI N edp U
m E 0 2
c y = 9 O u
N O N N N —
N N N N N N E E O E ▪ d d
J N N N N N N N N N V n 9 C C W n ea
d \ \\\■\ O O n, >
G Q OL A ■r. N mT
M M N \M N N N .. ..U CI Q S wo as 1,77 n w N tJ a > : 9 i 9n c io
d Y W Q C O O Y O M T — O C .0 > Q
ct.Vl N m T .. M n VVl 9 T Q 9 G u > G ri O
O 7 N m .m. .T. .m. .M. .. m •'• .. O O c -5 t It d
LI Of m m m m M m en T M 0 0 A m O. G! `. '
I;
0
.0 .0 c, 0 d v 0 .o
0 N C 0. d d u
d 4 '' 3 3 d E -d ° n
C
E E ' ° 3 c 2
E .9 A LL 0 d 2
N 0 2 2 c a -A t
c c i °u u o ;� d 0, W
d a t'+ o 'w E « d 5 Q A °a "- N u• ° v 3
0 0 p € 3 9 ` Y 9'
cea
U Z z 2 o O m 0 > > 4`. u0 °� ry > A
e f. `v v v E 0 v w E r ¢ ¢
¢ °�,P ,C ,C N a W c IV 10
•-'
9 u,:r .4 u 9 F !� o E 'yb a c E .
o FW W W0 22Tm r. � � ;o 3 3 ,.• u 4 0 Y
U m M LL LL " LL LL LL LL u = o o o LL
LL w r u r r a m u o w l7
i
r-
1
■
;--.0 kr) , E 17:/ .
O
C
a
,
r
Pi .., . ., 4 W
m
-
1,1
, it *It , . ,,,,,,,. _ ,ro ,... — ' I* . ,
a
F
t
6
q',
CD C7
al
O
U
CAC,.
OW/c/o i
June 18, 2011
Ms. Linda Elligott
Jacksonville District
Army Corps of Engineers
1520 Royal Palm Square Blvd. — Suite 310
Fort Myers, FL 33919
Re: Public Notice of May 13, 2011, SAJ-1996-02789(IP-LAE)(Clam Pass Dredging)
Dear Ms. Elligott:
In my judgment the requested permit may not be issued at this time as proposed. Evidence has
not been furnished for public comment to meet various compulsory compliance requirements of
federal permit rules both for substance of analysis and for public comment opportunities.
Having said that, there does appear to be a clear public interest to approve some course of action
consistent with the primary objective of the proposal, i.e., to conserve the environment in Clam
Bay and the surrounding mangrove forest. This public interest in conserving Clam Bay and the
associated mangrove forest has previously been examined and approved in the 1981 Corps
permit to build Pelican Bay and the 1998 permit to implement the Clam Bay Restoration and
Management Plan (CBRMP).
With an interim course of action in place to continue conservation efforts, the appropriate
information to evaluate the current permit request can be documented and an opportunity for
public comment provided that would meet all the federal criteria and procedures for a decision
on the pending request
The primary constraint on the decision process at this time is that there is no consensus on the
appropriate cross-section and volume of dredging to achieve the objective of resource
conservation. In the absence of such a consensus, federal regulatory rules require an explicit
examination of reasonable alternatives to the proposed course of action, an opportunity for public
comment on the alternatives, and selection of the least environmentally damaging practicable
alternative.
I trust this evaluation will show that allowing the 1998 federally authorized dredging template at
Clam Pass, 4 feet deep and 40 feet wide, would be in the public interest at this time as an interim
or, if needed, emergency measure and that evaluation of the expanded template as requested in
the pending application could be considered for action once substantive and procedural steps of
the federal regulatory process are met.
My comments are based essentially on three major areas of compliance requirements in Corps
regulatory decisions: The National Environmental Policy Act (NEPA), the Clean Water Act
(CWA), and Title 33, Code of Federal Regulations, parts 320, et. seq. (Corps permit regulations).
,Se V;ces
'il« 1
I am certain you know all of these requirements and 1 do not presume to tell you how to conduct
you review of this application. I include them here simply to frame my comments in the context
of the standard federal permit requirements and to assist others not familiar with the federal
regulatory process to whom I am sending copies of these comments.
These three areas of the federal rules, among others, address requirements for evaluation of
alternatives and include provisions for public involvement in one form or another.
First, it is critical to the identification and evaluation of alternatives and to generate relevant
public comment to have a clear statement of need and purpose for the proposal. One of the great
difficulties in commenting on this application is the variation in descriptions of the project need
and purpose over time. This clarity is critical in commenting because of its relationship to
development of reasonable alternatives. The 1981 permit to develop Pelican Bay was based on a
project purpose of and well established need for conservation of the resources in Clam Bay and
the surrounding mangrove forest. The 1998 permit for the Clam Bay Restoration and
Management Plan (CBRMP) provided a specific mechanism to meet both the purpose and need
for conservation expressed in the 1981 permit through the CBRMP.
It is not clear whether the current proposal is intended to be a continuation of the 1981 and 1998
purpose or some expanded purpose. The April 23, 2010, Corps public notice states the purpose
as maintenance dredging, beach re-nourishment, and ecological restoration. That purpose was
modified in the May 13, 2011, revised public notice to identify ecological restoration as the
"basic" purpose with added periodic maintenance and concurrent beach re-nourishment as
"overall- purposes.
Also making commenting difficult is the absence of any discussion of the need for the work to
go along with the expanded purposes. To clarify this concern, the "purpose" deals with what is to
be done, the "need" deals with why it should be done including the need for the physical extent
of the proposal. To add to the confusion over the purpose, i.e., the "what," there is no discussion
of"why" the purpose has been expanded to include beach re-nourishment and maintenance
dredging. Both purpose and need, what and why, are required elements of the decision and
critical to any analysis of alternatives to meet the various public interest decision criteria.
If the proposal is a continuation of the CBRMP authorized in the 1998 permit to restore degraded
mangroves, alternatives to achieve that objective would likely be quite different from alternatives
that would have to be considered to include beach re-nourishment and maintenance dredging as
additional project purposes. Since no alternatives for any of the expressed purposes have been
discussed, it is not possible to make the determinations required by NEPA, CWA, or Corps
regulations.
Another concern with developing relevant comments is the misstatement of the federal decision
criteria in the both the April 2010 and May 2011 public notices. In the last paragraph on page 4
of each public notice the description of decision criteria is a severely limited version of the actual
scope of federal decision criteria. The correct version is described on the unnumbered page
following page 4, signed by D. W. Kinard. Unfortunately, that "correct" version is substantively
Li;;riro,nn rric'.'
li;tc
18. 201
different from the shortened version on Page 4 such that the Corps cannot have confidence that
the public has had an appropriate opportunity to offer the full range of comments that address the
actual scope of the decision process rather than the abbreviated version stated on page 4.
As backdrop to my examination of the relevant rules, it is my understanding that dredging in the
1990's was more extensive than what was allowed in the 1998 permit for the Clam Bay
Restoration and Management Plan. Dredging done in 1999 and 2002 under that plan appears to
be within the scope of the 1998 permit. However, dredging done in 2007 appears to be much
more extensive than the 1999 and 2002 dredging.
if one constructs a time line, the following can be observed. When the larger dredging template
was used in the 1990's, the mangrove system appeared to be stressed, leading to the need for the
1998 CBRMP. When the smaller dredging template was used beginning in 1998, the mangrove
system was observed to recover well. The effects of the larger template dredged in 2007 are still
being assessed.
By all accounts, the mangrove system appears to be in good health. Whether there is a cause and
effect relationship between the dredging template and the health of the system has not been
established to the best of my knowledge. This reinforces the fundamental question of what is the
appropriate dredging template to approve at this time. This is a critical concept in applying the
federal regulations to the decision of whether to issue the permit as requested or take some other
appropriate action.
The following cites the specific relevant provisions of each of three federal rules and discusses
the implications for this permit application.
The National Environmental Policy Act.
The federal regulations for implementing the National Environmental Policy Act (NEPA) were
developed by Environmental Protection Agency. They are binding on federal agencies and
include numerous provisions for agencies to consider a range of alternatives in their decision
processes. See Sectionsl500.2, 1501.2, 1505. 1, and 1507.2 especially subsection (d).
The NEPA regulations also include numerous provisions for extensive public involvement. See
Sections 1500.1, 1500.2, 1500.4, 1501.4 especially subsection (e)(4), 1503.3, 1505. 1, and
1506.6.
Summarizing these various sections, all reasonable alternatives must be considered in federal
decision making and be made available for public review and comment. None of the documents
available to me discuss any alternatives for the current proposal. As noted above, there are at
least two clear alternatives that involve different dredging templates, a smaller template as
dredged in 1999 and 2002, a larger template as dredged in 2007, and perhaps there are other
reasonable templates. But there apparently has been no effort to identify a reasonable range of
alternative templates for conservation purposes or any other project purposes. Without the
explicit evaluation of both of these two alternatives, and perhaps others, an explicit comparison
of their relative effects and an opportunity for the public to comment on the comparisons,
compliance with NEPA requirements cannot be achieved.
l:'ean oniic�ruii f;errrces
17„h'1,C. 201 t
le, _
The Clean Water Act.
The Clean Water Act, Section 404(b)(I), requires the Environmental Protection Agency to
develop a set of guidelines which the Corps is required to use in reaching decisions regarding
discharges of dredged or fill material into waters of the United States. These are referred to as the
404(b)(1) Guidelines and are codified at Title 40 Code of Federal Regulations Part 230. They
require specific findings by the Corps on a number of factors as described in the following
discussion
Section 230.10. Restrictions on Discharges. "Although all requirements must be met, the
compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse
effects...."
Comment: Based on this provision, the seriousness of adverse effects must be evaluated. In this
case, the analysis would require explicit consideration of the appropriate cross-section, based on
an explicit evaluation of reasonable alternative cross-sections. Clam Bay and the mangrove
forest it contains are highly valued natural resources. The extent to which adding the purposes of
beach re-nourishment and maintenance dredging might change the analysis of potential serious
effects is not described in the public notice, and thus cannot be evaluated for comment.
Section 230.10(a). "... no discharge of dredged or fill material shall be permitted if there
is a practicable alternative to the proposed discharge which would have less adverse impact on
the aquatic ecosystem so long as the alternative does not have other significant adverse
environmental consequences."
Comment: No alternatives analysis has been provided. As noted above, the smaller cross-section.
4x40, appears to have worked well for conservation purposes, but the effects of the larger 5x80
cross-section are not well established. Given the level of uncertainty about effects of the larger
cross-section and what is know about the effects of the smaller cross-section, this provision of
the 404(b)(1) Guidelines would appear at this time to point in the direction of selecting the
smaller 4x40 cross-section in order to comply with the CWA.
Section 230.11 contains a series of factual determinations required to demonstrate
compliance with the 404(b)(1) Guidelines.
Comment: Because there is a rather significant difference of view as to some of the facts
supporting the proposal, it would be helpful in formulating public comments prior to final Corps
action on the application to have a copy of the required documentation describing those factual
determinations.
Section 230.20, et. seq. These provisions describe potential impacts on the physical and
chemical characteristics of the aquatic ecosystem that must be considered in finding compliance
with the Guidelines, In the spirit and letter of Corps regulations, the CWA, and NEPA
regulations, it seems appropriate to document these potential impacts and other 404(b)(1)
analyses and provide them for public comment, along with specific references to support the
conclusions reached.
RICA Eng,;«iI,;;.i
Enruros ?emnl Serriccc
June 18,2111
Pint
Section 230.1(c). "...material...should not be discharged into the aquatic ecosystem
unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact
either individually or in combination with known and/or probable impacts of other activities
affecting ecosystems of concern."
Comment: This provision contains a rebuttable presumption that there will be adverse impacts
unless otherwise demonstrated. Clearly the risk of adverse effects of the proposed 5x80 dredging
template on the Clam Bay system have not been demonstrated whereas the effects of the 4x40
template, while not completely conclusive, appear to present a far less risk of adverse effects
than does the 5x80 template.
230.1(q). The term "practicable" means available and capable of being done after taking
into consideration cost, existing technology, and logistics in light of the overall project
purposes."
Comment: The lack of clarity of project purpose discussed earlier adds a great deal of difficulty
in evaluating the practicability of potential alternatives and limits the publics ability to develop
relevant comments. For example, if the project purpose is for conservation, the need for
developing practicable alternatives for beach nourishment would not be part of the decision
analysis. Placement of the dredged material to nourish the beach could be done as an incidental
convenience when dredging for conservation purposes. However, beach re-nourishment would
be part of the considerations of appropriate disposal options to achieve the conservation
objective rather than drive the decision as to when and how much to dredge for beach re-
nourishment purposes.
Conversely, if beach nourishment is a declared project purpose, the need for, type, and amount of
beach material would have to be considered as one purpose in a multi-purpose activity. This is
not say that that multiple purposes cannot be achieved simultaneously. It is to say that the public
interest evaluation process in a multi-purpose project is significantly different from a single
purpose project. The interaction of the multi-purpose aspects has not been described in the public
notice of the application. Any optimized multi-purpose approach must also be shown to be in
compliance with the Clean Water Act requirement for selecting the least environmentally
damaging practicable alternative.
Corps of Engineers Regulatory Program, Title 33 Code of Federal Regulations 320, et.seq.
Section 320.4
(a)(2) The following general criteria will be considered in the evaluation of every
application:
(i) The relative extent of the public and private need for the proposed structure or work:
(ii) Where there are unresolved conflicts as to resource use, the practicability of using
reasonable locations and methods to accomplish the objectives of the proposed structure or work;
and
%rrr�i9.'011
(iii) The extent and permanence of the beneficial and/or detrimental effects which the
proposed structure or work is likely to have on the public and private uses to which the area is
suited.
Comment: These provisions address the requirement for a comprehensive analysis of unresolved
conflicts as to resource use. In this instance there is little doubt that there are clearly unresolved
conflicts. These are the same considerations addressed in the discussion of NEPA and the CWA
above. The need has not been well described, especially for the maintenance dredging and beach
re-nourishment; there remain unresolved conflicts; and the extent and permanence of beneficial
and detrimental effects have not been described.
Section 325.1(d) requires a description of the location, purpose, and need for the work.
Comment: The purpose is not clearly defined as discussed above and the need is not addressed.
Section 325, Appendix B.
Par. 55. When the EA [Environmental Assessment] confirms that the impact of the
applicant's proposal is not significant and there are no "unresolved conflicts concerning
alternative uses of available resources" (section 102(2)(E) of NEPA), and the proposed activity is
a "water dependent" activity as defined in 40 CFR 230. 10(a)(3), the EA need not include a
discussion on alternatives. In a//other cases where the district engineer determines' that there
are unresolved conflicts concerning ahernaln'e uses of available resources (emphasis added),
the EA shall include a discussion of the reasonable alternatives which are to be considered by the
ultimate decision-maker.
Comment: This is guidance on when the Corps may omit an alternatives analysis in its review of
a permit application. It clearly does not apply in this case where the key issue is "unresolved
conflict" concerning the alternatives available to meet the purpose of conserving Clam Bay and
the mangrove resources involved.
This provision of Corps regulations echoes Section 102(2)(E) of the National Environmental
Policy Act which states, "study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts concerning alternative uses
of available resources." EPA included the same requirement in its NEPA implementation
regulations, "When the EA confirms that the impact of the applicant's proposal is not significant
and (emphasis added) there are no unresolved conflicts concerning alternative uses of available
resources,...the EA need not include a discussion of alternatives.
Additional issue.
There is one additional issue regarding a unified approach to managing the Clam Bay and
mangrove resources. The 1981 permit placed that responsibility with Collier County which in
turn placed the responsibility for conservation of the resources in a single agency. Collier County
now proposes to bifurcate responsibility between two agencies. Such bifurcation presents a risk
that the optimum plan for meeting the requirements of the 1981 permit might not be met.
G;r+.;;u;rrrre;arai Seri c',
01l
1 recognize it is not the business of the Corps of Engineers to tell a local community how to
organize itself to manage its resources, but it seems reasonable to conclude that bifurcated
responsibility for the resource could lead the different agencies involved to be working at cross
purposes. In my view this circumstance introduces a risk that the provisions of the 1981 permit
may not be achieved and the quality of the Clam Bay and mangrove system mi Ot be
compromised. 1 ask the Corps to review its public interest and compliance determinations from
the 1981. permit to address the national need to conserve the resource, and to condition any
permit to ensure that the original conservation purpose is maintained notwithstanding the
bifurcated management structure.
1 look forward to supplemental information consistent with the regulatory requirements
discussed above.
Sincerely,
Morgan R. Rees
5954 Pelican Bay Blvd. #221
Naples. FL 34108
e A
l:m it ninrrcn!c!!tier\.icu,
lone IN.201/