This is the staff recommendation for the July 9th meeting.  The Commission reviewed staff comments, accepted staff recommendations, and voted 4 to 1 to continue the hearing to August 13 for final adoption.

STAFF RECOMMENDATION (July 9, 2013): 

Review the draft response to State Agency comments and the proposed changes to the text of Chapters 1, 2 and 4. Direct staff on any additional changes and continue the meeting to August 13, 2013.

BCC FINAL ACTION:

Following the transmittal hearing in April, state agencies provided comments at the end of May. Attached to this staff report is the full text of those agency comments that were also presented on June 18. Also attached is a Draft Response to those agency comments. Some comments by State Agencies may be resolved by changes to the text of Chapters 1, 2 and 4, that was transmitted to state agencies on April 26, 2013. Stricken text in the three chapters is proposed for deletion. Underlined text is proposed for addition to the currently adopted text. Text changes in the three chapters after the April transmittal to state agencies are shown with yellow highlight.

1. Some changes have been made to the proposed text in response to state agency comments. Those changes are described in the attached matrix. Not all the issues have been resolved. Additional policy changes may be presented as work with state agencies progresses.

2. The residential capacity methodology presented in April considered the demand for residential units and the supply of land for residential units in the Eastern Urban Service Districts and the Indiantown Urban Service Districts. As discussed with the Board on June 18, 2013 this concept did not match the policies permitting the expansion of the Primary and Secondary Urban Service Districts. This issue has been resolved. All references to an Eastern or Indiantown Urban Service District are being deleted from the proposed methodology. Projected housing unit demand in the Primary and Secondary Urban Service Districts will be compared to the supply of land within those geographic boundaries. This is consistent with the existing policies of Goal 4.7. This change eliminates the need to make major changes to Objective 4.7A or Objective 4.7B.

3. The population methodology in the draft is conceptually complete. It distinguishes between permanent, peak and weighted populations and specifies how these are used in projecting housing need and facility demand. Most of the changes shown are not changes from the policies presented in April. They are refinements of the language to be as clear as possible. Now that the concepts have been fully articulated, staff plans to compare and revise the language, if needed to assure that the language in Chapters 1, 2 and 4 are clear and consistent. Lastly, definitions must be renumbered.

Staff Response to Agency Comments

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DEO had no formal comments. DEO provided the following technical assistance comments.

DEO COMMENT : The proposed population projection methodology (Section 1.7 and Objective 4.1D) does not clearly include seasonal population. For the purposes of ensuring sufficient land to address projected population needs.

STAFF RESPONSE: Chapter 2 contains definitions for Population, seasonal (facility needs) and Population, seasonal (housing needs).

Two additional definitions Population peak (facility needs) and Population Peak (housing need) have been added following the DEO comment. A new Section 1.7.D. has been added discussing Peak population and Section 1.7.E.has been revised.

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DEO COMMENT : Many of the proposed amendments make reference to goals, objectives and policies located in other chapters of the plan. These proposed amendments are intended to make the plan stream-lined and user friendly, however, as proposed, they will create numerous internal inconsistencies. The County attempted to address internal inconsistencies with language in Section 1.1., stating the more restrictive goals, objectives, and policies of this chapter and of Chapter 2 shall superseded other parts of this Plan when there is conflict.However, it is not always clear what more restrictive means with respect to any specific requirement. Nor is it consistent with Chapter 163 to knowingly create inconsistencies and then attempt to reconcile them with a general catch-all provision.

STAFF RESPONSE: The examples of potential inconsistencies cited by DEO all compare proposed policies in Chapter 2 with existing policies in Chapters 8 and 9. DEO found Policy 2.2A.1., defining wetlands,to be inconsistent with Policy 9.1G.1(1)., CGMP. The DEP, SFWMD and DACS found Policy 2.2A.1. inconsistent with State Statutes. DEO found Policy 2.2A.5. requiring restoration of wetlands inconsistent with Policies 9.1G.1through 9.1G.4.,CGMP. DEO found Policies 2.2C.9 and 2.2C.10inconsistent with the shoreline protection standards in Objective 8.1C. and the accompanying policies. Staff is currently working to resolve these issues. The Board initiated an amendment to Chapters 8 and 9 on June 4, 2013. That amendment will also allow policy changes to these chapters at a later date. However, staff recommends retaining language in Section 1.1., stating the more restrictive goals, objectives, and policies of this chapter and of Chapter 2 shall supersede other parts of this Plan when there is conflict.This provides a backstop in the event an internal consistency gets unintentionally past.

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DEO COMMENT : states Policy 2.2C.6 lacks meaningful and predictable guidelines and standards. The County should define what is meant by natural conditions and either provide data and analysis identifying what those conditions are or provide a methodology that developers and property owners can use to make that determination.

STAFF RESPONSE: The policy states “Development approvals shall assure that, to the maximum extent practical, water quality and rate, timing and volume of runoff will recreate natural conditions for the benefit of wetlands, the estuary and other receiving water.” The words “to the maximum extent practical” provide flexibility in this policy in recognition of the fact different sites will have different natural conditions or will have had different natural conditions prior to man-made impact. The term “natural conditions” was defined in the definitions section of Chapter 2. The term has been revised to further clarify. Natural conditions: Those conditions wetlands and native upland habitat, in place before any man-made impacts. An existing term, native upland habitat has been in Chapter 9 for many years and is also being added to the Definitions portion of Chapter 2. Policy 9.1G.5.(1), CGMP. “Native upland habitat: Native plant community associations, including canopy, understory and groundcover, or any combination of them that are generally undisturbed and unimproved.”

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DEO COMMENT: States: Policy 2.2A.5.lacks meaningful and predictable guidelines and standards. “Where evidence indicates that drainage, clearing or other development or manmade impacts has taken place subsequent to April 1, 1982, and in violation of this Plan, restoration shall be required before any development permits or orders are issued, or within 90 days of receiving a notice of violation. This policy shall apply regardless of whether or not the wetlands in question have ever been delineated through either a formal or an informal boundary delineation.

The policy lacks guidelines and standards establishing the evidence that will be used to identify manmade impacts, the condition that the evidence will be measured against and to which restoration will be required and the meaning of "informal wetland boundary delineation.

STAFF RESPONSE: The requirement in Policy 2.2A.5 is not new. Similar language is found in Policy 9.1G.2.(6), CGMP and has been there for decades. The text of Policy 2.2A.5. has been revised to match the following text. 

Policy 9.1G.2.(6), CGMP.

“Violations. Where evidence indicates that drainage, clearing or other development or manmade impacts have taken place since April 1, 1982, in violation of applicable wetland development restrictions in effect at the time the violation occurred, restoration shall be required before any development permits or orders are issued, or within 90 days after receiving a notice of violation. A minimum twoyear letter of credit or other acceptable financial alternative must be submitted to assure the successful restoration of the violation.” 

Regarding the lack of guidelines and standards: Neither proposed Policy 2.2A.5 nor existing Policy 9.1G.2(6) should be considered establishing the evidence that will be used to identify manmade impacts, the condition that the evidence will be measured against and to which restoration will be required and the meaning of “informal wetland boundary delineation.in isolation. Both should be considered along with Policy 9.1A.8., CGMP, Land clearing.These policies protect wetlands and native upland habitat from being destroyed or eliminated prior to site plan submittal. It is difficult to preserve something if it is already gone. 

Staff does not concur with DEO regarding the term “informal wetland boundary delineation.” References to formal and informal wetland boundaries are widely used by the DEP and the SFWMD. The terms binding and nonbinding jurisdictional determination are also used commonly. Section 373.421, F.S. Delineation methods; formal determinations, uses similar terms. Please see the following quote from Section 373.421(6), F.S. as an example: 

“(6) The district or the department may also issue nonbinding informal determinations or otherwise institute determinations on its own initiative as provided by law. A nonbinding informal determination of the extent of surface waters and wetlands issued by the South Florida Water Management District or the Southwest Florida Water Management District, between July 1, 1989, and the effective date of the methodology ratified in s. 373.4211, shall be validated by the district if a petition to validate the nonbinding informal determination is filed with the district on or before October 1, 1994, provided:”

Staff notes that neither DEP nor SFWMD commented on Policy 2.2A.5 or on the term “informal wetland boundary delineation.” However, minor wording changes have been made to match F.S.

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DEP provided the following comments.

DEP COMMENT: The adoption of proposed Policy 2.2A.1. would violate Section 373.421(1). F.S. which adopted a wetland methodology that is binding on the DEP, water management districts, local governments and any other governmental entities.

The definition of “wetlands” proposed in Policy 2.2A.1. conflicts with the statutory definition ratified by the Florida Legislature and codified in Section 373.019(27), F.S. The County should not adopt Policy 2.2A.1 as currently proposed. The policy should be modified to conform to the statutory definition.

STAFF RESPONSE: Staff is currently working on a resolution to this issue of compliance with Section 373.421(1). F.S. The resolution will also involve compliance with Section 373.019(27), F.S. 

The definition below does not conflict with Section 373.019(27), F.S. However, the word “or” in Policy 2.2.A.1. has been replaced with “and” to match the text found in Florida Statutes. 

“Policy 2.2A.1. Wetlands are defined as areas that are inundated or saturated by surface water or groundwater at a frequency or and a duration sufficient to support, and, under normal circumstances, do support, a prevalence of vegetation typically adapted for life in saturated soils.” 

Below is the full text from Section 373.019(27), F.S.: 

“(27) For the sole purpose of serving as the basis for the unified statewide methodology adopted pursuant to s. 373.421(1), as amended, “wetlands” means those areas that are inundated or saturated by surface water or groundwater at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above.These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce, or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. Upon legislative ratification of the methodology adopted pursuant to s. 373.421(1), as amended, the limitation contained herein regarding the purpose of this definition shall cease to be effective.”

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SFWMD provided the following comments.

SFWMD COMMENT: To conform with Florida Statutes, Policy 2.2A.1 should be revised to reference the wetlands definition in Section 373.019(27), F.S., and delineation methods in Section 373.421, F.S.

STAFF RESPONSE:  Staff is currently working on a resolution to this issue.

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SFWMD COMMENT: “As a threshold matter, the District is concerned with the scope of several proposed policies which appear to transgress the District’s exclusive authority to regulate consumptive use of water (i.e., water withdrawals). Specifically, draft policies 1.5D, 2.2D.3, and 2.2E.1 address water withdrawals and associated impacts.

Through enactment of section 373.217, Florida Statutes, the Legislature expressly preempted the entire field to regulate consumptive uses, including any impacts associated with water withdrawals, to the water management districts.” 

“While the proposed policies state the County’s intent to use its land use authority to implement the policies, it appears impossible to reconcile the preemptive authority of the District with the stated subject of the identified policies and the County land use authority. Therefore, the District respectfully requests the County delete these proposed policies from its draft comprehensive plan amendments.”

STAFF RESPONSE:  As the following quoted text indicates Martin County is not attempting to regulate pursuant to Section 373.217, F.S. Additional clarification has been added to emphasize there is no attempt to transgress District authority. 

Excerpt from Section 1.5.D. “The County will use its land use authority under Chapter 163 F.S. to protect water resources, consistent with state law.”

Through enactment of section 373.217, Florida Statutes, the Legislature expressly preempted the entire field to regulate consumptive uses, including any impacts associated with water withdrawals, to the water management districts.” “While the proposed policies state the County’s intent to use its land use authority to implement the policies, it appears impossible to reconcile the preemptive authority of the District with the stated subject of the identified policies and the County land use authority. Therefore, the District respectfully requests the County delete these proposed policies from its draft comprehensive plan amendments.”

Policy:2.2D.3. Through its land use authority, under Chapter 163, the county shall assure water withdrawals ensure the impacts of development approvals do not diminish the water supply during the dry season for the Loxahatchee River and its associated wetlands.

Objective 2.2E. Within the limits of state law, Martin County shall use its land use authority to protect the freshwater aquifer.

Policy:2.2E.1. Seasonal water tables shall be preserved and protected. Water withdrawals from the aquifer shall not be allowed to change normal seasonal variation of wetland water levels. The County will use its land use authority under Chapter 163 to implement this policy.

The three proposed sections of text have been revised to refer more clearly to regulating

development activity as a means of protecting the water supply. Additionally, Section 1.3., has been revised to include the following: The CGMP shall have the maximum legal status not inconsistent consistent with Florida law as provided for in F.S. Chapter 163, as amended, and all land development shall be consistent with this Plan. The requirements of this Plan shall not be interpreted or applied in a manner inconsistent with state law.

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FDACS provided the following comments on policies that may impact a statewide resource.

FDACS COMMENT: Section 1.10, definition of Development.

“The clearing of native vegetation on lands classified as agricultural when conducted in accordance with FDACS adopted best management practices is a normal and customary agricultural activity and is exempt from local regulation. The inclusion of the phrase ‘clearing of native vegetation’ in the definition of development is inconsistent with the binding statutory definition of development found in section 380.04, Florida Statutes, which is the same definition used in chapter 163, Florida Statutes. Agricultural practices are specifically included as an exemption from the definition of development found in section 380.04(3)(e).

STAFF RESPONSE: The words “clearing of native vegetation” have been removed from Section 1.10 and from the definition of development found in Chapter 2. 

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FDACS COMMENT:  Section 2.4 Definition (43) definition of Development. 

STAFF RESPONSE:  Definition (43) has been revised to remove the words “clearing of native vegetation.” 

The following quoted policy is found in Chapter 9, Conservation and Open Space and has been found consistent with F.S. previously. 

“Policy 9.1A.8. Land clearing. Land clearing shall not be permitted in unincorporated Martin County until a permit is obtained and posted. A land clearing permit shall not be issued until it has been determined that the project is exempt from the requirement for a permit or until a vegetative analysis as required herein has been approved by the County in association with applicable development review procedures. Land clearing shall not be allowed except as described in Policy 9.1G.11 or Policy 9.1A.9 unless a final site plan has been approved. For agricultural purposes, no land clearing shall begin until a vegetative analysis and a preserve area management plan (PAMP) have been approved by the County.”

The policy quoted above prevents the destruction of habitat prior to an environmental assessment. Though the words “clearing of native vegetation” are deleted from the proposed definition of development, the policy quoted above will remain along with the protection of native upland habitat and wetlands. Application of Policy 9.1A.8., Land Clearing, prevents the need to cite Policy 9.1G.2.(6), Violations, discussed in Item 11 below .

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FDACS COMMENT:  In policy 2.2A.1, the amendments propose to define “wetlands” and in policy 2.2A.5 proposed to issue notices of violation where wetlands have been altered. It is FDACS’ opinion that Martin County’s effort to define and delineate “wetlands” is expressly preempted by section 373.421, Florida Statutes.

STAFF RESPONSE:  As discussed in Items 5 and 6 above, staff is currently working on a resolution to this issue.

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FDACS COMMENT: Further, policy 2.2A.5 proposes to subject agricultural land owners to enforcement action if evidence of drainage or land clearing has occurred after 1982. This policy is clearly inconsistent with the Florida Legislature’s intent expressed in Section 403.927, Florida Statutes, which reserve the regulation of agricultural water management systems, including those that impact wetlands, to the water management districts.

STAFF RESPONSE:  As discussed in Item No. 4, the requirement in Policy 2.2A.5 is not new. Similar language is found in Policy 9.1G.2.(6), CGMP, and has been there for decades. Policy 2.2A.5. has been revised to match the following text.

Policy 9.1G.2.(6), CGMP. “Violations. Where evidence indicates that drainage, clearing or other development or manmade impacts have taken place since April 1, 1982, in violation of applicable wetland development restrictions in effect at the time the violation occurred, restoration shall be required before any development permits or orders are issued, or within 90 days after receiving a notice of violation. A minimum two year letter of credit or other acceptable financial alternative must be submitted to assure the successful restoration of the violation.” 

In commenting on proposed Martin County text, the FDACS comment cites Section 403.927, F.S. and raises the issue of wetland impacts permitted for agricultural purposes. Section 403.927(4) states:

“(4) As used in this section, the term: 

(a) “Agricultural activities” includes all necessary farming and forestry operations which are normal and customary for the area, such as site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, cultivating, harvesting, fallowing, leveling, construction of access roads, placement of bridges and culverts, and implementation of best management practices adopted by the Department of Agriculture and Consumer Services or practice standards adopted by the United States Department of Agriculture’s Natural Resources Conservation Service, provided such operations are not for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands. 

(b) “Agricultural water management systems” means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter.” 

Staff agrees that the Legislature has clearly preempted local governments from defining the term “wetland” and that the Legislature has given the water management districts permitting authority over the use of water in farming. However, the text cited does not preempt local government from protecting wetlands, as that term is defined in State Statute.

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FDACS COMMENT: “Objective 2.4D. and policies 2.4D.1-3 and 4.1D.6.a.7 proposed to condition the approval of a proposed urban development on the reclassification of agricultural lands as nonagricultural regardless of the current use of the land. FDACS asserts that the proposed amendments violate section 193.461 Florida statutes.

STAFF RESPONSE: Objective 2.4D. and Policies 2.4D.1 thru 3 have been relocated and revised as Policy 2.4A.5. 

Urban development, as defined in Chapter 2, is largely not permitted outside of the Primary amendments violate section 193.461, Florida Statutes. “ Urban Service District. This policy will have no effect on the vast majority of land in Martin County. It will be most applicable to the remaining vacant lands inside the Primary Urban Service District. 

Where the policy is applicable, the proposed text does not prevent any property owner from seeking and obtaining an agricultural classification (inside or outside the Primary Urban Service District) pursuant to Section 193.461. 

The proposed text also does not permit the Board of County Commissioners to remove an agricultural tax classification issued by the Property Appraiser, pursuant to Section 193.461. 

The proposed text only permits the Board of County Commissioners to rescind a development order or a comprehensive plan amendment for urban development.

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FDACS COMMENT: “Martin County, in proposed amendment section 1.5.D, and in policies 2.2D.3 and 2.2E.1, seeks to insert itself into water supply and water restoration activities for which it has no authority.” “FDACS recognizes the county’s property motivation to control density and placement of land uses in order to promote wetland and water protection. However, the current proposed language overreaches into areas regulated other state entities.”

STAFF RESPONSE: The SFWMD also commented on the same three portions of proposed text. See the response in Item No. 7 above. FDACS has correctly recognized Martin County has the responsibility to control density and placement of land uses to promote wetland and water protection. Martin County is not attempting to overreach and regulate pursuant to Section 373.217, F.S. 

The three proposed sections of text have been revised to refer more clearly to regulating development activity as a means of protecting the water supply.

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TCRPC provided the following comments and recommendations.

TCRPC COMMENT: “Many of the goals, objectives, and policies added to Chapter 2 duplicate similar goals, objectives, and policies in other elements of the plan. It may be confusing to have essentially the same text appear in two different places in the plan. The county should consider simplifying the plan to make it easier to understand by eliminating duplicate language.”

STAFF RESPONSE:  Adding Overall Goals, Objectives and Policies in Chapter 2 allows the reader to see the overall intent of the Plan without reading each chapter. The TCRPC did not identify this comment as creating an adverse impact to significant regional resources and facilities.

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TCRPC COMMENT: Policy 4.1D.5 discusses planning for the orderly expansion of the urban service district. “However, the term ‘orderly expansion’ is not defined in Chapter 2 – Definitions, which would result in several interpretations of how expansion should proceed, including sprawling forms or patters of development which would be inconsistent and discouraged by the SRPP.”

STAFF RESPONSE:  Policy 4.7C.2 has been revised to describe an Orderly Expansion. The TCRPC did not identify this comment as creating an adverse impact to significant regional resources and facilities.

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TCRPC COMMENT: One impediment to redevelopment of waterfront areas within a CRA may be Policy2.2C.9, which requires setbacks from the water or shoreline protection zones (SPZs) and restrictions with some limited exceptions. The county may want to consider additional exceptions to the SPZs within the CRAs where it could be demonstrated the exception would not increase negative impacts to the St. Lucie River, St. Lucie Estuary, and Indian River Lagoon by increasing runoff volume or peak inflows, increasing nutrients, or adding toxic pollutants, consistent with Proposed Section 1.11.D.(6)(d)1) in Chapter 1.”

STAFF RESPONSE:  The Board recently initiated an amendment to Chapters 8 and 9 where this subject can be considered in detail. The TCRPC did not identify this comment as creating an adverse impact to significant regional resources and facilities.

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