Agenda 05/28/2013 Item #16D12 Proposed Agenda Changes
Board of County Commissioners Meeting
May 28, 2013
Withdraw Item 16B1: Recommendation that the Collier County Board of County Commissioners
(BCC),as the Community Redevelopment Agency(CRA),approve an amendment to the previously
approved Disaster Recovery Initiative(DRI)/Disaster Recovery Enhancement Funds (DREF)grant
agreement between the BCC and the CRA. (Staff's request)
Move Item 16D12 to 11F:
Recommendation that Collier County
no longer pursue wetland mitigation
credits at Pepper Ranch Preserve, but
continue to pursue grants for wetland
restoration and panther habitat mitigation
credits on the property. (Commissioner
Nance's request)
Withdraw Item 16K3: Recommendation for the Board of County Commissioners acting as the
Airport Authority to approve and authorize the County Attorney's Office to retain consulting and
expert witness services for the lawsuit captioned Quality Enterprises, USA, Inc. v Collier County
Airport Authority(Case No. 12-4345-CA)in compliance with Section VII H of the Purchasing Policy.
The estimated fiscal impact is approximately$38,105. (Staff's request)
W ..
5/28/2013 16.D.12.
EXECUTIVE SUMMARY
Recommendation that Collier County no longer pursue wetland mitigation credits at Pepper Ranch
Preserve, but continue to pursue grants for wetland restoration and panther habitat mitigation
credits on the property.
OBJECTIVE: To report status of staff efforts to permit a Wetland Mitigation Bank at Pepper Ranch
Preserve(PRP) and ask for Board of County Commission(Board) direction in how best to proceed. Staff
has provided a recommendation for the Board to consider.
CONSIDERATIONS: PRP was purchased for the Conservation Collier Program in February 2009. As
part of due diligence in the acquisition process, staff commissioned a Regional Offsite Mitigation Area
(ROMA)Feasibility Study to determine whether there was potential for the County to utilize the property
to receive mitigation credit in addition to garnering the benefits associated with the stated purpose of the
Conservation Collier Program: to acquire, protect and manage conservation lands for the benefit of
citizens. That feasibility study, submitted to staff by consultants Scheda Ecological Associates, Inc.
(Scheda) in June 2008, indicated there was opportunity to use the property for mitigation purposes. In
addition to commissioning the feasibility study, staff had positive conversations with the(then)U.S. Fish
and Wildlife review biologist (George Dennis) regarding potential panther habitat mitigation credits
(PHUs) available at PRP, and staff received a preliminary mitigation estimate from a member of County
staff who was familiar with mitigation (Kevin Dugan). The result was that staff communicated to the
Board on July 22, 2008 (Agenda Item I OE)that there was potential to obtain wetland, panther and wood
stork mitigation credits.
In March 2010, Conservation Collier staff contracted Scheda to permit a PRP ROMA. In February 2011,
Scheda staff learned of a 2008 federal mitigation rule changer and subsequently met with the Army Corps
of Engineers (ACOE) to review wetland mitigation options at PRP. Based on ACOE recommendations,
Scheda staff shifted their permitting focus from a ROMA to a Mitigation Bank. The rule change
established new requirements for federal mitigation, which included more stringent criteria for proposed
mitigation lands acquired through local government Conservation programs, like Conservation Collier.
In August 2011, staff became aware of an ACOE denial of a Lee County Conservation 20/20 Mitigation
Bank Prospectus, which was similar in scope to the PRP Mitigation Bank Prospectus. Staff spoke with
an ACOE mitigation bank review staff member at that time to try to determine whether Collier County
should continue to pursue a wetland mitigation bank at PRP in light of the Lee County Conservation
20/20 Mitigation Bank denial. Staff was told that no PRP Mitigation Bank determination could be made
until a Final Prospectus was submitted. Additionally, just prior to submission of the Final Prospectus,
staff contacted the ACOE to try to determine whether wetland credits would be granted for placement of a
Conservation Easement over the PRP. Staff was again told that no determination could be made until a
Final Prospectus was submitted.
In June 2012, a PRP Mitigation Bank Final Prospectus was submitted to ACOE.
In April 2013, the County received a formal PRP Mitigation Bank denial response from ACOE, attached
as exhibit.
The following actions could be enacted in response to the ACOE denial letter: through public support
and Board direction, the Pepper Ranch Preserve Land Management Plan and the Conservation Collier
Ordinance (2007-65) could be revised to restrict public recreation activities within the mitigation bank
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boundary; new restoration design plans could be commissioned to include both complete ditch and berm
hydrologic restoration and wetland creation in pastures; all cattle activities could be removed from the
preserve; and the funding mechanism portion of the prospectus could be revised to satisfy the ACOE's
concerns. However, assuming the PRP Mitigaiton Bank could be permitted with the above changes, it
would be impractical. To cover its costs, the Conservation Collier Program would need to charge more
for its resulting wetland mitigation credits than a private mitigation bank.
Under the revised federal mitigation rule, wetland credits from public conservation lands acquired
through local conservation programs, like Conservation Collier, can only be generated from land
management activities that are above and beyond planned activities. Because of this stipulation, ACOE
wetland credits cannot be generated at PRP for exotic plant treatment or prescribed fire -two of the main
activities necessary to restore PRP.
The only remaining land management activities that can generate credits at the preserve are restoration of
historic wetlands and creation of wetlands in historic uplands. Despite the extensive ditching and
berming present throughout the ranch, most of the historic wetlands on site are in relatively good
condition. Extensive hydrological designing and restoration would be very expensive and would not
result in the generation of enough wetland credits to justify the cost. Additionally, the ACOE considers
creation of wetlands in upland soils risky and difficult to do successfully; therefore, they grant very few
wetland credits for creation of wetlands. Creation of wetlands within PRP pastures that were historically
uplands would result in the generation of some additional wetland credits, but not enough to justify the
cost of their design and creation.
Finally, because the ACOE does not believe that there is a clear indication that PRP is under threat of
development, wetland credits cannot be received for the placement of a conservation easement over the
preserve. A PRP Mitigation Bank would have garnered a majority of its wetland credits from a
conservation easement. Without credits for a conservation easement, a PRP Mitigation Bank is just not
feasible.
Although pursuit of a PRP wetland mitigation bank may not be practical, panther habitat unit mitigation
credits can still be generated at the preserve through the creation of a US Fish and Wildlife Service
(USFWS) Conservation Bank. Staff had a pre-application meeting with USFWS staff on May 15, 2013,
to discuss the creation of a PRP Conservation Bank. The permitting process will be very similar to the
process staff has been following to permit the Caracara Prairie Preserve for panther habitat mitigation
credit. Staff can use existing information gathered through the drafting of the PRP Management Plan and
the PRP Mitigation Bank Prospectus to submit the documentation to USFWS for a PRP Conservation
Bank.
Additionally, in an attempt to recoup costs expended for the mitigation bank permitting process, staff can
use Scheda's wetland restoration design plans to apply for grants that will fund wetland restoration at
PRP and the Mitigation Bank Environmental Resource Permit (ERP) application can be modified for use
with any proposed wetland restoration without an additional application fee being paid to South Florida
Water Management District(SFWMD).
FISCAL IMPACT: A total of$116,000 has been expended from Conservation Collier Management
Fund 174 in pursuit of a PRP Mitigation Bank - $91,000 to Scheda for services associated with
completing permit applications for a mitigation bank and $25,000 for a SFWMD ERP mitigation bank
application fee.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
item.
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LEGAL CONSIDERATIONS: This item has been approved for form and legality, and requires
majority vote for Board approval. -JW
RECOMMENDATION: That Collier County no longer pursue wetland mitigation credits at Pepper
Ranch Preserve, but continue to pursue grants for wetland restoration and panther habitat mitigation
credits at Pepper Ranch Preserve.
Prepared By: Alexandra Sulecki,Principal Environmental Specialist,Parks and Recreation Department
Attachments: Letter
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.0.16.0.12.
Item Summary: Recommendation that Collier County no longer pursue wetland
mitigation credits at Pepper Ranch Preserve, but continue to pursue grants for wetland
restoration and panther habitat mitigation credits on the property.
Meeting Date: 5/28/2013
Prepared By
Name: BetancurNatali
Title: Operations Analys,Parks&Rec-NCRP Admin
5/1/2013 10:30:27 AM
Submitted by
Title:Environmental Specialist, Senior,Facilities Manage
Name: SuleckiAlexandra
5/1/2013 10:30:29 AM
Approved By
Name: WilliamsBarry
Title: Director-Parks &Recreation,Parks &Recreation
Date: 5/7/2013 9:35:21 AM
Name: AlonsoHailey
Title: Operations Analyst,Public Service Division
Date: 5/9/2013 2:13:17 PM
Name: WrightJeff
Title:Assistant County Attorney,County Attorney
Date: 5/14/2013 10:30:10 AM
Name: CarnellSteve
Title: Director-Purchasing/General Services,Purchasing
Date: 5/14/2013 3:52:48 PM
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Name: KlatzkowJeff
Title: County Attorney
Date: 5/16/2013 3:31:49 PM
Name: FinnEd
Title: Senior Budget Analyst, OMB
Date: 5/20/2013 12:34:31 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 5/20/2013 1:19:46 PM
Name: OchsLeo
Title: County Manager
Date: 5/20/2013 6:46:57 PM
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,f
tY: DEPARTMENT OF THE ARMY
JACKSONVILLE DISTRICT CORPS OF ENGINEERS
p ti II Lt n P.O.BOX 4970
•4 JACKSONVILLE,FLORIDA 32232-0019
REPLY TO
ATTENTION OF April 11,2013
Regulatory Division
Special Projects and Enforcement Section
SAJ-2011-00434-VG
Collier County Board of County Commissioners
Attn. Melissa Henning
3299 Tamiami Trail East, Suite 303
Naples, Florida 341 12-5746
Dear Ms. Henning:
Reference is made to the Prospectus submitted on your behalf by Scheda Ecological
Associates, Inc. for the proposed establishment of Pepper Ranch Mitigation Bank(PRMB). The
proposed PRMB is located within the premises of Pepper Ranch Preserve (PRP), in
wetlands/waters that are contiguous to Lake Trafford, west of the town Immokalee, Collier
County, Florida. More specifically, the 886-acre parcel is located in Sections 22, 26, 27, 28, 33,
and 35, Township 46 South, and Range 28 East. The application has been assigned number
SAJ-2011-00434-VG.
The establishment of PRMB at PRP consists of: (1) management of exotic-nuisance
vegetation; (2) establishment of 11.89 acres of wetlands through grading, elevation contouring,
and native species planting; (3) water quality improvements through installation of a ditch block
within the main outflow ditch from Pepper Ranch into Lake Trafford; (4) implementation of a
prescribed fire program; and (5)permanent protection of the site by recording a conservation
easement over the proposed mitigation bank area. The project site consists of two independent
parcels, both located within the boundaries of PRP. The easternmost parcel totals 700.8 acres,
out of which approximately 30% is classified as wetlands. The westernmost parcel totals 185.6
acres and is dominated by uplands.
The PRP was acquired in 2009 by the Conservation Collier Program(CCP), a taxpayer-funded
conservation land acquisition program. The CCP manages these lands under the authority
granted by the Collier Conservation Ordinance 2002-63 as amended(2007-65). Currently, the
management activities at PRP are undertaken pursuant to the specifications of the Final Pepper
Ranch Preserve Land Management Plan (PRPLMP) approved in 2011. Some of the management
activities specified on the PRPLMP include: invasive plant and animal management,prescribed
fire plan,managed public access preparation, and site security measures.
The U.S. Army Corps of Engineers (Corps), in coordination with members of the Interagency
Review Team (IRT), which includes representatives from the U.S. Environmental Protection
Agency (EPA), and U.S. Fish and Wildlife Service(USFWS), has thoroughly reviewed your
proposal and offer the following comments/concerns:
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Our regulations at 33 CFR 332 (hereafter the Rule), more specifically, 33 CFR 332.3, do not
preclude the approval of mitigation banks on public lands,provided the project meets the
following two criteria: 1) use and management of the public site must be consistent with
proposed mitigation goals and objectives; and 2) credit generation along subject areas should be
based solely on aquatic resource functions provided by the project, over and above those
provided by public programs already planned or in place. The IRT believes that none of the two
criteria are met.
First, the IRT renders questionable the compatibility of existing use and management activities
with the intent and purposes of the mitigation banking activities. Mitigation banks are
established for a specific purpose and intent and any other production or principle use cannot
jeopardize the objectives and function of the site (33 CFR 332.7(a)(2)). As stated above, some
of the uses/management activities approved for the PRPLMP include hiking, horse-back riding,
hunting,bird watching, mountain biking, camping, among others. Also, cattle grazing is an
allowable use within the site. These activities, if not restricted, could potentially jeopardize the
objectives and long-term sustainability of a mitigation banking program. Therefore, applicants
must provide reasonable assurance that all the uses (including public use) and management
activities conducted on mitigation bank projects will not jeopardize the bank's long-term
sustainability and its ability to generate credits. It's not clear that the allowable activities/public
uses discussed above provide the required assurances. Furthermore, it is unclear that restriction
of the above-mentioned uses for the purpose of establishing a bank at PRP will be consistent
with its implementing ordinance and land management plan. Both the implementing ordinance
and PRPLMP confine its use to public recreation, among other uses. In light of these
considerations,the IRT renders questionable the applicant's ability to install a management plan
conducive to the ecological success at a mitigation bank that is not in conflict with uses
mandated by the ordinance and current PRPLMP.
Furthermore, the IRT does not believe that the proposed PRMB meets the second criteria for
projects located on public lands, which requires that credit generation be based solely on aquatic
resource functions provided by the project, over and above those provided by public programs
already planned or in place. According to the information provided in the prospectus and
supplemental information submitted thereof, the activities already specified under the PRPLMP
include invasive plant and animal management, prescribed fire program,public access
preparation, and site security measures. Therefore, the only proposed activities over and above
the ones specified on the PRPLMP that could potentially generate any ecological lift are: water
quality improvements through the installation of one low water crossing, establishment of 11.89
acres of wetlands, and the permanent protection of the site by recording a conservation easement.
We believe that the proposed credit generating activities will result in very limited ecological lift,
if any. While the IRT agrees that the proposed PRMB contributes to a regionally integrated
ecological corridor as evidenced by the project's adjacency to large conservation lands, it's not
clear that the credit generating activities proposed in the area designated for the PRMB would
share that same regional significance. The prospectus cites a letter from the Director of the Big
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Cypress Basin to the County sustaining the importance of PRP in providing improved water
quality and quantity of a local drinking water source. Specifically, the letter states"if the
agricultural water use of the ranch is eliminated, and the irrigation and perimeter ditches are
removed, there will be more water to recharge the Water Table and lower Tamiami Aquifers".
Moreover, the area proposed for PRMB is traversed by ditches and berms that appear to have
significantly impacted the hydrology of the site. However, the proposed work (installation of a
ditch block and establishment of 11.89 of herbaceous wetlands) does not appear to be focused on
addressing the current site's overall restoration needs. The establishment of 11.89 acres of
wetlands and installation of a ditch block does not seem to contribute to enhance the degraded
conditions to onsite wetlands described above. The proposed establishment area is located
along the project boundary, surrounded by upland areas, some of which will continue to be
utilized for cattle ranching operations, and immediately adjacent to areas dominated by Bahia
grass, Brazilian pepper, and other undesirable species. Therefore, the ecological benefits and
resource functions to be attributed to this specific mitigation effort seem to be negligible.
Based on the above-described circumstances,the only potential source for credit generation
will be based on the preservation value resulting from the conveyance of a conservation
easement. The westernmost parcel is entirely dominated by uplands (with some infestation of
nuisance species), therefore, is not a candidate for preservation. Regarding preservation of the
easternmost parcel,please note that Section 332.3(h) of the Rule establishes five key criteria
which must all be satisfied in order to meet the requirements for the use of preservation to
provide compensatory mitigation: "(i) The resources to be preserved provide important physical,
chemical, or biological functions for the watershed; (ii) The resources to be preserved contribute
significantly to the ecological sustainability of the watershed. In determining the contribution of
those resources to the ecological sustainability of the watershed, the district engineer must use
appropriate quantitative assessment tools, where available; (iii) Preservation is determined by the
district engineer to be appropriate and practicable; (iv)The resources are under threat of
destruction or adverse modifications; and(v) The preserved site will be permanently protected
through an appropriate real estate or other legal instrument(e.g., easement, title transfer to state
resource agency or land trust)." Out of these criteria, the IRT believes that(iv) is not met.
The PPR is already set aside for preservation by public ordinance. Pursuant to the
Conservation Collier Ordinance (2007-65, Section 2), the main objective of Conservation Collier
is to"acquire,preserve, restore, and maintain vital and significant threatened natural lands,
forest, upland and wetland communities located in Collier County". This ordinance carries with
it a mandate that the property be maintained and used for conservation purposes and other
compatible public outdoor recreational activities. The IRT is not aware of the presence of any
threat of destruction or adverse modification. When determining the potential presence of a
threat the IRT gives consideration to a series of factors that could result in wetland habitat
degradation from anthropogenic activities not otherwise expected should the area be set aside for
preservation. The information available does not provide a clear indication that the area is under
threat of development.
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In addition to the issues discussed above, the IRT is concerned that the current uses
surrounding the proposed PRMB will likely affect the perpetual viability of the mitigation bank
due to unsuitable land uses. Mitigation banks must be strategically located,planned, and
designed to be self-sustaining over time. The Corps and the IRT must carefully consider
ecological suitability, ecological sustainability, and land use compatibility when determining if a
proposed site is an appropriate location for a bank. In regard,the IRT also has concerns that the land
use activities in the areas adjacent to the proposed bank(but within the PRP), including cattle
activities will increase the likelihood of continuing water quality impacts to the proposed bank site.
These activities could result in additional discharge of sediment, nutrients, and contaminants into the
restored/enhanced areas and potentially detract from the intended objectives of the proposed PRMB
on water quality improvements to Lake Trafford. If cattle ranching is completely removed from the
proposed PRMB,these activities will continue to occur along significant portions of the PRP.
Again, one of the goals of establishing mitigation banks is to provide significant ecological
benefits for the watershed that are sustainable over time. It's not clear that the proposed PRMB
will be able to meet this goal.
Finally, the IRT has concerns with the proposed financial assurance mechanism and with the
availability funding required to undertake this endeavor. According to the information contained
in the prospectus, all the proceeds from the sale of mitigation credits will be utilized to fund all
aspects of establishing and managing the PRMB. We believe that the proposed funding
mechanism does not provide any assurance that the work will be successfully completed, as
funding will depend on credit sales.
In consideration of the above, the Corps, in coordination with the IRT, has determined that
approval cannot be given to proceed with the development of the draft mitigation banking
instrument. We regret that the determination is unfavorable regarding utilization of this land as a
mitigation bank. Please be advised that as of the date of this letter,the Corps has ended its
review of PRMB and your request has been withdrawn.
If you have any questions, please contact Mrs. Vivian Gerena by electronic mail at
Vivian.gerena @usace.army.mil, at the letterhead address, or by telephone at 904-232-2209.
Sincerely,
dehai eyyl
for
Donald W. Kinard
Chief, Regulatory Division
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Electronic Copies Furnished:
Mr. Ron Miedema, U.S. EPA, Miedema.Ron @epamail.epa.gov
Ms. Constance Cassler, USFWS, Constance_Cassler @fws.gov
Ms. Karyn Allman, SFWMD, 'kallman@sfwmd.gov
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