8-13-09 Discussion Draft of Section 5 of the NS-EMA Report
(Comments and Questions are in italics)
Section 5 - Projects that Provide a Net Ecosystem Benefit (NEB)
The results of the NS-EMA Stakeholder Group and Technical Consultant analysis of the watershed are presented in Section 2, Section 4 describes the projects considered as part of the threshold and that could contribute to a net ecosystem benefit (NEB). This section specifies those projects that the Stakeholder Group agrees will achieve a NEB over just replacing the barrier at the south end of the Cape Coral North Spreader Canal (NSC), as required in the Amendment to Consent Order, OGC Case No. 06-2345, with The City of Cape Coral pursuant to Section 120.57(4), Florida Statutes. This section includes descriptions of the responsibilities for agreed upon projects listed here and that will be included as conditions in an Ecosystem Management Agreement Environmental Resource Permit and as points in inter-local agreements between the City of Cape Coral and other stakeholders:
5.1 The Proposed Ecosystem Management Agreement – Environmental Resource Permit
The permit will be issued under the authority of Part IV of Chapter 373. Florida Statutes (F.S.) and Title 62, Florida Administrative Code (F.A.C.). The activity is not exempt from the requirement to obtain an Environmental Resource Permit Pursuant to Operating Agreements executed between the Department and the water management districts, as referenced in Chapter 62-113. F.A.C., the Department is responsible for reviewing and taking final agency action on this activity.
The permit will also constitute a finding of consistency with Florida's Coastal Zone Management Program, as required by Section 307 of the Coastal Management Act. The permit will also constitute certification compliance with water quality standards under Section 401 of the Clean Water Act, 33 U.S.C. 1341.
This activity will also require a proprietary authorization, as the activity is located on sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust fund, pursuant to Article X. Section II of the Florida Constitution, and Sections 253.002 and 253.77. F.S. The activity is not exempt from the need to obtain a proprietary authorization. The Department has the responsibility to review and take final action on this request for proprietary authorization in accordance with Section 18-21.0051. F.A.C. and the Operating Agreements executed between the Department and the water management districts, as referenced in Chapter 62-113, F.A.C. In addition to the above, this proprietary authorization has been reviewed in accordance with Chapter 253, F.S. Chapter 18-21 Section 62-343.075, F.A.C.
The Department will review projects as described above and on documents and/or drawings to be provided by the City of Cape Coral and as long as the work performed is located within the boundaries as described and is consistent with the terms and conditions therein, the projects qualify for a consent to use state-owned submerged lands.
The permit will constitute a determination, pursuant to Section 380.0651 (3)(e), F.S., that the facility is located so that it will not adversely impact Outstanding Florida Waters or Class II waters and will not contribute to boat traffic in a manner that will adversely impact the manatee.
A copy of the anticipated authorization will be sent to the- U.S. Army Corps of Engineers (USACOE) for review. The USACOE may require a separate permit Failure to obtain this authorization prior to construction could subject Cape Coral to enforcement action by the USACOE. You are hereby advised that authorizations also may be required by other federal, state and local entities. This authorization does not relieve you from the requirements to obtain other required permits and authorizations.
Cape Coral, the named permittee will be authorized to undertake the work shown on the application and approved drawing(s), plans and other documents that will be attached or on file with the Department. The permit and authorization to use sovereign submerged lands is subject to the limits, conditions, and locations of work shown in the drawings, and is also subject to the General and Specific Conditions, which will be a binding part of the permit and authorization. Failure to comply with all drawings and conditions shall constitute grounds for revocation of the permit and appropriate enforcement action.
5.2 Summary List of NEB Projects
The Net Ecosystem Benefit (NEB) projects, pursuant to 403.075 Florida Statutes listed below are followed by more specific descriptions and proposed project conditions:
Projects to be implemented by the City of Cape Coral
· Adopt a Cape Coral Fertilizer Ordinance
· Amend the Cape Coral Seawall Ordinance “Living Shoreline”
· Establish Littoral Vegetation and Hard-Bottom Reef Habitat on the West Side of the NSC
· Amend the Cape Coral Sanitary Sewer Extension Program (SSEP)
· Implement Surface Water Management Procedures to achieve desired wet and dry season water flow, timing, distribution, and quality targets.
· Adopt a Septic Tank Maintenance Ordinance
· Maintain the Cape Coral Canal Dredging Profile
· Implement Boating Related Enhancements
Projects to be implemented by Cape Coral, and Lee and Charlotte Counties, SFWMD, SWFWMD, and others as specified in interlocal agreements
· Manage Flows and Timing of Water into the North Spreader Canal (NSC)
· Stormwater Treatment Area(s)
· Gator Slough Channel Improvements
· Yellow Fever Creek/Gator Slough Storm Water Transfer Facility
· Yucca Pens Hydrologic Restoration
· Charlotte Harbor Flatwoods Hydrologic Restoration
· Matlacha Pass Hydrologic Restoration Phase 2
Additional Opportunities for Net Ecosystem Benefit
The following are potential projects that the Stakeholder group recommends but that do not have detailed descriptions or sponsor commitments:
Detailed descriptions of the following projects are not included in this draft of Section 5 because they probably won’t be included in the permit conditions. Where they go in the report will be discussed at the next meeting.
· Study of ecosystem enhancement opportunities west of the NSC; possibly as part of a Park Management Plan amendment
· Buy empty residential lots for stormwater retention
· Enlarge culverts under Pine Island Causeway
· Projects to mitigate boating impacts (CHAP, DEP memos)
5.3 Projects to be implemented by the City of Cape Coral
Cape Coral Fertilizer Ordinance
The City of Cape Coral shall adopt an ordinance regulating the use of fertilizer to reduce the amount of nitrogen and phosphorous entering the NSC and receiving waters through landscape fertilization. [There are 2 options]
1) The City shall adopt an ordinance that is as stringent as the Lee County Fertilizer Ordinance.
2) The City shall adopt an ordinance that is consistent with the state’s model ordinance, which could be accomplished and passed relatively quickly. Due to the leeway presented in the model ordinance, the city shall endeavor to emulate the LCO as closely as possible without being more stringent than the model ordinance. The city’s ordinance will also include provisions for public education regarding fertilizer use.
(If option #2 is chosen) The ordinance shall be adopted within 12 months of adoption of the EMA. The current draft ordinance (7/8/2009) is shown in the appendices.
The state has enacted new requirement that any ordinance that is more stringent than the state’s model ordinance must justify why an exception to the model is necessary. The Lee County ordinance appears stricter because:
1. It does not exempt pesticide/fertilizer mixtures
2. It does not contain an exception during the restricted application period for one application of nitrogen and/or phosphorus, via a slow release fertilizer.
3. It does not contain an exception for soil or tissue deficiencies, which have been verified by an approved soil test.
4. Its blanket requirement of fifty percent (50%) Slow Release Nitrogen.
5. Its limit of (4) lbs. of nitrogen per 1000 ft 2 per year.
As the State requirement for consistency was in large part industry driven to reduce confusion between property owners of various jurisdictions, and simplify business requirements of different rules within the working territory, the City shall submit an application for an exception to the model Ordinance on the basis of being consistent with Lee County, in which the City lies.
Cape Coral Seawall Ordinance “Living Shoreline” Amendments
The City of Cape Coral will amend its ordinance regulating shoreline stabilization by new development, as well as any seawall replacement or repair that needs a City construction permit, to require additional use of rip rap, coastal vegetation, or other methods of stabilizing the shoreline and creating “living shorelines.” Bank stabilization along the NSC by vertical seawalls is currently common, which provide little habitat or water quality benefits (MASGC, 2007) (NOAA, 2008).
The ordinance amendments will include requirements in excess of those already mandated in the existing City shoreline stabilization ordinance, and may include extra coverage of rip rap, provisions for planting desirable vegetation, or facilitating colonization of oysters. Examples of potential alternatives are included in Appendix X. The amendments shall be adopted with 12 months of adoption of the EMA.
Establish Littoral Vegetation and Hard-Bottom Reef Habitat Along the Westside of the North Spreader Canal
The City of Cape Coral will initiate a program to create “living shorelines” along the west side of the NSC system. The program will establish new habitat within the body of the NSC system by using available coral rock excavated during public and private construction activities to create hard substrate habitats at intertidal elevations in the NSC. The program will use excavated rock for riprap materials when available, over a period of several years as materials become available. Rock would be processed to the desired size and transported to a barge-loading site by the contractors involved with public and private construction projects. The City operation would include the barge transport of the rock to the currently active site and construction of the habitat by placement of the rock in accordance with the habitat design.
The primary location for the added “living shorelines” will be in a linear alignment close to, but not on, the NSC west bank (see Figure 5-1, section A-A’). Breaks in the riprap will facilitate circulation and utilization of both sides of the riprap by plants and animals. It is anticipated that placement of the hard substrate will result in colonization by oysters, beneficial vegetation such as mangroves, and other elements of living shorelines. As an alternative to natural colonization of vegetation, plantings of mangroves and other desirable vegetation can be incorporated into the design specifications of the installations.
The City will begin this program within 12 months of adoption of the EMA ERP permit.
Figure 5-1. Living Shoreline Potential Configuration.
Cape Coral Sanitary Sewer Extension Program (SSEP)
Condition based timing for the development of centralized sewers will be based on the following:
Definitions:
· Sewer systems density: The ratio of (permit applications + permits issued by the Florida Department of Health for on-site sewage treatment and disposal systems + sewer connections) per acre of developable land (which excludes right of way, canals, lakes, and parks).
· Section(s): Land area as defined in the Public Land Survey System
The timing requirements for development of sewers shall be based upon sewer systems density, based on the latest semi-annual report. A fully developed typical single-family residential area in Cape Coral consisting of the typical ~ 10,000sf parcels have a density of approximately 4.36 buildings per acre (4 buildings / 0.918 acres]. 40% development of such a typical residential area consisting of ~10,000sf parcels corresponds to a sewer systems density of 1.74 (4.36 x 40%). 50% development corresponds to a sewer systems density of 2.18 (4.36 x 50%).
The sewer systems density in each section shall be updated semi-annually as of January 1 and July 1 of each calendar year. A summary report listing the results by section shall be provided to the Florida Department of Environmental Protection not later than January 30 and July 30 of each calendar year.
Design of centralized sewer systemsin a sectionshall begin no later than 90 days following submittal of an annual report which indicates thesection has reachedasewer systems density of1.74.Subsequent constructionof the designed sewer system in the section shall commence when or beforethesection reachessewer systems density of2.18 and be substantially completed within 18 months of commencement, except as otherwise provided due to factors described below.
The development of centralized sewer systems in Cape Coral is effected by practical considerations for the canals, major roadways, master lift stations, force mains, and other design factors, which divide the land areas. Hence, some areas in the development of sewers in a section may be excluded for a project to be reasonably cost effective. Sewer development of an equivalent area in a different section will be added to the project scope to mitigate an area excluded due such considerations. Sewers in excluded areas would then be included with an adjacent section when the sewers in that section are later developed based on the sewer systems density criteria.
[DELETE THIS PARAGRAPH IF THE MAP SHOWS NO SECTIONS EXCEEDING 1.74, WHICH DO NOT ALREADY HAVE CENTRAL SEWER]
Sections xx, ... are exempted from these timing requirements as these sections had surpassed the above sewer systems density criteria at the time this timing requirement was established. The design of sewer systems in these exempted sections xx, ... shall begin within one (1) year of issuance of this requirement by the Florida Department of Environmental Protection. Subsequent construction of the sewer system shallcommence within eight (8) months of design completion and permit approval and be substantially completed within eighteen (18) months of commencement.
If not previously accomplished in accordance with the above requirements, the development of sewer systems in the areas on the tidal canal system west of Burnt Store Road and south of Kismet Parkway (Sections 18.44.23, 07.44.23, 06.44.23, 31.43.23, 01.44.22, and 36.43.22) shall be completed within five (5) years of the date these requirements are established.
Notes (which may be excluded from the final language):
1. This approach will be inmuch smaller areas than has been past practice, such as the Southwest 6/7 project, which encompasses approximately 4 square miles. (A section is approximately one (1) square mile in area.).
2. Florida Administrative Code Department of Health Rule 64E-6 regarding onsite sewage treatment and disposal systems provides that septic tanks are generally permissible for single family homes on 1/2 acre parcels. Most buildable residential parcels in Cape Coral are ~10,000sf (0.23 acres), none are smaller, many are larger. At 50% density, or the equivalent sewer systems density of 2.18, the aggregate of developed properties to undeveloped properties is approximately equivalent to the 1/2 acre per residence.