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96 May 17, 2010 Florida Department of Environmental Protection Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida Charlie Crist Governor Jeff Kottkamp Lt. Governor Michael W. Sole Secretary Mr. D. Ray Eubanks Plan Review and DRI Processing Team Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida RE: Highlands County 10-1ER; Comprehensive Plan Amendment ORC Review Dear Mr. Eubanks: The Office of Intergovernmental Programs of the Florida Department of Environmental Protection (DEP or Department) has reviewed the above-referenced amendment package under the procedures of Chapter 163, Part II, Florida Statutes, and Chapters 9J-5 and 9J-11, Florida Administrative Code (F.A.C.). Our comments address the potential impacts of the proposed land use designation or policy change(s) on resources or facilities within the scope of the Department s regulatory and proprietary responsibilities. We provide the following comments and recommendations to assist your agency in developing the state s response to the proposed amendment. The amendment package reflects significant changes to the County s Comprehensive Plan to implement the recommendations of its most recent Evaluation and Appraisal Report (EAR). The changes include the following additions to the County s Future Land Use (FLU) Map series: a new Urban Growth Area; a new land use designation called Sustainable Community Overlay; and the Blue Head Ranch Sustainable Community. The new Urban Growth Area includes other new overlays, such as the Greater Lake Placid Planned Vision Overlay. The package also contains new or amended text amendments for several plan elements. The Department s comments will focus on the proposed changes to the Future Land Use Element, the Natural Resources Element, and the FLU Map. SUMMARY OF DEPARTMENT FINDINGS Based on the data and analysis contained in the transmittal package, the Department has determined that the proposed Blue Head Ranch Sustainable Community Overlay FLU Map amendment is objectionable, because it fails to comply with the water supply and public facilities requirements of (6)(a) and (13), F.S. In addition, the More Protection, Less Process

97 Mr. D. Ray Eubanks Highlands County 10-1ER Page 2 of 11 May 17, 2010 Department has determined that some of the changes made to the text of plan elements are also objectionable, because they do not comply with the following provisions of Chapter 9J-5, F.A.C.: 9J-5.006(3)(b)(1) future land uses must be coordinated with appropriate topography and soil conditions and the availability of facilities and services. 9J-5.005(6) goals, objectives and policies must establish meaningful and predictable standards for the use and development of land. 9J-5.013(3)(b) future land uses that are incompatible with the protection and conservation of wetlands and their functions must be directed away from the wetlands. Our comments first address the new planning designations and FLU Map amendments, followed by our concerns about specific policy language that the County has proposed. COMMENTS URBAN GROWTH AREA In Policy 1.2 of the Future Land Use Element (FLUE), the County proposes a new Urban Growth Area (UGA) that would encompass several existing or proposed developments of regional impact, planned unit developments, planning areas and subdivisions, as well as the proposed Greater Lake Placid Planned Vision Overlay. As depicted on proposed FLU Maps 2 and 3, the UGA would incorporate nearly all of the County s urban-scale development along the Lake Wales Ridge. As a relatively high-recharge area (relic dune), the Lake Wales Ridge contains many solution lakes, which are closed-basin systems caused by the collapse of underlying limestone. According to the Florida Aquifer Vulnerability Assessment (FAVA), areas within the proposed UGA are more vulnerable to contamination of the Floridan aquifer from land surface activities. Because the Floridan is the principal source of the County s drinking water, land uses that heighten the risk of contamination to the aquifer should be avoided. FAVA is a statewide screening tool that identifies areas of relative aquifer vulnerability by examining several characteristics, including soil permeability, topography, closed topographic depressions (indicators of karst features), water table elevation, and extent of aquifer confining unit. The best data available to the Department indicates that most of the upland portions of the UGA have reported ethylene dibromide groundwater contamination. The County Health Department and permitting office should work closely with the Bureau of Waste Cleanup in the Department s South District Office to determine whether proposed sites are free from soil and groundwater contamination before authorizing development.

98 Mr. D. Ray Eubanks Highlands County 10-1ER Page 3 of 11 May 17, 2010 Increased development authorized by the proposed UGA could also impact surface waters on the Lake Wales Ridge, including Lakes Placid, June-In-Winter, Istokpoga and Apthorpe. These water bodies are susceptible to stormwater and wastewater contamination, because they are closed basin systems and located in moderate-to-high recharge areas. Development adjacent to the lakes, wetlands and flood zone areas may hydrologically affect and likely reduce natural watershed functions such as the collection, storage, filtering and discharge of runoff. As a result, nonpoint source runoff and septic tank usage will be issues of concern. Due to the sensitivity of Highlands County s surface and groundwater resources, the Department is pleased to note that proposed Policy 1.2.M. states that [a]ll new development within the UGA shall connect to central potable water and wastewater systems[.] Unfortunately, the policy also contains the following exception that the Department finds problematic: extension of central potable water and wastewater systems, at the expense of the County, outside of the UGA shall be discouraged, unless the Board of County Commissioners determines that these services are needed [to] serve a Sustainable Community. The proposed Blue Head Ranch Sustainable Community Overlay is some distance from the UGA, and the County should not subsidize the extension of water and wastewater systems to that area. The exception contained in Policy 1.2.M.3 should be deleted. COMMENTS SUSTAINABLE COMMUNITY OVERLAYS A proposed modification of FLUE Objective 1 provides that application of the County s comprehensive plan and implementation of its land development regulations recognize that most of the future development of Highlands County will be in the distinct areas of: Urban Growth Area and Sustainable Community. New Objective 14 and its supporting policies would create and characterize a new land use designation entitled Sustainable Community Overlay (SCO). While the UGA encircles and expands the County s historical urban and suburban growth areas along the Lake Wales Ridge, SCOs will occur in undeveloped rural areas due to the requirement that an SCO contain at least 50,000 acres. In addition to the minimum acreage requirement, the Department is also concerned about the following SCO designation thresholds: The SCO must be located outside the UGA. Development must occur in the SCO s Compact Urban Development Area (CUDA), which can be no more than 15% of the total acreage. Detailed development plans for the CUDA will be created through the Planned Development (PD) process, which occurs outside the amendment process and does not provide an opportunity for review by state and regional agencies.

99 Mr. D. Ray Eubanks Highlands County 10-1ER Page 4 of 11 May 17, 2010 While the UGA traces the County s historic growth patterns, contains adequate lands for projected growth needs, and provides accessible infrastructure, an SCO would introduce intense urban uses in undeveloped agricultural and natural resource areas. The County has already allocated substantial growth areas along the Lake Wales Ridge, and the northeastern part of the County contains large conservation areas. Because an SCO must contain at least 50,000 acres, the southwestern and southeastern portions of the County (on either side of the Lake Wales Ridge) are the only areas that could accommodate the new land use category. The lands in those areas are currently designated as Agriculture (AG), which has a density of one dwelling unit for every five acres. If developed at that density, about 10,000 dwelling units could be developed on 50,000 acres. The amendment limits high-density urban and suburban development to 15% of the SCO 7,500 acres for a 50,000-acre overlay. Density associated with the remaining 85% of SCO land could be transferred to the CUDA, plus two bonus units for each unit thus transferred as an incentive to the property owner for removing residential entitlements from the lands for Sustainable Green Assets. 1 In addition, Policy also states that each currently entitled unit that is within the footprint for a CUDA shall be awarded two bonus dwellings for being part of the CUDA[.] The policy does not state that the two bonus dwellings for lands in the CUDA footprint are the same two bonus units that would be awarded to density transfers from Sustainable Green Assets. Thus, once the CUDA has been identified and density transferred from Sustainable Green Assets, lands within the CUDA will enjoy at least a six-fold increase in density. Proposed FLUE Policy 4.8.A authorizes additional intensification of development in the CUDA, because it allows the County to create further incentives in its land development regulations (i.e., outside the plan amendment process), including [i]ncreased densities and intensities within Overlay Districts. Consequently, the final density in the CUDA could be somewhat or significantly more than six units for each original unit. The SCO density provisions therefore lack meaningful and predictable standards for the use and development of land required by Section 9J-5.005(6), F.A.C. Although the amendment provides clear indications of the County s desire to allow highdensity urban and suburban development in the CUDA, it is less specific about the manner in which the overlay will identify and protect natural resources in the other 85% of the SCO. The Department is concerned about this lack of information for several reasons: The density bonuses offered for the establishment of SCOs encourage development outside the UGA, in spite of the County s statement in proposed (new) 1 Proposed Policy

100 Mr. D. Ray Eubanks Highlands County 10-1ER Page 5 of 11 May 17, 2010 Objective 3 that Highlands County has limited infrastructure and an overallocation of potential dwelling units to support the 2030 population. The 50,000-acre minimum size requirement relegates SCOs to the two remaining undeveloped areas of the County the Kissimmee River and Fisheating Creek basins both of which contain sensitive wetlands, floodplains and impaired waters in the Lake Okeechobee watershed and are subject to the Northern Everglades and Estuaries Protection Program. 2 Proposed Policy states that Sustainable Green Assets are [l]ands from which residential development rights have been transferred in exchange for bonus dwelling units within the Sustainable Community Overlay[.] Policy states that Sustainable Green Assets include agricultural lands, natural resource lands and other lands to be preserved within the Sustainable Community Overlay. The first description (Policy ) suggests that Sustainable Green Assets do not exist until their density has been transferred to the CUDA. To provide some assurance that natural resources in undeveloped areas of the SCO will be adequately protected, the lands within Sustainable Green Assets should be further classified as either Agriculture or Resource Protection, the latter being a new land use category that should be applied to the resource areas associated with the Kissimmee River and Fisheating Creek, both of which are targeted for restoration as part of the state s ongoing efforts to clean downstream Lake Okeechobee. The new classification should include resource protection standards and guidelines to ensure that uses otherwise allowed in Sustainable Green Assets do not impact the Resource Protection lands. The further classification is especially important in light of new Agriculture land uses proposed in Policy 1.3.D.1.e.: cemeteries; research and education facilities; telecommunication facilities; asphalt plants; solar or wind based power generation facilities; and wastewater treatment plants. The Department is concerned about the effect that some of the new uses could have on natural resources within the Sustainable Green Assets. For example, proposed Policy 1.3.D.1.e. would allow the development of a community college or university satellite campus on Agriculture lands a use that would require significant transportation improvements that could result in significant stormwater runoff. Likewise, the development of asphalt plants or wastewater treatment plants in these basins could lead to air quality impacts and further impairment of surface waters in the Lake Okeechobee watershed the central component of the Northern Everglades ecosystem. 2 FLA. STAT (2009).

101 Mr. D. Ray Eubanks Highlands County 10-1ER Page 6 of 11 May 17, 2010 The amendment s lack of specificity regarding the location, type and environmental value of resources within Sustainable Green Assets also plays into the transfer of development rights (TDR) within the SCO. Because the policies do not identify or designate environmentally sensitive areas as those desirable for density sending areas or require a determination that the environmental quality of a sending area is greater than that of the receiving area, the amendment would allow, for example, the transfer of density from impacted agricultural lands (with low environmental value) to receiving lands in the CUDA that lie within the waters, wetlands or floodplains of the Kissimmee River or Fisheating Creek. Proposed Policy requires recordation of restrictive covenants on Sustainable Green Assets to preclude residential development on the protected lands. The use of restrictive covenants rather than conservation easements, however, conflicts with FLUE Policy 4.3.B.4.c ( [a] Transfer of Development Rights Easement is placed over the property from which the density was transferred[.] ) and Policy 3.21.A.2 of the Natural Resources Element ( Provide conservation easements compatible with the ecological value of the property. ). The amendment s use of restrictive covenants is also problematic, because it does not create enforcement rights in third party beneficiaries (e.g., the local government or non-profit conservation organization). In addition, deed restrictions could later be modified or lifted entirely by the same owner that imposed them, with no one having the authority to challenge the action. The Department recommends that the County amend Policy to require the execution and recordation of conservation easements (rather than restrictive covenants) upon the transfer of density from Sustainable Green Assets. The conservation easement grantees should be the County and a third-party non-profit conservation organization, either of which could enforce the terms and conditions of the easements. COMMENTS BLUE HEAD RANCH SUSTAINABLE COMMUNITY OVERLAY Proposed Policy 14.4 and FLU Map 3 designate and depict the Blue Head Ranch Sustainable Community Overlay (BHR SCO) on 50,000 acres in central and southwest Highlands County. The property is currently designated Agriculture on the County s FLU Map. Approximately 10,000 dwelling units are allowed under the current land use designation. If the amendment is adopted, the maximum development build-out for the site would consist of the following, all located within the overlay s CUDA:

102 Mr. D. Ray Eubanks Highlands County 10-1ER Page 7 of 11 May 17, ,000 dwelling units; 3 8,500,000, square feet of office and retail uses; 1,500,00 square feet of industrial development; 1,000,00 square feet of public or quasi-public uses; and 900 hotel rooms. All of the foregoing development would occur on no more than 7,500 acres of the BHR SCO, with the remaining 42,500 acres (currently designated Agriculture) being eligible sending areas for the transfer of development rights to the CUDA, upon which transfer the acreage would become Sustainable Green Assets. The amendment does not identify adequate water supply sources and wastewater treatment and distribution facilities necessary to meet the projected demands of the proposed land uses. Paragraph (6)(a), F.S., states that a local government s future land use plan must be based on surveys, studies, and data regarding the availability of water supplies, public facilities, and services. Subsection (13), F.S., further states that the comprehensive plans of local governments must address the water supply sources necessary to meet and achieve the existing and projected water use demand for the established planning period[.] The amendment further fails to include a plan for development of the water supply sources and facilities necessary to serve the demands, as well as enforceable commitments for the funding, construction, operation and maintenance of the facilities. The data and analysis submitted in support of the amendment indicate that the BHR SCO is part of a long-range planning effort by the County and the landowner, and that the urban services in place today will be insufficient to serve the proposed development of the site. The submitted data fails to analyze the availability of potable water supply sources and water and wastewater treatment and transmission facilities for the first phase of the proposed development, as well as doe the maximum development potential that could occur within the proposed designations. The County must submit additional data and analysis to demonstrate that acceptable and adequate sources of potable water will be available to serve the proposed land uses. In addition, the County should amend the BHR SCO policies and its Capital Improvements Element to state the manner in which the necessary public services will be provided to support the new land uses, including enforceable commitments to fund the construction, operation and maintenance of the facilities. 3 Presumably, this figure includes all density transfers and bonuses.

103 Mr. D. Ray Eubanks Highlands County 10-1ER Page 8 of 11 May 17, 2010 Resources of the Lake Okeechobee Watershed The BHR SCO lies within the Fisheating Creek sub-watershed of the Lake Okeechobee watershed. The main course of the creek traverses the site, and headwaters of the creek extend throughout the property. Fisheating Creek is a verified impaired water body for excessive nutrients, low dissolved oxygen and iron. The creek is an important tributary to Lake Okeechobee a regionally significant potable water source for south Florida and an integral part of the Everglades ecosystem. The Department is concerned that Highlands County proposes substantial urban- and suburban-scale land uses within and adjacent to wetlands and floodplains that drain into Fisheating Creek. The increased impervious areas created by the proposed changes will heighten the potential for water quantity and quality impacts to the creek and its tributaries, the watershed and Lake Okeechobee. The information submitted with the amendment does not address mechanisms that will be implemented to protect the Fisheating Creek watershed from additional nutrient-loading resulting from the proposed land use changes The BHR SCO lies within the Fisheating Creek Planning Unit of the Northern Everglades and Estuaries Protection Program. Although the amendment generally acknowledges that development in the CUDA will comply with regulatory requirements, Policy 14.4 does not acknowledge the significance of the BHR SCO s water resources (namely, Fisheating Creek and its headwaters and wetland systems), nor does it recognize that its stormwater contributes to Fisheating Creek and its related headwaters and wetland systems or recognize that its stormwater also contributes to Fisheating Creek and ultimately, to Lake Okeechobee. The Sustainable Green Assets (85% of the BHR SCO) will support agricultural operations, as well as cemeteries, research and education facilities, asphalt plants, and wastewater treatment plants. Therefore, the land use of both the CUDA and the Sustainable Green Assets can negatively impact water quality within the watershed and the already impaired receiving water bodies (i.e., Fisheating Creek and Lake Okeechobee), in contravention of Objective 6 of the Natural Resources Element, which states that the County will: Conserve, appropriately use and protect the quality and quantity of current and protected water sources and waters that flow into the estuarine waters by: A. Protecting aquifer recharge areas and groundwater resources against potential contamination. B. Restricting activities and land uses that adversely affect the quality and quantity of surface and groundwater. C. Improve the quality of the County s surface waters and reduce nutrient levels in the County s surface waters.

104 Mr. D. Ray Eubanks Highlands County 10-1ER Page 9 of 11 May 17, 2010 To meet the goals of the Northern Everglades and Estuaries Protection Program (NEEPP) program, SCOs must establish enforceable standards and strategies to improve water quality rather than allow further water quality degradation. The improvements can be accomplished though implementation of measures described in the Lake Okeechobee Watershed Construction Project Phase II Technical Plan and in the watershed protection plans for both the St. Lucie and Caloosahatchee rivers and estuaries. Together, these comprehensive plans provide a road map for improving water quality, expanding water storage, and protecting and restoring the heart of the South Florida ecosystem. COMMENTS OTHER PROPOSED CHANGES TO THE FUTURE LAND USE ELEMENT As previously mentioned, proposed Policy 1.3.D.1.e would add several new uses to the Agriculture land use category. While some of the uses may be appropriate for lands designated as Agriculture (depending on their location within the BHR SCO), the policy provides no guidance regarding intensities of use, siting requirements, floor area ratios and impervious surface ratios. Most of the County s Agriculture lands are located within or around environmentally sensitive resources, such as the Fisheating Creek sub-watershed and the Kissimmee River watershed. Policy 1.3.D.1.e offers no assurance that the proposed new uses are suitable for Agriculture lands and will not negatively impact the noted resources. Moreover, the proposed policy defers the establishment of standards and guidelines for the development of the new uses to the County s land development regulations (LDRs). Meaningful and predictable standards and criteria to guide the adoption of natural resource protections should have been included in the amendment, for adoption into the plan. Chapter 9J 5, F.A.C., states that the goals, objectives, and policies of the comprehensive plan must establish meaningful standards for the use and development of land, as well as guidelines for the content of more detailed LDRs. The rule further describes LDRs as strategies for implementing the goals, objectives and policies of the comprehensive plan. A plan with no standards fails to provide a framework upon which LDR strategies can be formulated. The Department applauds the County s commitment to continuing coordination with government agencies and other stakeholders in the restoration of the Kissimmee River, and to implement measures for water quality, flood control protection, habitat conservation, and cultural resource protection in the Kissimmee River s 100-year floodplain. To confirm that commitment, the Department strongly recommends the following changes to Policy 8.1, to comply with the legislative findings reflected in (1)c., F.S. (Department changes in double underline and double strike-through):

105 Mr. D. Ray Eubanks Highlands County 10-1ER Page 10 of 11 May 17, 2010 Policy 8.1: Special Measures for Kissimmee River Flood Plain The County shall review all land use changes that are proposed for areas within or adjacent to Kissimmee River floodplains or restoration/realignment projects regarding the re-alignment of the river for potential impacts to those resources. In addition, proposed land use changes within the floodplain to the south of the restoration area shall be reviewed for impacts. The County shall not approve land use changes that will impact the Kissimmee River, its floodplains, restoration/realignment projects, or watershed protection plans. The County shall add also consider adding the implementation of applicable appropriate watershed management measures described in from the Phase II Technical Plan for the Lake Okeechobee Watershed Construction Project Phase II Technical Plan to the Floodplain Protection Controls of the County s Land Development Regulations. Comments Proposed Changes to Natural Resources Element Creation of SCOs in the southwestern and southeastern parts of the County could place urban- and suburban-scale growth within current habitat of wide-ranging species, such as the Florida Panther and Florida Black Bear. The Department recommends that prior to adopting the EAR-based amendments, the County consult with the Florida Fish and Wildlife Conservation Commission and thereafter modify, as needed, the FLU Map and plan text amendments to ensure compliance with Objective 3 of the Natural Resources Element, which states that the County will restrict activities known to adversely affect endangered and threatened species and their habitat. To further confirm its commitment to the Kissimmee River Restoration Project, the County should modify Policy 4.1 as follows: 4.1.A. Where feasible, s Support the restoration of the wetland systems, including the Kissimmee River Restoration Project, and where feasible, implement local initiatives recommended by the Phase II Technical Plan for the Lake Okeechobee Watershed Construction Project Phase II Technical Plan. CONCLUSIONS Potable Water Supply and Central Water and Wastewater Service Based on the information and analysis submitted, the Department finds that the text and the FLU Map amendments creating the BHR SCO are objectionable, because they do not

106 Mr. D. Ray Eubanks Highlands County 10-1ER Page 11 of 11 May 17, 2010 meet the requirements of (13) and (6)(a), F.S. The data and analysis provided by the County regarding the availability of adequate potable water supply sources and water and wastewater treatment and transmission facilities to serve the proposed land use changes is insufficient. The County must provide the necessary data and analysis and amend its Capital Improvements Element to address the funding, construction, operation and maintenance of the facilities, including enforceable commitments to provide those services. In addition, the Department has determined that some of the changes or additions made to the text of plan elements are also objectionable, because they do not comply with the following provisions of Chapter 9J-5, F.A.C.: 9J-5.006(3)(b)(1) future land uses must be coordinated with appropriate topography and soil conditions and the availability of facilities and services. 9J-5.005(6) goals, objectives and policies must establish meaningful and predictable standards for the use and development of land. 9J-5.013(3)(b) future land uses that are incompatible with the protection and conservation of wetlands and their functions must be directed away from the wetlands. Thank you for the opportunity to provide comments on the proposed amendments. We look forward to working with the Department of Community Affairs, Highlands County and Blue Head Ranch representatives to address the issues raised during the review process. Should you have any questions or require additional information, please contact Mr. Robin Branda at (850) or Yours sincerely, Sally B. Mann, Director Office of Intergovernmental Programs