The Board of County Commissioners of Brevard County, Florida, met in special session on February 17, 2000, at 10:00 a.m. in the Government Center Florida Room, Building C, 3rd Floor, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, Assistant County Attorney Christine Lepore, and Assistant County Manager Steve Peffer.

DISCUSSION, RE: MANATEE PROTECTION PLAN

Current Status of the MPP Approval Process

Chairman Higgs recommended staff give the Board the current status of the Manatee Protection Plan approval process.

Assistant County Manager Stephen Peffer advised the last Manatee Workshop was August 19, 1999; and at that time, staff was in the process of negotiating with the State of Florida and David Arnold, representative of the Florida Fish and Wildlife Conservation Commission. He stated there were a few points of the Manatee Plan that the Fish and Wildlife Commission had difficulty approving; it got them down to a few points through negotiations between Commissioner O'Brien and Mr. Arnold at a prior Workshop in May, 1999; and at that Workshop a proposal came forward from the Cities of Titusville and Cocoa which addressed urban marinas as a possible category for the Board to consider. He stated the Board requested staff contact all waterfront municipalities making them aware of the proposal, and obtaining their input; and staff did that and provided the Board with a summary of it. He advised staff received responses from the Cities of Cocoa Beach, Cape Canaveral, Palm Bay, and Melbourne, and from the Town of Indialantic in support of it; and staff also heard from Merritt Island Redevelopment Agency which requested the Board consider adding the redevelopment area into the definition of an urban area so that Zone D Marina Siting criteria could also apply to it. He stated the City of Satellite Beach indicated although it would like to endorse marina expansion, it felt it was necessary to provide protection for manatees; and the Board should have a copy of that letter. He noted the other cities have not responded to date. Mr. Peffer stated the Board is proceeding through the Plan to determine how it wishes to contact the State in the future and what it wants the Plan to look like; the State is not able to attend the meeting, as it had a conflict with another meeting dealing with manatees and an attempt to come up with a habitat conservation or recovery plan.

Commissioner Scarborough inquired if responses from the cities have been reviewed by the State; with Mr. Peffer responding the State is aware that the Board wants to put the siting issue first since it was present at the previous Workshop. Mr. Peffer advised the State has not provided any comment to that; and inquired if the Board wants staff to get feedback from the State on each change, or bring them a complete document. Commissioner Scarborough advised the State indicated it was willing to look at siting in a different light if other items were looked at as a whole. He inquired if the State does not want to look at portions of the Plan, but as a whole; with Mr. Peffer responding it is his understanding the State wants to look at the Plan in full, and that is the reason staff did not solicit response from the State.

Commissioner O'Brien stated the item before the Board is the current status of the Manatee Protection Plan approval process; he has a document from Carol Knox, with the Bureau of Protected Species Management, that says it has no official policy and no ratio, and the Bureau staff would consider all available data and make a professional recommendation on each permit application on a case-by-case basis, and forward the recommendation to each agency for consideration. He advised there are no legal requirements for production of a Manatee Protection Plan by a county; that is from Department of Environmental Protection (DEP); and the Plan is for the Board's approval only since there is no Plan required.

Commissioner Scarborough advised the Board asked the cities at the previous meeting if there was an advantage to having a plan or not having a plan; the cities were under the impression to have a siting approved by the Board and subsequently approved by the State, the plan would assist in siting of marinas; so the cities encouraged the Board to proceed. He stated while the Board may not be required to produce a plan, it is advantageous for the progression of marinas in the urbanized areas.

Commissioner O'Brien stated the letter dated August 11, 1999 from the Fish and Wildlife Commission advised that the role of the Bureau of Protected Species Management in marina siting is the same as it was when it was part of the DEP; the DEP or St. Johns River Water Management District still has the responsibility for permitting marinas; and the Board is concerned about where marinas may go, but so are the DEP and St. Johns River Water Management District. He stated the Board should question whether it is duplicating what is already being done by the agencies who have the responsibility for marinas.

Chairman Higgs advised the Board is being given an opportunity to come up with guidelines for both the State and Brevard County to agree on; it gives the County additional leverage and input in getting marinas sited; and it gives the Board greater power to participate in the process. Commissioner O'Brien stated Mr. Arnold is not here to discuss marina siting or any part of the plan with the Board. Chairman Higgs advised the Board must decide what it wants to do; and no matter what the State does, Brevard County needs to decide if it wants to suggest things it believes are good for Brevard County. She advised the Board has not come up with a conclusion of where it wants to be with the plan; and it must decide what it wants to do. Commissioner O'Brien stated he thought the Board wanted to work with the State to come up with the plan; and inquired why the State is not present; with Chairman Higgs responding the Board knew in advance the State would not be present, but the majority of the Board wanted to proceed. She stated the Board needs to decide if it wants to suggest certain things and move the plan forward to see if it is something the State can agree with. She stated some of the Board members want to do it because it gives protection for manatees, and they do not want to get in on the process at the tail end.

Commissioner O'Brien advised the State does not have to agree with the plan. Commissioner Voltz stated that is why it is not important for David Arnold to be present. Commissioner O'Brien stated if the State is part of the process, it should be present at this meeting; and if it is not part of the process, the Board should proceed. Chairman Higgs stated it is not her understanding of what the State said to the Board, including the meeting with the Legislative Delegation; and they made it clear that it is a very important item for Brevard County to agree on and work in concert with the State. She inquired if the Board was told by the Legislative Delegation, and initially by the Governor and the Cabinet, that this is a process of the State; and are other counties involved in manatee protection plans; with Mr. Peffer responding there has been a change in the way the State agencies are organized; it has changed the role of the group that deals with manatees; the manatee group is no longer with DEP; DEP does the marina permitting process; and now that the manatee group is part of another State agency, it is in the role of commenting. He stated while it is true the people most closely associated with manatees are no longer part of the permitting organization, marinas still get State permits; and the commenting organization, Fish and Wildlife Conservation Commission, has a very big say regarding manatees and endangered species when it comes to reviewing permit applications. He stated the plan is intended to represent an understanding between the Board and the State agency as to how the Board will do a number of features, marina siting being one. He stated there is a comprehensive approach to looking at how to deal with manatees as an endangered species in Brevard County waters, including marina siting, education, regulatory issues, speed zones, and habitat protection; and all are elements of the Manatee Protection Plan. Mr. Peffer stated the State will look at this as an integrated approach; and it wants to have an understanding with Brevard County to help guide it in its decision. He stated the State knows it has been a long process, and there has been a tremendous amount of public comment; the Brevard County Manatee Protection Plan will represent local input to decisions which the State will make; and the State looks to Brevard County to give it initial guidance. He stated there can be other changes made for other reasons; it probably will not be the final say; but it will be the initial point of departure from which the State will make its decision. He stated it provides local input, and gives the State a strong indication of Brevard County's preferences.

Chairman Higgs advised when the Board started its plan it was dealing with the Department of Environmental Protection, and now it is dealing with the Florida Fish and Wildlife Conservation Commission which deals with the endangered species issue in general. Mr. Peffer stated the DEP will be primarily interested in the marina siting and permitting issue; and the County will deal with the Florida Fish and Wildlife Conservation Commission for most of the other issues.

Commissioner O'Brien stated the letter contradicts everything just said; it says the role of the Bureau of Protected Species in marina siting is exactly the same as it was when it was part of the Department of Environmental Protection; and the Bureau will make comments to DEP and St. Johns River Water Management District if there is an application for marina siting. Mr. Peffer stated even within the DEP, the Bureau was a commenting agency and did not write the permits; DEP has its own permitting section; it will refer to the Bureau staff for comments regarding manatees; so when Mr. Arnold was referring to his section in that letter, he was correct in what he said.

Cities' Responses to the Board's Request for Comments on the MPP

Commissioner Scarborough suggested City of Titusville Planner Wes Hoaglund come forward and comment on the benefits of siting new marinas in municipalities; and inquired if Mr. Hoaglund has changed his position; with Mr. Hoaglund responding in light of the lawsuit, if the County has an adopted manatee protection plan that is signed off by DEP, it will be out of that controversy and be able to move forward. Mr. Hoagland stated the State asked them to prepare the plan; without the plan, the County does not have a position; but with the plan, the County has the manatee protection covered, and is not in violation of the Endangered Species Act. He stated the requirement is to have the plans to assure the species have been adequately protected; and the cities would have at least done their part. Chairman Higgs stated the Board is doing its job if it adopts a plan; but because it has a plan DEP agrees with does not mean others may not challenge the validity of the plan.

Commissioner Scarborough advised Merritt Island is the largest unincorporated area and is a very urbanized area; and inquired if it is easy to integrate the Merritt Island Redevelopment District as a municipality under the proposed siting rules; with Chairman Higgs responding in the language given to the Board from the Cities of Cocoa and Titusville, if "or redevelopment area" is inserted, then the County has dealt with that issue. Commissioner Scarborough stated that will be fine.

Commissioner O'Brien stated he has a problem with some of the language within the plan; one item says if a manatee mortality takes place within five miles of a certain given point, then other measures take place; a five-mile radius is a 10-mile diameter, which means if a manatee dies or is injured somewhere in the Banana River close to Port Canaveral, it affects everything all the way to the City of Cocoa and half-way to Titusville. He stated they have overstepped some form of reality within the plan; and the Board should re-look at how it is trying to accomplish this.

Chairman Higgs stated most of the language in the Zone D is acceptable. She advised she talked to representatives of Cocoa and Titusville, and one of the things that could make this an acceptable and balanced plan would be to have an upward limit; but the language being proposed speaks of unlimited. She advised representatives from municipalities indicated they are providing law enforcement on waters to their cities; and if Brevard County puts minimum hours of law enforcement on the water, there will be a balance. She stated the Board is permitting the expansions and trying to protect the manatees by providing law enforcement and education as a part of the whole package; and she believes it is a balanced approach.

Commissioner Carlson stated Satellite Beach indicated it could not endorse the marina siting portion of the plan based on the unrestricted marina expansion issue; and it thought there should be a cap which she agrees with. Chairman Higgs suggested Jerry Sansom address the law enforcement issue, the high number on expansion, and seagrass issue.

Jerry Sansom, representing the City of Cocoa, stated the City is not talking about an unrestricted number of slips or boats or a prescribed ratio of powerboats to sailboats; and it is not talking about the number of vessels per 100 feet of shoreline, because at some point, either Brevard County or DEP will determine the maximum number of vessels. He stated the City thought with the extra protections, the powerboats to sailboats ratio is an unnecessary burden; and the City does not have an opinion of how many slips or boats per 100 feet of shoreline is appropriate because it has not talked about that issue. He stated on the issue of enforcement, the City does not have a problem agreeing to a requirement of something on the order of 20 hours of on-the-water law enforcement, either within the particular region, in the marina areas, or in adjacent areas of the City of Cocoa in order to afford protection of the manatees; and it is not important to the City where the 20 hours are spent. He stated the idea is the extra enforcement be there to help the cities with their protection of manatees and increased boat traffic created in the marina area or the adjacent areas. He stated with the seagrasses, the City never anticipated the DEP would entertain a suggestion to expand an existing marina into an area that had significant amounts of seagrass; but there seems to be some concern in regard to expansion. Mr. Sansom stated he is not aware of any urban locations that have seagrass issues within the existing perimeters of the marinas; but if seagrasses do become an issue in the expansion, the City does not have a problem with something like 5% or 10% of seagrass coverage. He inquired if there were any other issues the Board would like covered; with Chairman Higgs responding no.

Mr. Peffer stated the opening paragraph of Zone D, the last sentence says, "an urban site is appropriate for expansion of an existing marina if. . .," and then it lists conditions; and inquired if it is the City's intention that all those conditions be met; with Mr. Sansom responding yes. Mr. Peffer inquired if it would be okay to add, "if all of the following are met"; with Mr. Sansom responding yes. Mr. Sansom advised it is the City's intention that the seven criteria must be met and the additional one of law enforcement. Chairman Higgs inquired if they would add the seagrass into that; with Mr. Sansom responding it could be added to make it nine criteria.

Commissioner Carlson inquired where does the factual basis come from in #3 under Zone D which says, "the site has a base, or natural contour of sufficient depth to provide at least one foot of clearance between the bottom of the boats to be moored and the bottomlands"; with Mr. Sansom responding in the City's recommendation it seemed like a good starting point; if the keel is one foot from the bottom, or the chance of prop dredging is less because on larger power boats the props are up higher than that, they are providing distance between the vessels and the bottom. Commissioner Carlson inquired if they are taking into account large sailboats; with Mr. Sansom responding yes, the fixed portions. Commissioner Carlson advised a foot may not be enough. Commissioner Carlson stated Zone D, #7 includes, "sewage pump-out facilities shall be provided on-site or available at another marina within two miles of the proposed expanded facility"; and boaters were interested in seeing pump-out stations more frequently because it saves them on gas and traveling up and down the Lagoon looking for a place. She inquired if it can be one mile instead of two miles; with Mr. Sansom responding he does not see a problem with one mile, but they were trying to find a starting point. Commissioner Carlson stated there is illegal dumping in the Lagoon because they do not know where the pump-out stations are or there is not access to them. Mr. Sansom stated in Cocoa they are planning to have it closer to two miles.

Commissioner O'Brien stated he gave Parks and Recreation Director Charles Nelson the address and information regarding grant money available to Brevard County to erect and maintain pump-out stations; and the Board may have to take a stand at some time to say if there are more than 20 boats at a marina, a pump-out station may be required because many boaters are dumping sewage into the river because there is no place to go. Mr. Sansom stated pump-out stations are very sparse in Brevard County; and if there was one station every two miles, it would be better than the current situation. Commissioner O'Brien advised the Board should again discuss the problems at Dragon Point and the other problems of lack of pump-out facilities for boats.

Chairman Higgs inquired if someone wants to make a motion on this item to include the Zone D; with Commissioner Voltz responding she needs more clarification on the additions. Chairman Higgs stated there are several things added; one is under the second line after, "incorporated municipal boundaries or redevelopment areas," to add "the following are all met"; Criteria 8 would require 20 hours of law enforcement on the water within or adjacent to the entities' boundaries; and no more than 5% seagrass coverage in expansion areas. Commissioner Carlson advised she would like to see the two miles go to one mile between pump-out stations. Chairman Higgs inquired what section should require pump-out facilities if a marinea has greater than 25 boats; with Mr. Peffer responding he does not think it belongs in the plan, but is worth pursuing. Commissioner Carlson inquired how to reword #7 to make it more restrictive; with Mr. Peffer responding it could say, "a pump-out station must be required at that facility."

Ron Pritchard, President of Citizens for Florida's Waterways, stated one of the things the Board is forgetting in the discussion is the issue of urban-like facilities. Chairman Higgs advised the Board already included that in the plan. Mr. Pritchard stated one thing the Board may want to focus on is the J valve on the boat that would allow a discharge into the water. He stated they should be required to be sealed; and if a boat is found with a seal that is broken and there is a holding tank, they should be fined. Chairman Higgs advised the issue is under Zone D; and the current requirements say the site must be located in an area where a sewage pump-out facility shall be on-site or available at the marina within one mile. Mr. Pritchard stated what the Board is focusing on is where something should take place, and what he is focusing on is saying the boat itself should be restricted so it cannot take place in other than appropriate areas. He stated one mile is not a reasonable distance for pump-out stations. He stated having the holding tank cleaned is not an emergency; and it is something that needs to be done, but one can travel to an upper facility. He stated the idea of having holding tank pump-out stations at marinas that have a certain number of boats is an excellent idea, because that keeps the boat at the facility where the clean-out can take place and does not require them to travel any distance.

Wes Hoaglund stated the Titusville Municipal Marina shares a basin with Westland Marine; they have pump-out facilities and service the boats that use Westland; so there is no reason for Westland to also have pump-out facilities since they are so close. Commissioner Scarborough advised the Board is speaking of people having to take their boats a mile to pump-out; and more pump-out stations is for the convenience of boaters and to upgrade the quality of the facilities in Brevard County. Commissioner O'Brien stated the size of the craft that requires a pump-out facility is generally larger than a 23-foot boat; part of the problem is pump-out facilities are very close to marina buildings; and for the larger craft to navigate in order to pump-out their sewage is dangerous. He stated the Board should get involved on setting a limit of how many boats can be at a marina site before a pump-out facility must be available. Commissioner Scarborough stated he would like the Board to say any boats with a restroom, beginning January 1, 2001, should be required to have a pump-out facility at their marina. Commissioner Higgs inquired what would happen if the guy next door already has a pump-out facility, near the water, and easily accessible; with Commissioner O'Brien responding if someone has a large boat pulling out of a marina, the last thing they want to do is pull into another marina a mile away; and the waters in marinas are not the same depth. Commissioner Voltz inquired if marinas are marked if they have pump stations; with Chairman Higgs responding some of them. Commissioner Carlson advised there is no regulation regarding marking of pump stations. Commissioner O'Brien stated there are maps that have the stations noted.

Commissioner Scarborough stated if they are expanding the municipal marina, under the new schedule, they will need to have a pump station provided for the public. Commissioner O'Brien advised under the plan as it is now, no marina in Brevard County would be allowed to expand except in Zone D. Chairman Higgs stated the Board is talking about Zone D; and it is allowing special considerations if certain other things are done. Commissioner Carlson inquired if they could insert "sewage pump-out facilities shall be provided on-site, with the exception or unless adjacent facilities are provided in close proximity"; and to require pump stations if the marina is going to expand. She inquired if the limited space on expansion was covered; with Chairman Higgs responding the Board has not covered that, but covered the issue regarding powerboat versus sailboat. She inquired where else would the Board deal with the total number of expansions; with Mr. Peffer responding it should be under Zone D.

Jerry Sansom advised they do not say unlimited, and say, "there shall be no powerboat-to-shoreline restrictions". Chairman Higgs inquired if they were speaking of number of boats; with Mr. Sansom responding no, they were speaking of ratios. Chairman Higgs stated if the Board clarified the three items, adding #8 and #9, the sewage pump-out change, and the change for the powerboat-to-shoreline ratio, then they have basically accommodated the cities interest; and inquired if someone would like to make a motion to include the changes in the plan.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to insert "or redevelopment areas" under Zone D, second line, after "incorporated municipal boundaries"; insert "all the following criteria are met" under Zone D, third line, after "An urban site is appropriate for expansion of an existing marina if:"; add Criteria #8 under Zone D to provide 20 hours of law enforcement on the water within or adjacent to entities' boundaries; add Criteria #9 under Zone D to include no more than 5% seagrass coverage in expansion areas; insert "unless adjacent facilities are provided in close proximity" under Criteria 7, after "sewage pump-out facilities shall be provided on-site"; and include powerboat-to-shoreline ratios outlined by the City of Cocoa.

Commissioner Voltz inquired if #7 is changing from within two miles to within one mile; with Commissioner Carlson responding no, it will read "required, unless adjacent". Chairman Higgs stated the issue of the redevelopment areas is also included in the motion.

Ron Pritchard stated his suggestion is urban-like, not the redevelopment agency, and it was not part of the motion. Commissioner O'Brien inquired what is Mr. Pritchard trying to say; with Mr. Pritchard responding the Merritt Island Redevelopment Agency area is about a mile wide and runs along the SR 520 corridor; and there are other marinas on Merritt Island, such as Harbortown, Banana River Marina, plus about 10 to 15 others that would be excluded from expansion or development if the County does not use the word "urban-like". Commissioner Scarborough expressed concern about using urban-like because it is a nebulous term that can be expanded; and stated he would prefer to look at a geographical boundary for those areas in Merritt Island and use "the urbanized area of Merritt Island," or something to that affect. Mr. Peffer advised the current proposal refers to incorporation of municipal boundaries. Commissioner O'Brien stated Merritt Island does not have a standing within the Plan. Commissioner Scarborough advised the Board is only talking about expansions. Mr. Pritchard stated marina sitings are not driven by a wish to put them in developments, and are driven by whether they are economically feasible. Chairman Higgs stated siting along the Barge Canal is covered under other areas of the Plan; it is not that the Board is ignoring Merritt Island, it is just not putting it under this category; and the Board deals with the Barge Canal specifically in a number of areas. Commissioner Voltz inquired if staff can look at the Merritt Island area as an urbanized area to see if there are any specific areas there, and bring it back at a later date; with Chairman Higgs responding yes. Chairman Higgs stated Zone B is very specific to the Barge Canal, so the Board specially dealt with part of it and with the Redevelopment Area under Zone D. Jerry Sansom stated there must be a misunderstanding relative to the Merritt Island issue, as the designated redevelopment area language does include the two marinas at the east end of the Hubert Humphrey Bridge.

Sandra. Clinger stated in urban areas there is no evaluation and no consideration for manatee mortality; based on that, Save the Manatee Club cannot support the change, even with an upper limit; and she strongly encourages the Board, if it is going to look into establishing other boundaries, to ask DEP for an opinion on this portion of the Plan as to whether that approach can be considered in a manatee protection plan as being sufficient to protect manatees. Commissioner Carlson stated the Board should start somewhere, submit something to DEP for review, get feedback from DEP, and if it is negative, come back and act on that. She stated she would rather see something go forward and get comments than to extract it and continue the process on and on and get nowhere.

Chairman Higgs advised the Board needs to make a motion. Commissioner Voltz advised there is already a motion on the floor, with a second. Commissioner Scarborough suggested adding direct staff to review and define specific areas on Merritt Island, if any, as urbanized areas, and report back to the Board within 60 days. Commissioner O'Brien stated it should be how to define the issue and solutions to it, and work closely with Citizens for Florida Waterways and Save the Manatee Club in the process. Commissioner Carlson accepted the amendment.

Chairman Higgs called for a vote on the motion, as amended. Motion carried and ordered unanimously.

Chairman Higgs advised her intention was to go through the issues on the list provided by DEP that seem to be unresolved, have the Board discuss those, and not have speakers until the end; but if the Board wants speakers now, that is fine. Commissioner Scarborough stated it is beneficial to the Board's discussion if the speakers comment on what it is discussing at the moment, rather than speak to all the items at the end. Chairman Higgs requested the speakers only speak one time to each issue.

Commissioner O'Brien stated he would like to continue the discussion on boat facility siting. Chairman Higgs advised that is one of the topics that has not been resolved; and page 2 of the May 10, 2000 letter from DEP, indicates unclear aspects of the marina sitings. Commissioner O'Brien stated page 9, Manatee Habitat Features, in the 1997 Manatee Protection Plan, Section A, #2, says if Harbortown Marina on the Barge Canal wants to increase dry slips by 10 slips and five or more manatees are observed within a 10-mile diameter, they will not be able to do that. He stated a hearing officer from the DEP said in a public hearing that a single manatee seen at the same place every month would be a frequent siting, and the DEP has no scientific basis or formula for establishing the top speed allowed. He stated the Board wants regulation for manatee protection, but it wants it so badly that it is saying five manatees within five miles will not allow adding one dry slip; and by making the plan so strict, it restricts the ability of an ordinary person to make a living. He stated some of the marinas have been there over 40 years; but if the owners want to add five more dry slips, they could not do it; the plan prevents a marina owner from expanding his business and making a living; the Board has been too severe in its methodology; and it is being unfair. Mr. Peffer stated page 14 discusses how the Manatee Habitat Features are being used in calculation to produce a number of boat slips; one would need to look at the entire proposal, including manatee abundance, mortality, etc.; and there could be reasons to encourage the development of a marina because of certain existing features. He stated each marina would have to be evaluated on its own; and one could not say a marina could not expand because manatees were seen in certain areas. Commissioner O'Brien stated the Plan says if five or more manatees are spotted within 10 miles of the Banana River Marina, the existing facility is allowed to have a 10 to 100-foot ratio. He stated the total number of watercraft mortalites in Brevard County is less than .03; 5% or more seagrass present on a project site is questionable; and suggested the Board take a map and designate where a marina belongs or does not belong. He stated the County could create a special zone for marinas; and that would be the right thing to do.

Review the Outstanding Issues of the FWC

Chairman Higgs suggested staff comment on the radius and percentages of seagrass issues; and inquired if the 1-100 includes dry and wet slips. Mr. Peffer stated marina sitings was one of the most difficult issues the committee dealt with; all of the criteria were used together to get a handle on where marinas could be appropriately sited and not have conflicts with manatees; so whether one picks five miles or four miles is not as important as looking at all of the factors together. He stated it is not to say that any one of those is the exact correct number to use, but it is appropriate to say they are reasonable, based on a desire to find and identify manatee features and bring those into the calculation which promotes good siting of marinas. He stated if there are not manatee features, and there is an existing facility, there are no restrictions. Commissioner O'Brien stated that is impossible to achieve in Brevard County. Mr. Peffer stated that may be true; however, the concept was if there are no manatee conflicts, then there would be no restrictions on marinas. He stated the way the 1997 Plan numbers translate into marina permits comes out with a greater ratio than what has been historically permitted in Brevard County; it liberalizes what the historical trend has been with the application of the criteria contained in the plan; and one of the comments heard from the DEP staff when the plan was talked about, was that it allows more marina slips in Brevard County than what has been traditionally done before. He stated the effort of the committee was to identify the features and provide a methodology for which manatee features would be incorporated into a marina siting decision; there are many ways to do that; and the committee wrestled with many methods to come up with one that was fairly understandable. Chairman Higgs advised there are also offsetting features, such as slow speed zones, and a balance of negative and positive features.

Commissioner O'Brien suggested rather than go through the mathematics, the County should do it through zoning. Commissioner Scarborough stated there is no reason for doing all of this as there are only certain areas to put marinas; so the Board could say marinas are not allowed except in locations where marinas can exist. Chairman Higgs advised some of the features are being used to discuss where public boat ramps will be. Commissioner Scarborough stated the Board is extremely restricted where boat ramps can go. Commissioner Carlson stated she does not know if the Board can say where a marina or boat ramp can be built since there will come a time when there will be so much restriction that the County would not be able to service the public and give them access to the waterways. Commissioner Scarborough stated the practicality of upland issues will demand much less; and the County will show the State a better position of less total slips. Chairman Higgs advised the Board would have to deal with the upland issue and what is appropriate in terms of land uses; and this is dealing with the water issue and the features in and around that area in regard to manatees. Commissioner Carlson inquired how that can be incorporated with upland issues; with Chairman Higgs responding it is a separate evaluation.

Commissioner Carlson suggested Charles Nelson speak to the Board since he talked with her about ramp siting and the issues involved if the features are applied and how that would impact putting ramps in the waterways.

Parks and Recreation Director Charles Nelson stated staff did a check to see if they could site boat ramps based on the criteria currently in the Plan; and it is confusing because boat ramps are mentioned as part of the marina siting, and need to be separated as they are different types of uses. He stated one of the criteria they cannot determine if it applies to boat ramp siting is the 1-100 beginning ratio; and if it does, they may not be able to meet the criteria to build launching or parking spaces. He stated in some of the more significant areas, the Class II waters, manatee sitings, and criteria in the plan will be difficult for them to overcome. He stated they are not sure how it fits with what they are trying to achieve in terms of the other study they did which says they need hundreds of launching spaces; and they would like to see a separate siting for boat ramps as opposed to having it as part of the marina because it is complicated. Mr. Nelson stated the Glossary mentions boat ramps as part of the definition of boating facility; it is peppered throughout the plan, which may or may not have been intended to address boat ramps; and there is some attempt to exclude them, but that is still unclear. He stated if he was in a position not to want a ramp somewhere, he could succeed by the criteria; and suggested, at a minimum, to separate the siting of boat ramps from marina sitings. He advised based on the existing criteria they may not be able to site a ramp in the south part of Brevard County; he does not believe the document meant to do that; but as it ended up, it did it by default. He stated as an example, it spoke of siting a new boat ramp and included it as a marina, and said it would have to fall under the 1-100 criteria for a new ramp; they are not sure if only DEP can build it, or if Brevard County can build it, or if it falls under the 1-100 criteria; and it is confusing. Commissioner Carlson stated there was a recommendation from Save the Manatee Club limiting the number of slips per ramp placement; and inquired if the Board is going to limit itself and look at the cost to put a ramp in, is it saving and effectively providing the service to the public; and does it want to designate areas that are higher and will work together with land uses in that community. Mr. Nelson advised the original recommendation from Save the Manatee Club limited it to 15, which is cost prohibitive because the work required to build one of those in the water is very expensive; and currently they can launch at least 40 per ramp. He stated because of the issues associated with siting, they try to double up on the ramps; at the Rocky Point site, they would like to go up to 120 launching spaces which would minimize the impact on the water, as opposed to going to many different places with 15 at a time.

Commissioner Scarborough stated if the Board could better define what it is doing as a whole, there may be a greater level of comfort on both sides of the issue. Commissioner O'Brien stated the Board can direct staff to figure out what areas in Brevard County should be allowed to be zoned for marina sitings. He stated the boat ramp issue is a separate part of the plan; it is Brevard County that builds boat ramps; and very few are part of a marina already in existence. He stated the Board needs to look at how to resolve that problem, and give people the right to enter the waterway, especially in the south part of the County where there is a huge demand for ramps. Commissioner Voltz stated it is cheaper to put in parking spots than it is to put in boat ramps; so if only one boat ramp is built, as many parking spots as possible should be built.

Commissioner O'Brien stated the mathematics being utilized in the plan are highly questionable; the Plan says 3% of the total watercraft-related manatee mortalities is currently five mortalities; and if five mortalities are taking place anywhere within a five-mile radius of the river, or a 10-mile diameter, there is trouble. Chairman Higgs inquired who came up with the 3%; with Natural Resources Management Section Supervisor Conrad White responding the State of Florida in a statewide study on boating. Commissioner Carlson stated it needs to be warranted by peer review by scientists who have doctorate degrees and study manatees. Mr. White advised the plan was sent out to a number of scientists who are manatee researchers to see if there was anything that was out of order; and staff received comments back and adjusted the plan to reflect those comments.

Chairman Higgs inquired about the source of the underlying model of the manatee features; with Ms. Clinger responding the 5-mile radius was determined through boating studies; it is the average distance a boater travels from a facility; and that is why they looked at five miles from a facility. She stated 5% or more seagrass was decided by the ad hoc committee; and it started initially at a much lower percentage of 1% to be consistent with the aquatic preserves rule. She stated 1% is the smallest amount that can be reliably determined, and that is why the State uses it in its rules for aquatic preserves. She stated through a committee process, a compromise position was 5%, instead of 1%. Chairman Higgs advised aquatic preserve areas in the Indian River Lagoon are designated by the State for particular preservation. Mr. White stated the State uses 1% when it is evaluating areas for leases. Commissioner Carlson inquired if those are Class I waters; with Ms. Clinger responding Class II waters. Ms. Clinger stated they looked to the State for a guidance number to be used for watercraft-related mortalities; but the State allowed a slightly higher ratio than they considered consistent because of Brevard County's manatee abundance and history with mortality. She stated the freshwater feeding and resting area came from a Marine Mammal Commission Report on Brevard County and Manatee Use; and Class II waters OFW aquatic preserves are recognized water bodies with high levels of resource features that need to be protected during the facility siting process. Ms. Clinger advised the Save the Manatee Club's recommendations were bantered about with regard to boat ramps; and they can endorse unrestricted boat ramp development as long as there are few manatee habitat features present. She stated their recommendation in Zone D is not 15 slips everywhere; they also take into account it is expensive for Brevard County to build boat ramps, and buy waterfront property; and as long as there are sites that will not have a negative impact on manatees or seagrass beds, they do not have a problem with it. She noted the County does need speed zone signs at Kennedy Point.

Commissioner Scarborough inquired if it is beneficial to have more or less sites; with Ms. Clinger responding their original response was to prohibit boat ramps in areas that have the higher number of features. Commissioner Scarborough inquired if Brevard County should have launch sites spread all over the Lagoon or have more concentrated facilities; with Ms. Clinger responding it would depend on where those facilities will be placed. Commissioner Scarborough inquired if all the facilities were acceptable under the current criteria; with Ms. Clinger responding she would rather have a few large facilities; and that is what Save the Manatee Club's recommendation does. She stated some counties name specific facilities that could expand; and she does not see how the Board can do that unless it has criteria. Ms. Clinger stated internally they thought a site specific criteria-based approach would have a fairness to each applicant; but she does not have a problem with drawing a map based on the criteria. She stated it would be a beneficial discussion with the State and may clarify things for a lot of people.

Commissioner O'Brien stated a map can be created, but he is looking at Mr. Peffer's map and the circles cover the entire County. Mr. White stated it is a way of assessing what the criteria would produce in different areas. Commissioner O'Brien advised one of the problems he perceived is looking at the criteria, talking about Brevard County in the context of today, and not looking at what kind of demand for marinas will be there in 20 years. Chairman Higgs stated that is why the plan should be reviewed every so many years. Commissioner O'Brien stated the present criteria says not one marina can be expanded. Commissioner Carlson suggested referring to the table that talks about estimated habitat feature assessments using MPP protocol. Mr. Peffer stated the State had a different ratio or calculation it was using and felt Brevard County should include it in the 1997 draft, so Commissioner O'Brien said to look at what that would mean and try to assess how the different calculations would come out; Ms. Barker did that; and that is what the circles are. Chairman Higgs inquired if marinas can expand; with Beach Management Coordinator Virginia Barker responding what the map shows is what the average number of habitat features would be and what ratio it would mean marinas could expand to; for example, if they have 100 feet of shoreline, how many boat slips could they have; however, she did not go to the next step to look at existing marinas, how many boat slips they have, how many feet of shoreline, and what their existing ratio is. She stated the State did a similar exercise, and on average Brevard County's marinas have a density of about 5-1/2 powerboats per 100 feet of shoreline; many areas would be allowed to expand up to eight or nine powerboats per 100 feet of shoreline; but some would be restrained to two or three powerboats. Commissioner O'Brien stated some marinas, such as the marina on the Barge Canal, do not have any frontage or shoreline because it was dug back years ago. He stated the Banana River Marina has very little frontage because it goes further back inland where the dry storage is. He stated the formulas would not allow Harbortown Marina to expand; that is why he is concerned about the formulas being proposed; and the depth is not considered. He stated although it is a concept, and some very well-intentioned people created this concept, he does not feel it is the approach Brevard County should be taking. He stated the Board should zone for marinas and get maps as it does for houses, factories, commercial operations, etc.; and it should put boat ramps under a different category.

Commissioner Carlson inquired how has depth been determined in the shoreline ratio; with Ms. Barker responding depth was not considered in the analysis; and they can build docks out to sufficient depth, assuming there are not seagrass problems. Ms. Barker advised the depth requirements are one foot of clearance underneath a boat; and depending on how far out the dock is, the depth of the water is going to be different. Commissioner O'Brien advised he is not talking about the depth of the water, but land depth. Chairman Higgs suggested Ms. Barker explain the difference of dry storage versus wet storage in the ratios being discussed; with Mr. White responding both are considered. Chairman Higgs stated Brevard County currently has a Land Use Plan and a Zoning Code that assign appropriate uses along the shoreline.

Commissioner O'Brien inquired if it includes marinas; with Chairman Higgs responding marinas are included within certain zoning classifications; that is in place; and that is what zoning and land use is all about. Commissioner O'Brien stated then it should not be part of this plan. Chairman Higgs stated the Board talks about the size of marina in relationship to the water features that are there; and the other features deal solely with land use.

Ron Pritchard stated Ms. Clinger said the recommendations came from the ad hoc committee; the committee was loaded with environmental people; so the results of the ad hoc committee are something that was generated by a group of people who had their own agenda. He stated the percentage of seagrass and the number of manatees are arbitrary figures; he spoke to people with PhD's, marine scientists, biology professors, and the Chair of Jacksonville University Marine Science Department; and they say that the values are arbitrary for a number of reasons. He stated 5% or more seagrass is considered significant; but there is nothing significant about how many manatees are within a five-mile radius except to limit growth; so the MPP is a growth management anti-boating plan. He stated there are 538 square miles of waterways in Brevard County; in March, Brevard County had 790 manatees, which means 1.5 manatees per square mile; five square miles of waterways is 78-1/2 square miles; and 1.5 manatees in 78.5 square miles could result in 117 manatees within a five-mile radius. He stated it does not leave room for anything other than to restrict growth; and that is the intent behind the five manatees, the 5% seagrasses, and the 3% mortalities. He noted no other county, that has a manatee protection plan, has those features. He stated it would be a stroke of good fortune for the folks who want strict environment regulations if the Board adopts these features because they are strictly growth management and anti-boating features.

Chairman Higgs advised the letter from DEP basically says that Commissioner O'Brien requested DEP assist staff in understanding some alternatives; apparently DEP finds that acceptable, although there were some alternatives; and she assumes what is in the 1997 draft plan was acceptable to DEP. She inquired if David Arnold's comments that say, "major issues not resolved," #2, marina siting, is suggesting Mrs. Wetherell's 1996 letter, or is the County in conflict with DEP on that point; with Mr. Peffer responding Mr. Arnold indicated they would prefer to see the Virginia Wetherell numbers, which was their position on how the ratios should be derived.

Commissioner Scarborough inquired when Dade County did specific places for expansion, what was the State's response to it; with Ms. Clinger advising it was approved. Commissioner Scarborough inquired if the Save the Manatee Club opposed it; with Ms. Clinger responding it was before her time with them, but in general they are fairly happy with Dade County's plan. She stated Dade County does marina permitting in-house; the Department for Environment Research Management for Miami-Dade has a marina permit they issue; and they have been happy with the close scrutiny on the process. Ms. Clinger advised staff has Dade and Citrus Counties' plans, which are two of the approved plans. Commissioner Scarborough inquired if Citrus County's plan is similar to Brevard's, or more similar to Dade County's; with Ms. Clinger responding more similar to Brevard's proposed plan, but much more restrictive because of Crystal River. Commissioner Scarborough stated he would like to see Dade County's plan when the Board gets back from lunch. He stated maybe if the County goes to site specific, it may be more in agreement with DEP. Chairman Higgs inquired if Commissioner Scarborough wants to see Dade and Citrus Counties' plans; with Commissioner Scarborough responding he is more interested in Dade County's plan. Chairman Higgs stated she is more interested in Citrus County's plan. Commissioner Carlson stated since Brevard County has a large portion of manatees, the Board needs to at least look at Citrus County's plan, as there may be a way of doing it like Citrus County did. Commissioner O'Brien advised Volusia County's plan also went to site specific.

Chairman Higgs advised after lunch the Board will look at the plans, and continue with the items not resolved and see where it is. She advised the next item will be speed zones if the Board can get through marina sitings.

Daniel Dvorak with Citizens for Florida Waterways stated arbitrary boat-to-shoreline ratio is a dangerous thing because it lends credence that there might be some scientific reason to say if a person owns so much shoreline, that person can park so many boats. He stated it is government deciding economics and planning; and it is not the place of government to say a person can park 10 boats on his property or two boats, depending on how much shoreline he owns. He stated a pie shaped lot of 50 acres could have only 100 feet of riverfront, and would only be able to park one boat; and it will set a precedent for other interest groups to cite when they work with other counties. He stated it serves to limit the public's use of the waterways; setting a limit on how many boat parking spots per foot of riverfront is not reasonable; and it is a limit created politically, and not through science. He stated there is no science that will say limiting boat parking spots will preserve the rights of citizens and protect the manatees; and it is a political game. Mr. Dvorak stated the 1-100 limit guarantees that no new marinas will be built in Brevard County because it is economically unfeasible; economics is what runs our lives; and no one would build a marina for one boat slip for 100 feet of shoreline. He stated commercial waterfront property costs a lot; and it is going out of sight because there is no new dredging and limits on just about everything. He stated the controversy over 5% seagrass, five-mile radius, five mortalities, and 3% is a smoke screen; the Banana River, Barge Canal, Sykes Creek, Mullet Creek, Sebastian River, Turkey Creek, Crane Creek, and the Eau Gallie River already have 1-100 ratio; it is in the plan already; and those are Zones A and B for the Barge Canal. He stated arguing about where the 5% came from is taking the focus off the rest of the County; all marina interests wish to exempt themselves from these limits; and they could not build if they commit to the 1-100 ratio. Mr. Dvorak suggested establishing a powerboat slip to powerboat ratio in Brevard County; and as the number of powerboats go up, eventually the County will end up with powerboats parked in the middle of the river. He stated he does not believe the Board wants to be the central planning agency for how many boat parking spaces are needed; and inquired who will decide, economics or government planners. He stated when Florida banned gill nets it compensated fishermen for their loss of income and bought their nets and boats; and inquired if the County is going to compensate marina owners for their loss of property value because they no longer can use it to park boats and make a living. Commissioner Voltz stated the last time

Mr. Arnold was in Brevard County there was a discussion regarding another county that had a pilot program to allow a percentage of dry slips, and not including them in any sort of number at all; and requested staff get the information on that.

The meeting recessed at 12:10 p.m., and reconvened at 1:06 p.m.

Chairman Higgs advised before the Board left for lunch, there were a few questions in regard to plans from other counties; and inquired if staff has that information; with Mr. Peffer responding staff is still making copies for the Board of the Citrus County and Dade County plans, and will provide those before the afternoon is over. Chairman Higgs inquired if anyone is in the position to verbally tell the Board about the plans; with Brian Toland responding staff is utilizing his personal copy of the Dade County Plan that was left over from his marina permit and boat ramp review days with Fish and Wildlife Services. He stated they used Dade and Collier Counties' plans and were working with Palm Beach County to develop a manatee protection plan so it would provide a certain amount of predictability and streamlining in the marina permitting process. He stated they utilized the same sort of manatee habitat features to develop areas that were designated as compatible for marina siting and areas that were not compatible, such as seagrass, distribution, distance from inlets, warm water manatee aggregation areas, and boat-related mortality documentation. Chairman Higgs inquired if the Dade County plan was premised on the same sort of information Brevard County has; with Mr. Toland responding yes. Commissioner Scarborough stated Dade County went a step further and applied it to actual sites. Chairman Higgs inquired if Commissioner Scarborough wants to identify particular marinas and sites in the plan; with Commissioner Scarborough responding yes. Chairman Higgs stated the criteria and not identifying particular sites is a better position because it would set objective criteria that are relevant for siting water-related facilities and marina facilities; and it would not be arbitrary. Commissioner Scarborough stated the Board deals with State agencies all the time; and unless they are given the facts, they will see the worst scenario; so if the Board became site-specific, the State would see the real world and understand where Brevard County is coming from. Commissioner O'Brien stated Brevard County's plan has arbitrary criteria that is trying to be specific rather than site-specific. Chairman Higgs stated an equal amount of people have given testimony and submitted documentation that they are not arbitrary. Commissioner O'Brien stated historically in hearings by Department of Environmental Protection, using this type of criteria and other criteria have been found to be faulty; and inquired if the Board really wants to go forward when there is the probability of it being faulty. Commissioner O'Brien stated the mathematical criteria is questionable; so the plan should be site-specific and solve the problem. Chairman Higgs requested staff talk about one of the counties that had its criteria thrown out.

Conrad Bain stated DEP had to go back through the rule-making process with Lee County because of a procedural problem and not because of the criteria they were using to implement speed zones. Commissioner O'Brien stated the hearing officers' statement was that DEP has no scientific basis for establishing the top speed allowed, and there was also a very official expose? of legally questionable tactics used by DEP to implement speed zones around the State. Chairman Higgs stated the Board is not talking about speed zones, it is talking about marina sitings. Commissioner O'Brien stated it compromises everything else; over the past five years, when total populations were annually reported between 800 and 1,200 manatees, the DEP maintained its survey numbers were accurate and used those figures for waterway usage; marina sitings are part of the waterway usage; and the figures were incorrect. He stated the whole argument can be avoided by going to zoning.

Cameron Shaw with U. S. Fish and Wildlife Service stated he is familiar with the Dade County plan, but not to the extent he is familiar with Citrus County because he sat on the committee that developed the Citrus County Plan. Chairman Higgs inquired what criteria did Citrus County use; with Mr. Shaw responding Citrus County did a marina siting study prior to the planning process and had the benefit of that study; and they had criteria similar to the present language in the Brevard County plan. He stated there are some places that are better, from a manatee standpoint, to put a marina than other places; and there was one particular site which was across Florida Barge Canal identified as being the best place for a large facility if one was to be developed in the future. Commissioner Scarborough stated it was site-specific; and inquired if Mr. Shaw had a problem with getting more site-specific; with Mr. Shaw responding it is a complex question, and there is no simple answer to it. Mr. Shaw stated staff would have to look at all the different factors; and the concern he would have as an agency is that he would be recommending development on some property and not on others, and he would not like to be put in the position. Commissioner Scarborough stated every time zoning develops a land use map staff uses all the factors; and compatibility and infrastructure must come together. He inquired if a marina is not a viable option in a location for a number of reasons, why should he pretend the option exists.

Commissioner Carlson inquired how the marina siting study for Citrus County was determined; with Mr. Shaw responding it was an academic study that went into looking at land uses, land use changes over time, manatee use, and manatee changes over time; and the outcome was that there were sites identified that should not have marina development. He stated there was one site that was identified as the best site for future development; and everything else dealt with different factors as far as deciding if a site is suitable or not. Commissioner Carlson inquired who did the study; with Mr. Shaw responding Jane Packard, a researcher from University of Florida. Commissioner Carlson inquired if Citrus County searched for someone specific to do the research, and how did they get the study accomplished; with Mr. Shaw responding he is not sure the County Commission requested the study; and it may have been the State or federal government that commissioned the study.

Chairman Higgs inquired if the Board endows some property with value as a marina, what has the Board done to potential value of other properties; with Assistant County Attorney Christine Lepore responding it is not any different than making zoning decisions and whether it is going to rezone other pieces of property. Ms. Lepore stated the Board would be allowing certain uses to be available on that property and not others; and it does not entitle anyone to a claim against Brevard County any more than zoning actions do. Chairman Higgs inquired if Dade County did site-specific planning; with Ms. Clinger responding yes. Commissioner Voltz inquired what year the Citrus County study was done; with Mr. Shaw responding approximately the late 1980's, and was approved in 1993. Commissioner Voltz inquired if they have put any marinas in Citrus County since the plan was adopted; with Mr. Shaw responding not that he is aware of. Commissioner Carlson inquired what is the feasibility of doing a marina siting study, and would it be a worthwhile project; with Mr. Shaw responding the committee wrestled with that question over a long period of time and chose not to assign development rights to any particular property and to establish a planning process which would allow anyone to come in and evaluate whether their site plan is suitable or not. He stated to identify those sites would have been a huge effort; so they chose to develop an evaluation criteria so that anyone who wishes to know whether their site is suitable or not would have it clearly spelled out what the criteria are and could make the evaluation themselves as to whether it would be cost effective and economically feasible for them to develop the property. Mr. Shaw stated if the Board is going to do a planning study and pick where marinas should be, it still has to establish criteria for making those decisions. Commissioner Carlson stated if the Board goes for a study, she would prefer to go with those who are in the scientific field and not for the Board to come up with some sort of methodology which does not seem appropriate. Mr. Shaw stated it ultimately comes back to the Board. Commissioner Carlson stated there is a land use element to it that seems to be avoided at this point. Commissioner Voltz stated people in this community would rather know where they can put a marina than be led to believe they are able to build a marina and find out they cannot. She stated site-specific and the criteria for zoning is a better way to go. She stated Brevard County has performance based zoning, and in certain zoning categories they can do certain things with the CUP process; this would fall under the same type of category; and that way the Board would not discriminate against anyone. Commissioner Carlson stated she did not believe Save the Manatee Club had a problem as long as the Board adopts its criteria, but then the Board has to go through the exercise of looking at all the Zoning Codes and getting an analysis that says where a marina can be built. Commissioner Scarborough stated places where marinas can be located or expanded could be included in the Zoning Code and also the Manatee Protection Plan. Commissioner Carlson stated it is a potential advantage to bring land uses together with environmental issues because that is good long-range planning; and even though she agrees with the science behind the 1997 Manatee Protection Plan, she does not think it addresses the overall picture; and it does not address the future. Commissioner Voltz stated the future growth of Brevard County is being addressed in the plan as it stands.

Chairman Higgs stated the Board, in making a decision on the MPP, needs to look at the preponderance of evidence that is there, and get the best knowledge it can. Commissioner O'Brien stated going to strict zoning is the answer because everything in the plan is in question. Chairman Higgs stated you go through the preponderance of evidence like you do with any court case.

Commissioner Scarborough requested Steve Peffer or Conrad White call Dade County and ask if it has had any problems or reconsideration with its Manatee Protection plan. He stated he sees some sense in the plan, but would like to hear from Dade County. Chairman Higgs advised the Dade County plan does not identify facilities strictly on zoning. Commissioner Scarborough stated it identifies sites for marina expansion as opposed to criteria. Mr. White stated it generated a map based on manatee habitat features; and it is overlaid on top of seagrass distribution, and manatee mortality data. Commissioner Scarborough stated after taking all of the data, they could end up with a map that does not get into scientific data, but into yes and no as far as building marinas. Mr. White stated it is not that simple, and it may be yes with mitigation. Chairman Higgs stated it is based on factors. She stated if staff calls Dade County, the Board will find out where it is with this issue; and inquired if the Board wants to find out; with Commissioner Scarborough responding he would like to find out.

Chairman Higgs stated the Board needs to talk about speed zones; and there seem to be several it can agree to with the changes in the 1997 plan, but there are people who do not agree with the 1997 plan. She stated the Board could not decide if there was a reason to do the plan; so if a Commissioner wants to move that the Board not move forward, he or she should do it now. She stated the reason the Board is here is to discuss the outstanding issues of the plan and try to answer those. Commissioner Carlson stated there has been acceptance to all the other speed zone issues except Zones A and B; and inquired if there is a way to study those two specific areas and come back with more factual data to make a better decision on just those two areas; with Chairman Higgs responding the Board can look at the mortality data and abundance data now. Commissioner Carlson stated in terms of a study of Sykes Creek and the Barge Canal, both of those are questionable because of the numbers used in the mortality rates. Mr. Peffer stated with regard to speed zones, if Brevard County has an adopted plan, the speed zones recommended as part of the plan would be initiated as part of the implementation that the State would do; if there is a speed zone that Brevard County wishes, and the State and County cannot agree on, Brevard County can still petition to have that looked at; there is a mechanism available to the County to request that; and if the Board has an option in moving forward from this point and not making the changes, but following up later with a study and presentation to the agency, it could request a change at a later date. He stated it is his understanding, after speaking with Mr. Arnold, that basically the County would expect the State to initiate changes per the plan if it is adopted. Mr. Peffer stated the DEP has the same data that Brevard County has; and their interpretation of that data leads them to the decision they cannot approve it.

Commissioner Carlson requested the Board look at Map 9, which is from Save the Manatee Club with information gathered from U. S. Fish and Wildlife. Commissioner O'Brien stated the accidents did not happen in Sykes Creek, but it has been declared no wake because of that; for years, there was 25 miles per hour speed limit in the channel up to the bridge at SR 528; and it is so thin there it must be no wake or slow speed from the bridge to the Barge Canal. He stated those manatee deaths were found in the late 1970's or early 1980's, and nothing since. Chairman Higgs requested Ms. Clinger provide the data on those deaths. Ms. Clinger stated she would need to know exactly who Commissioner O'Brien is talking about as a witness, and would like a copy of that report. She stated they identified the mortalities that occurred in the Barge Canal because that map references Save the Manatee Club's recommendation for the Barge Canal. Commissioner O'Brien advised it is Sykes Creek not the Barge Canal the Board is discussing. Ms. Clinger stated the map Chairman Higgs is looking at addresses the Barge Canal mortality and that part of Sykes Creek is off the map. Commissioner Carlson inquired if the Board has a map that just deals with Sykes Creek and points to the mortalities by identification number; with Ms. Clinger responding the data is available, but she did not do a Countywide map, just specific to the recommendation; and a copy was provided to the Board with a color photo on the front, which is justification for strong and effective manatee protection in Brevard County. She stated she included the most recent aerial survey data and the most recent mortality data broken into north, central and south. Mr. Peffer stated that was provided to the Board on August 10, 1999.

Commissioner Scarborough inquired if the Board disagrees with the State on a fundamental point like Sykes Creek, will the State say it will not accept the plan; with Mr. Peffer responding it is not necessary for the State and Brevard County to agree on every point; Mr. Arnold suggested there might be some parts of the Brevard plan that they simply have to agree to disagree with; but he believes Mr. Arnold would look favorably on Brevard County if it were to point out that the County's position is that in Sykes Creek the speed zones should be whatever, but it recognizes that the DEP does not agree with that; and that would leave it open for future resolution. He stated Mr. Arnold indicated Brevard County should not let those types of things delay it from the greater goal to move forward with a comprehensive plan. Commissioner Scarborough stated if the Board does not make it controversial, the State will not either. Commissioner O'Brien advised Brevard County does not need the State's approval. Commissioner Scarborough stated Commissioner O'Brien keeps saying that, but he is hearing something else from the advocates of marina siting that they find it beneficial; and the Legislature has basically threatened the Board.

Commissioner O'Brien stated on the map that has been passed around there are a series of red dots on Sykes Creek; and there are only two watercraft deaths the Board is concerned about; and Mr. McGill knows the answer to the reason for the two deaths in Sykes Creek. He requested Tom McGill come forward.

Tom McGill stated in the last 26 years there have been two manatees recovered in North Sykes Creek. He stated manatee Field No. M-174 was recovered in October 1979; it was found in the 5th canal south of the SR 528 bridge; and it had massive prop wounds. He stated the other manatee was found on March 8, 1994 in a canal off Columbia Drive in the Canaveral area. He stated the report on that animal states there were four attempts to rescue the animal when it was in the Canaveral area and they were unsuccessful; they netted it three times; and it disappeared until March 8, 1994 when it was found dead. He stated at the maximum there was one mortality in North Sykes Creek in 26 years; and that is from the Florida Department of Environmental Protection data. He stated the one that was in the 5th canal had prop wounds that were too big for any boat that could get under the SR 528 bridge; they found the animal where it was; but that does not mean it was killed there. He noted it was only 300 yards away from the Barge Canal. Mr. McGill stated most of the damage to manatees in Brevard County occurs in the Barge Canal area; and it does not occur because of recreational boats, but because of barges and tug boats.

Chairman Higgs stated there are people who do not agree with that analysis of the deaths. Ms. Clinger stated she is not comfortable speaking as the State's pathobiologist; and encouraged the Board to call the pathology lab and ask them the question about barge deaths. She stated there are clearly four and maybe five in the history of Brevard County that have been documented barge crushes and large vessel strikes. She stated if a large vessel hits a manatee, it will be pinned against the bottom because those vessels draw a lot of water. She stated if an animal is crushed under a barge there are hardly any unbroken bones left in its body by the time it pops out on the other side because the animal is rolled along the bottom and crushed. She stated when the locks crush a manatee often the seal of the lock leaves an imprint on the manatee; there are ways to determine whether it was a large vessel, a barge, or not a vessel; and if the Board has questions about the mortality and true causes of deaths, it can get in touch with the pathology lab. Chairman Higgs inquired if the statement that there were two deaths on the dates Mr. McGill was speaking of is accurate; with Ms. Clinger responding in the small window south of SR 528 and north of the S curve, excluding the portion of Sykes Creek between SR 528 and the Barge Canal, it is true. Commissioner O'Brien advised one was witnessed and was hurt in Canaveral, and the other was in 1979. Ms. Clinger stated that shows the speed zones are working. Chairman Higgs stated the speed zone referred to here is north of SR 528 to the Barge Canal. Commissioner O'Brien stated North Sykes Creek begins at the S curve and ends at SR 528.

Cameron Shaw advised the Board requested he address the issue of manatee mortality with watercraft; they have been keeping records on manatee mortality since about 1974; and there have been about 20 manatee deaths where they can actually correlate what manatee was hit by what boat. He stated in 20 years they have about 20 examples; most of the time when manatees get hit, they swim around and then die hours or days later; some manatees are killed instantly; but others with a critical injury may die at a later time. He stated talking about the number of deaths in the north end of Sykes Creek is like taking a passage out of the Bible to prove a point without reading the whole thing; 1/4 mile south of that point had many watercraft mortalities; and those animals could have been hit in the narrow portion and moved down there to die. He stated there are a large number of deaths in the Sykes Creek/Barge Canal area; and the majority of them are caused by smaller recreational type vessels, based on the types of injuries.

Tom McGill stated he has spent the last year looking over every necropsy for every manatee that was supposed to have died because of watercraft in Brevard County; there are 171 of them; it is not true that forensic work cannot be done to see how a manatee was injured; and he has a veterinarian who will testify to that at his trial coming up next month. He invited the Board to attend the trial on the subject of the speed zone in North Sykes Creek and the Barge Canal. He stated it is interesting that people will quote what the DEP does, but there are obvious things in the records that say, "this animal was cut up into five pieces"; clearly it was done by a ship; but what it says is watercraft mortality. He stated DEP or the Fish and Wildlife people have the ability to make the difference between massive vessels that crush a manatee and recreational vessels. Commissioner Carlson inquired how many of the crushed manatees has Mr. McGill seen, with Mr. McGill responding the majority of the manatees in the last 26 years in the Barge Canal locks, North Banana River, and the Indian River were crushed. Commissioner Carlson inquired what is the majority; with Mr. McGill responding in 1999 it was 70%; and he is prepared to show the Board that data. He stated there were 12 manatees that were supposedly killed by boats; two of them were hit by boats after they had been badly decomposed; so they should not be identified as watercraft related deaths. He stated of the ten that remain, seven were crushed with no propeller marks. He stated the DEP talked about putting protective devices on propellers; one of the recommendations was to take a manatee-like structure and hit it with a boat to measure some force; the forces necessary to break both sides of a manatee structure is not going to happen with a boat hitting it at a 19 degree angle coming down on the surface; the dynamics are not there; but those tests were never run. He stated there is a lot of data behind this that cannot be discussed in a few minutes; and the Board needs to look at all of them. He stated the Board should not accept what people say without proof.

Chairman Higgs advised the Board needs to decide if it wants to do anything on the Sykes Creek issue. Commissioner O'Brien repeated that only two manatees have been recovered in the entire area over 26 years; one was witnessed to have been hit by a boat in Canaveral; so that leaves one manatee death in 26 years in this zone. He stated the Ordinance allowed 25 miles per hour in the channel, and over all those years there were only two deaths; so the Board should put the 25-mile per hour speed zone back into the channel on the north part of Sykes Creek to the SR 528 bridge and not beyond. Commissioner O'Brien stated he does not mind objective data, but resents subjective data to create speed zones because they think it may happen. Chairman Higgs stated what the Board knows is the high number killed both north and south of the area. Commissioner Carlson stated it would be fine to leave it out of the plan and send it to Department of Environmental Protection to study it specifically using forensic detail to clarify some of the reasoning behind those two deaths. She stated she would rather submit something so there is a plan, and send those two back with a challenge of analyzing that data more specifically; and staff could suggest the wording to study that in a challenge like that. She stated the Board can come back and officially put it in later, instead of putting it in right now and having it rejected and be back where it is now. Commissioner Carlson advised the Board needs to go to the State and say it knows more about forensics now and thinks the data is questionable, and request more about the data. Commissioner O'Brien inquired if the data is questionable or their subjective reasoning is questionable; with Commissioner Carlson responding there could be different people doing those things now; and there may be a totally different perspective on it. Chairman Higgs stated there are different people looking at the same data and reaching different conclusions. She stated there are different ways of analyzing the data; and abundance data would be something to look at more closely than where they are finding manatee bodies. Commissioner O'Brien stated if that is the case, the Board will have to use abundance data in every speed zone in Brevard County, and take all the watercraft mortality data and throw it in the trash.

Commissioner Carlson inquired if the Board received data supporting the statement from Department of Environmental Protection under the speed zones, opposing the change because of the increased risk to the manatees; with Mr. Peffer responding they have the same data that Brevard County does, but are interpreting it in a different way. He stated it is more of the abundance data than the mortality data that is leading to their concern on Sykes Creek.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to remove the Sykes Creek/Barge Canal issue from the Plan, not suggest changing that zone, and ask for a restudy by DEP.

Commissioner O'Brien stated he will not support the motion because the data is in front of the Board; there are two known mortalities in Sykes Creek over 26 years; the people in the area want a change and deserve it because of lack of data to support the position; and recommended allowing 25 mph in the channel as it had been in the past until they built Abbey's Marina. Commissioner Voltz inquired why Mr. McGill is going to court regarding the manatees; with Mr. McGill responding he is suing the U. S. Fish and Wildlife Commission concerning the north zone in Sykes Creek and a zone at either end of the Barge Canal. He stated he has a petition he put in last year, and his hearing will be held in the Government Center on March 23-24, 2000. He stated those zones were put into the plan without any data; and Florida Statutes require the DEP look at mortality in the area it is regulating. Commissioner Voltz inquired if Mr. McGill is going to court as an individual; with Mr. McGill responding yes.

Commissioner O'Brien stated he would like to hear some of Mr. McGill's resume? for the record. Tom McGill stated he has a Bachelors Degree and Masters Degree in Electrical Engineering, Masters Degree in Business Administration, is a registered professional engineer, retired from Boeing Company after 38 years, and his second career is as a charter captain. He stated it costs $100 per hour to run his boat; he has a 50-foot yacht and takes people out cruising or deep sea fishing; he does not like unnecessary regulations in place; and implored the Board to have a separate discussion on this issue. Commissioner O'Brien stated he would like to do the opposite of the motion and put both items in the plan and ask DEP to reevaluate its position. Commissioner Carlson stated the Board would be leaving the speed zones as is; it could get a plan potentially on the books and would be further along than it is right now; otherwise, they will send the plan back to the County, and it will be in the same position. Commissioner Voltz stated David Arnold said once the Board gives him the plan, it is his to accept. Commissioner O'Brien stated what is in the plan now should remain in the plan; a 25 mph speed zone north of Sykes Creek should remain in the plan; the plan does not need to be submitted for approval to anyone, as there are no requirements for the plan; and the Board is creating one for Brevard County's use.

Ms. Clinger stated what was in the plan are the 1984-1985 aerial surveys and the end of 1997 and 1998-1999; the State did new aerial surveys because of requests that came out of this process for newer data; and Save the Manatee Club is intervening in the lawsuit coming up with Mr. McGill. Chairman Higgs stated the data the Board has now is current and is the 1997-1999 data.

Ron Pritchard inquired what if DEP decides not to approve the plan; and read an excerpt from Linda Ragos' ruling, who was the hearing officer with the Division of Administrative Hearings, as follows: "The Office of Protected Species Management has been exceptionally zealous in its attempt to turn many of Florida's waterways into idle zones for various motives. To accomplish that, the Agency has deliberately ignored the clearly stated intent of the legislation that granted them the authority to post manatee speed limits and violated Statutory requirements concerning how those rules must be implemented, and engaged in tactics that have been officially described as misleading and deceptive." Mr. Pritchard stated that statement was made after a thorough review of DEP procedures, based largely upon the testimony of DEP personnel; so the Board should not be concerned if DEP approves or disapproves what it comes up with.

Chairman Higgs stated the motion on the floor is to go to the existing zone, with a request for additional data.

Commissioner Scarborough stated if the Board is going to look at Dade and Citrus Counties' plans, it cannot finish the process in a few hours; and this decision should be deferred to one of the last decisions the Board makes. He stated if a decision is not made today, it would be advisable to keep the information flowing so each side can bring additional information. He stated he would be inclined to support Commissioner Carlson's motion, but he does not feel it is the fair thing to do. Chairman Higgs inquired at what point is the Board going to make a decision; with Commissioner Scarborough responding he would like to let people know he has some problems supporting their position and allow them additional time to get information to him, so he would like to table the item. Commissioner O'Brien stated he agrees with Commissioner Scarborough because he would like to find out the outcome of the 120 administrative hearing between Mr. McGill and Florida Fish and Wildlife Conservation Commission, as the result of the hearing may change the Board's opinion on the subject.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 1.A, Speed Zones, in Department of Environmental Protection's (DEP's) letter, for additional information and final result of the 120 administrative hearing between Tom McGill and Florida Fish and Wildlife Conservation Commission. Motion carried and ordered unanimously.

The meeting recessed at 2:30 p.m. and reconvened at 2:45 p.m.

DISCUSSION, RE: MANATEE PROTECTION PLAN (CONTINUED)

Chairman Higgs suggested Conrad White explain to the Board what he found out from Dade County.

Conrad White stated he spoke with Susan Markley, Director of Department of Environmental Research Management, who said the State approved their manatee plan in 1996; the plan is presently incorporated in their County Code; and it is used as an evaluation criteria for project approvals. He stated it does not designate specific siting, but does identify the general areas that could be used for marina development. He stated they use evaluation criteria that are similar to Brevard County in terms of manatee abundance, manatee mortality, the presence of seagrass resources, water depth, and so on; they have not developed any metrics or indices as Brevard has tried to; the plan does not prohibit any area for marina development; but in some cases, it does specify the numbers and types of boats. He stated the process took a longer period than Brevard County's process; Dade County began before 1989 before the Governor's Report that asked the 13 coastal counties to begin the process; and they went through two committees and it took them over six years. He stated existing zoning is a factor; and although it is not the biggest factor, it is looked at during their evaluation process; and the plan does specify in certain areas the number of boats per linear foot, as Brevard has tried to do. Mr. White stated Ms. Markley said one of the biggest factors in Dade County is the presence of Biscayne Bay Aquatic Preserve and the National Park that curtail the amount of marina development that can go on in Dade County. He stated Ms. Markley emphasized the plan is working well; generally, their board follows the plan's recommendations in their evaluation projects that come through; and another factor she emphasized was that it provides certainty to the development community, and they do not continually have to present all the information that they have had to in the past in terms of manatee presence and photos, mortalities, and evaluation criteria that Brevard is trying to do on a development by development basis. He stated the plan is in place, and the developers are trying to abide by the plan when they come and present a project to the board; it does provide certainty; and there are no plans at this time for revisiting the plan to reassess it. Commissioner Scarborough stated Dade County has adopted the plan and seems happy with it; with Mr. White responding Dade County is happy because the plan has been adopted and the State and federal governments have generally left them alone in terms of their permitting process. Commissioner Scarborough inquired if they do the permitting; with Mr. White responding yes. Commissioner Voltz inquired what is the criteria for so many boat slips per linear foot; with Mr. White responding he would have to go through the plan to find out, and Ms. Markley did not mention it.

Chairman Higgs advised page 89 of the Dade County plan says, "All new marina facilities sites and marina expansion sites in Dade coastal waters should meet the following criteria: cause minimal or no manatee boat travel pattern overlap, cause minimal or no wetland or vestment community disturbance or similar environmental impact, and be compatible with surrounding land use." She stated they have established strong criteria.

Commissioner Scarborough stated page 91 has different codes and areas with different grids on them; so while they do have the criteria, it also looks like a land use map. Commissioner Carlson stated it says limits and recommends sites for new or expanded marine facilities other than single-family residences, and it charts them out. Chairman Higgs stated they have residential 1-100 feet of shoreline. Commissioner Scarborough inquired how much would it take to get to the point that Dade County is in; with Mr. White responding it can be done, which includes going through the evaluation criteria and looking at every linear foot of shoreline in Brevard County. Commissioner Scarborough inquired in a broad, general sense, is this something that would take two months or two years; with Mr. White responding about one week. Commissioner O'Brien suggested the Board look at page 112; stated 10 (F) addresses expansions of boat facilities and sets up some parameters that start to make sense; and read, "new added marina facilities shall have adequate water depth for the draft of the vessels using the facility plus three feet in order to clear manatees in water bodies which may be too narrow for the animals to avoid vessels by moving aside." He stated he does not like the approach of mathematical mortality, abundance and seagrass; and read, "the number of powerboats docked at a facility including dockage along bulkheads should not exceed the number of slips approved by a Class 1 permit when it is at the permitting stage; a boat slip is considered to be 20' x 40' long." He noted they also give the size of a boat slip.

Chairman Higgs inquired if there was no overlap of manatee boat travel patterns, would that be saying there would be no marina facilities in the Barge Canal; with Commissioner Carlson responding yes. Commissioner O'Brien advised an example of a travel pattern would be the issue the County had in District 3 where someone wanted to put a development on the canal; the County did not want them to come straight into their canal because it would have cut across the seagrasses; so they brought it in from the south end and around the tip of their property. Chairman Higgs stated that is the boat travel pattern, not the manatee pattern; and the manatee and travel patterns are clearly evident coming through the Banana River or the Barge Canal. Commissioner O'Brien stated there is still room to say minimal or at the discretion. Chairman Higgs stated if they need three feet of clearance, there would be limited places. Commissioner Scarborough stated he likes the idea of saying certain places make sense and certain places do not; water access is needed; and the Board needs to look at any possibility of a marina coming in. He stated he spoke with Wes Hoagland and asked him if there were any places in North Brevard where marinas could possibly go; and Mr. Hoaglund said there is some deep water access along SR 405 near the Hughes property across from Space Camp; and that is the only area that has deep water access but does not have a marina. Chairman Higgs inquired if staff should take the criteria and put it on the map; with Commissioner Scarborough responding they can take the criteria and look at the viability of putting a marina in there. Commissioner Scarborough stated 90% of it is non-manatee data related in District 1; therefore, there are only minimal areas to analyze; and those areas can be analyzed where the County can concentrate its manatee data and research.

Chairman Higgs inquired if the Board wants to see where marinas could go in each district; with Commissioner Scarborough responding yes. Mr. Peffer stated if staff were to look at the areas in Brevard County to determine where marinas are appropriate, they need to evaluate them against criteria, and inquired if the Board wants staff to use the new criteria in the manatee plan to evaluate the different sites; with Commissioner Scarborough responding if staff takes the current criteria, they can analyze the entire stretch of North Brevard. Mr. Peffer stated staff would basically do a rational analysis of what are potential sites, and then use the manatee plan criteria to translate. Mr. White stated pages 11, 12 and part of 13 have preliminary assessment criteria. Commissioner Carlson inquired if staff has all the GIS data to overlay and make those observations fairly easy based on this criteria; with Mr. White responding yes.

Commissioner Scarborough stated he would like to exclude residential from the plan. Chairman Higgs inquired if he means a vacant residential parcel; with Commissioner Scarborough responding yes. Commissioner O'Brien stated in certain developments a marina may be part of that development; and in North Merritt Island there are two developments on the Indian River which have small marina areas within the developments. Chairman Higgs advised the Board has given direction on the siting issue; and inquired if it wants to go forward to discuss other speed zones; with Commissioner Scarborough responding yes.

Chairman Higgs stated the Board discussed Sykes Creek and amending the current speed zone on the Barge Canal at the point of intersection of Sykes Creek to a seasonal zone. Commissioner O'Brien advised the Board directed at that time that it would not accept it into the plan, but asked him to bring it to the Department of Environmental Protection; the reasoning he used was that there is an appearance of manatee mortality between the months of September and March historically over 26 years; the manatee mortality that took place in that zone from Sea Ray to Abbey's Marina took place from late March through the middle of September; and other communities have put in seasonal zones.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve a speed zone of 25 mph on the Barge Canal at the point of intersection with Sykes Creek, 100 yards west of Sykes Creek to the present signage at Abbey's Marina, and to make it a seasonal zone.

Commissioner Scarborough requested Ms. Clinger comment on Commissioner O'Brien's motion. Ms. Clinger stated she was directed to make a policy statement regarding Save the Manatee Club's recommendations for boat speed zones; in light of the present situation, last year's mortality, and involvement in litigation, there are several boat speeds and recommendations they presented to the Board in July that they can no longer support because they are not substantial enough to protect manatees; however, the Barge Canal/Sykes Creek speed zone is not one of those. She stated contrary to the recommendation, there is no more important place to protect manatees; it is an intersection between Sykes Creek and the Barge Canal; and it does not make sense not to have a speed restriction at an intersection as there is significant traffic through that area. Commissioner O'Brien stated it is a no wake zone from the bridge to the intersection; and people do not speed through that area.

Ron Pritchard stated he has a problem with a lot of what Ms. Clinger claims to be a critical area because he is convinced if she had her way the entire County would be considered critical and the whole area would be at best slow speed. He stated the area is a wide interesection, and people can see from that point for quite a distance; speed zones are used to control the wrong boats; they are being used to control recreational boats; and in last 12 manatee mortalities, seven were crushed by a barge. He stated the barge is not affected by speed zones; putting in speed zones does not affect the primary cause of manatee mortality, and it only affects the recreational boater.

Tom McGill stated they are putting in signs for manatee protection, not for boating safety; boating safety is a different rule; and there should be safety signs, not only manatee signs.

Cameron Shaw stated speed zones apply to all watercraft, including recreational watercraft, commercial vessels, and everyone on the waterway. He stated it is the position of the Fish and Wildlife Service that the entire length of the Barge Canal should be slow speed, and the speed zones in Sykes Creek should remain as they are.

Ron Pritchard stated speeds depend on whether it is a plain or displacement hull; and the way the zones are written, if a boat is flat in the water and producing little wake, then it is going at an appropriate speed. He stated he cannot keep up with the barges when they are going through that canal; the speed zone does not affect the barges or tug boats; and those are the primary causes of manatee mortality. He stated his boat, at that speed that is regulated by being flat in the water and propelled along is affected; but it is not his boat or others of that sort that are causing the problem.

Commissioner Voltz stated she remembers being in the particular area, and as soon as they slowed down she thought it was dangerous for them to do that because of boats coming in other directions; and she felt it should have been a slightly higher speed than it was. She stated it is not the speed that is the problem, it is the lack of signage; if there were more signage on the water protecting the manatees and identifying the speed zones, the Board would not be talking about this today; and someone needs to put the signs up. Commissioner O'Brien stated the Board is specifically discussing the Barge Canal which has signs about every 1/4 mile. He stated the first sign says, "No Wake Zone"; then 1/4 mile later it says, "25 mph in the channel," etc., all the way through the canal; and there is also signage in Sykes Creek. He stated the signs are paid for by the Florida Inland Navigational District which every person in Brevard County pays a tax to. Commissioner Voltz stated the signs that were out there are very old and could not be seen.

Chairman Higgs called for a vote on the motion. Motion did not carry; Commissioners O'Brien and Voltz voted aye, and Commissioners Higgs, Carlson and Scarborough voted nay.

Commissioner O'Brien recommended staff review the issue and report back to the Board, and include verbiage on the signage. Mr. Peffer inquired if between Sea Ray and Abbey's Marina is the area Commissioner O'Brien wants the current speed zone looked at; with Commissioner O'Brien responding west of Sykes Creek to Abbey's Marina.

The Board reached consensus to direct staff to review the item and prepare information to amend the current speed zone on the Barge Canal at the point of intersection with Sykes Creek, 100 yards west of Sykes Creek to the present signage at Abbey's Marina, as a seasonal zone, include verbiage on the signage, and report back to the Board.

Chairman Higgs stated the next issue is the Cocoa Beach Recreational Water Sports area; DEP indicated it is a major item not resolved; and Commissioner O'Brien requested the DEP continue to work with County staff on a possible amendment to the speed zone. She inquired how the 1997 plan changed that; with Commissioner O'Brien responding it was a request from the City of Cocoa Beach to expand its present recreational water sports area to the south and west with a 35 mph speed zone, which is in the plan on page 23. Commissioner Carlson inquired if the Board created an amendment; with Chairman Higgs responding it was proposed in the 1997 plan; DEP rejected it; and the question is what does the Board want to do about it. Commissioner O'Brien suggested DEP continue to work with County staff on a possible amendment to the speed zone area. Chairman Higgs inquired if staff came up with anything; with Mr. Peffer responding it is the same situation discussed before where there was a different interpretation of the data. Mr. Peffer advised it is an area which was not recommended by the Manatee Ad Hoc Committee, but the Board changed it during deliberations in 1997 based on a request from the City of Cocoa Beach. He stated the City does not agree with the Department of Environmental Protection's interpretation that, based on the number of manatees in the area, it should not have 35 mph. He stated the City believes the current recreational area is not sufficient to meet its needs and wishes to expand it; DEP looked at the manatee usage in that area, and by its criteria, said it was not acceptable and requested the Board justify the need for this change; and the only thing staff could provide was that there is a recreational need because no additional information was provided regarding manatee data. Commissioner O'Brien stated the law says it is not the intent of the Legislature to permit the Department to post or regulate boat speeds in bays, rivers, and creeks, thereby unduly interfering with the rights of fishermen, boaters, and water skiers using the areas for recreational and commercial purposes. Commissioner Voltz stated the way they water ski there, it is dangerous unless they expand the area. Chairman Higgs stated the DEP and U.S. Fish and Wildlife have opposed this change.

Commissioner O'Brien stated map 6 shows one mortality in the entire park area in a canal in the back. Commissioner Carlson stated in the mortality data Ms. Clinger has provided to the Board, map 6 does not show mortalities in the Cocoa Beach area; and inquired if there is any data that shows mortalities. Virginia Barker stated there are no watercraft mortalities except the one Commissioner O'Brien brought up that was in the canal system. She stated DEP or Fish and Wildlife's concern is the abundance of manatees that use the area; along the south side of the land there is a deep canal; and immediately south of that canal there is a large, shallow, flat area that is too shallow for manatees to travel across during most of the year. She stated manatees use the deep water channel to move in and out of the canal system on the west side of the barrier island; and the Board would be increasing the boat speed in the same channel that the manatees use to get in and out of the canal system. Commissioner O'Brien inquired if there was an aerial done of the area and a count taken recently; with Ms. Barker responding there were aerial surveys done in 1997 and 1998; and part of the aerial surveys are in the blue maps on the table. Commissioner O'Brien stated the aerial survey he saw less than six months ago had ten manatees in the water sports area and three in the area they want to water ski in. He stated Cocoa Beach wants to put the recreational area to the north and south, where there is not an abundance of manatees, according to the verbiage used to deny the request.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to increase the speed zone area known as Cocoa Beach Recreational Water Sports Area. Motion did not carry; Commissioners O'Brien and Voltz voted aye; Commissioners Higgs, Scarborough and Carlson voted nay.

Chairman Higgs stated the Board needs to look at financial impact and request a commitment from the DEP in the form of a financial impact study. She stated Commissioner O'Brien indicated he wants it as a requirement and wants DEP to initiate the study, but DEP indicated it cannot do it; and inquired if the Board wants to take a position. She stated DEP needs to do an economic analysis with a rule change, and inquired if that was just a discussion with DEP; with Commissioner O'Brien responding yes, the discussion was that in other areas of the State, in order to implement new laws or regulations, a financial impact study is required. He stated an example of financial impact is the $100 per hour of driving a boat through some of the zones; and other financial impacts are the red fish industry and flat bottom boats. He stated the current no wake and slow speed zones go all the way to the shoreline; often the shoreline is 1-1/2 feet deep; manatees are not in abundance there, but may have been seen there once in a while; and if the County does not allow them to do 25 mph minimum to go from site to site as they chase the red fish, then that entire industry may collapse in Brevard County, along with the guides who do it for a living, and everything else associated with it.

Commissioner Scarborough inquired about the depth of waters that manatees will go into; with Ms. Clinger responding they will go in shallow waters where about half of their bodies are out of the water. She stated manatees tend to prefer areas that have the deep contour, but will go in shallow areas. Commissioner Scarborough stated if there is a likelihood they are doing it frequently, the Board should look at it. Ms. Clinger stated most salt water fishing magazines talk about the North Banana River no motor zone; that is a place they are advertising as their key spot to red fish; however, they do not have to travel 25 mph to fish, as speed is not the only way to fish for red fish. Chairman Higgs stated she has been red fishing, abided by the rules through slow speed zones, and had no conflicts, so there is adequate ability to fish and still respect the speed zones. Commissioner O'Brien stated the manatees bring themselves out of the water in shallow waters, so the red fish industry should not be allowed to operate at 25 mph in two feet of water because it will endanger the manatee. He stated the new laws that have been passed require an economic impact study; Brevard County deserves that; and he wants to know the economic impact of the plan on Brevard County.

Tom McGill stated there are a lot of opinions expressed in what manatees do; and a statement by the DEP in the Bonita Bay case in 1995 was confirmed by a judge where they agreed that manatees do not frequent waters less than one meter or three feet. He stated they will only go in shallow water if there is a deep channel next to it; and they will not go into two feet of water on a continuous basis. He stated to characterize manatees as being frequent in waters less than three feet is inaccurate; and suggested the Board refer to the Bonita Bay case in which they found the characteristics for water that manatees frequent, which the Bureau of Protected Species Management agreed to. Commissioner Voltz stated when she was out there on the boat, every now and then the guide would say look at that manatee; he had an eye for seeing the manatees up ahead; so if a person can see them in the deeper water, they should definitely see them in the shallow water.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to direct staff to provide information on a financial impact study, including the cost to Brevard County, industries, homeowners, upland impacts, site specifics, and everything financially impacted by implementing the Manatee Protection Plan, and that the economic impact analysis show the positive and negative factors. Motion carried and ordered unanimously.

Mr. Peffer stated the impact study does not have to be part of the manatee protection plan; and it is something the County can do on its own. Chairman Higgs stated the Board cannot force DEP, but will move forward to do the analysis.

Chairman Higgs stated there were 10 speed zones and 13 changes; the Department supported 10; and the Board talked about those. She stated one of the speed zones that was removed was in Sebastian Inlet which is a bad idea; and it should remain as is because there is significant movement of manatees between the St. Sebastian River and the Inlet.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to change the speed zone from the west side to the Sebastian Inlet side to remain as it is today.

Commissioner Scarborough inquired if anyone is opposed to that; with Chairman Higgs indicating there is opposition. Commissioner O'Brien stated the Board should table this item, and get public input. Commissioner Scarborough stated that would be consistent with what the Board has done in the past.

Commissioner Higgs withdrew the motion.

Vice Chairman O'Brien passed the gavel to Chairman Higgs.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table speed zone change in Sebastian Inlet channel going across from the west side to Sebastian Inlet on page 29. Motion order and carried; Commissioner Higgs voted nay.

Commissioner Scarborough inquired how far back will it put the County if it tweaks that portion of the plan and looked at a map as well as criteria; with Mr. White responding staff has the data in-house to create simplistic overlays, which should take no more than two weeks. Commissioner Scarborough suggested Mr. White visit each Commissioner. Commissioner Voltz stated the Board needs to get it out to the public. Commissioner Scarborough stated it could be published in the newspaper saying the Board is considering this change.

Commissioner O'Brien stated in the Pineda Causeway area there will be many marinas that will be affected by the Plan. Commissioner Scarborough stated staff can show existing marinas as a special category with certain capacity to expand, and look at water depth and upland capacity for new marinas. Mr. White stated staff could give the Board an overlay showing water depths along the shoreline, overlay that with seagrass coverage, and present undeveloped properties as well. He stated there is a possibility of overlaying those on aerial photos so the Board can see it correctly. Commissioner Scarborough inquired if the Board likes it and would like to do designations on a map like Dade County, how long will it take to go through the process. Mr. Peffer suggested the Board allow staff to bring the work product back so it could make a determination at that time if it wishes to proceed. He stated there may be some changes that need to be made and some things that need to be considered; and at that time the Board can advise staff if it is what it is looking for, and then proceed with notifying the public.

Chairman Higgs advised the Board has dealt with almost all of the issues from the DEP letter, but has not dealt with all of the issues the Citizens for Florida Waterways and Save the Manatee Club brought before it; so when the Board comes back, there may be more issues that need to be discussed. Commissioner Carlson suggested an outline of what the Board needs to address to make the MPP happen; with Chairman Higgs stating those issues are in the DEP letter and whatever other issues anyone may want to bring before the Board.

Commissioner Scarborough inquired if staff has compiled a list of outstanding issues that came before the Board from various groups; with Mr. Peffer responding that would be an enormous task, as it changes each time. Mr. Peffer stated the items are best captured by the two documents from the Citizens for Florida Waterways and the Save the Manatee Club; and between those two, the Board should not miss a lot of issues. Chairman Higgs inquired if the Board could go through the Citizens for Florida Waterways and Save the Manatee Club issues and put them on a list. Commissioner Carlson stated the Board can vote on it after the issues that were brought up today are brought back. Chairman Higgs stated many things in the 1997 plan would be amended by those two recommendations. Commissioner Carlson stated the Board could ask the two groups to itemize the top three issues they would like addressed as part of the next agenda. Chairman Higgs stated given the scope of the documents they gave the Board, three is rather limiting. Commissioner Carlson stated there are only five areas the Board is dealing with; the 1997 Manatee Protection Plan is broken into seven areas: Habitat Protection, Boat Facility Siting, Manatee Protection Boat Speed Zones, Other Recommendations to Reduce Mortality, Law Enforcement, Manatee/Human Interaction, and Education Awareness; so the Board could split it up and define what it needs to concentrate on.

Chairman Higgs advised the Board will need to discuss the law enforcement component, and eight or ten speed zones. Commissioner O'Brien stated almost everything in the plan is up for discussion. Chairman Higgs advised the Board did make progress dealing with the issues, so when it comes back, it can start with marina siting, move through the other issues, then wrap it up. Mr. Peffer stated staff will work on identifying and developing the maps; once they get into that, they will have some idea how soon they will be able to bring it back to the Board; and they will work with the Board's schedule to find a time for the next workshop. He inquired if staff should try to find a vacant existing workshop day, leave it open, or try to schedule it on another day if it does not fall on one of the previously identified dates on the schedule. Chairman Higgs stated the next workshop should be scheduled as soon as possible.

Upon motion and vote, the meeting adjourned at 4:12 p.m.

ATTEST:

NANCY HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
( S E A L )