Policy background for Harbour Pointe on Captiva Island
December 2006 SCCF Member Update:
Late breaking news! As we go to press we have just received
the Recommended Order issued by the Administrative Law Judge in our challenge
of the South Florida Water Management District permit issued for Harbour
Pointe. The judge recommends the permit be Denied!
The judge found that Plantation Development, LLC failed to eliminate and reduce
impacts, as required in the State permitting criteria, in what he found to be
very high quality and important mangroves. This ruling confirms our contention
that the District did not follow their own rules in the review of this project.
The next step is for the South Florida Water Management District Governing
Board to review the judge's Recommended Order and make a decision on the
permit. Their options include: 1) adopt the finding of the Administrative Law
Judge and deny the permit (revoke approval); or 2) support the District's
previous permit approval; or 3) the applicant can change their application and
resubmit a revised plan to the District. In addition to the District permit the
project requires permits from Lee County and the Army Corps of Engineers. The
Water Management District decision will affect the other permits so there are
several steps remaining before anything is finalized.
This decision is an important victory for mangrove wetlands. It is a sad
commentary that three non-profit organizations have had to spend their precious
resources to defend the public interest in the preservation of natural
resources that the Water Management District is charged to protect. This may
only be the beginning of the fight but it is a Victory!
Thanks to the Captiva Civic Association for remaining steadfast on the
protection of our coastal resources, the Conservancy of Southwest Florida for
joining our challenge, our expert team of attorneys and scientists, individuals
and organizations pulling together to speak for the resources that have no
voice.
November 2006 SCCF Member Update:
The Foundation has been actively involved in an effort to protect three acres
of black mangrove forest wetlands from development at South Seas Resort on
Captiva Island. The effort began last year with a three-day hearing before a
Lee County Hearing Examiner on a project called Harbour Pointe, a 78-acre
peninsula of mangrove wetlands east of the main resort.
In 1985 South Seas Plantation was issued a South Florida Water Management
District (SFWMD) permit for construction of eighteen 600-square-foot hotel
units on the one acre upland spoil area at the northern tip of the peninsula.
In that permit, no wetland impacts were approved and the permit expired in 1990
before any construction was initiated. In 2005 Plantation Development applied
to the County to build 24 luxury units of 4,000+ sf over five acres of mangrove
wetlands.
The Foundation partnered with the Captiva Civic Association and other
environmental groups to object to the County approval. The Lee County Hearing
Examiner agreed with our position and recommended that unit size be reduced so
that wetland impacts were reduced to a total of 1.15 acres. In early 2006 the
SFWMD permitted a modified project design with three acres of mangrove impacts.
Our objections to the issuance of the Water Management District permit were
based on the fact that the review was not done in accordance with the
District's own guidelines for permit issuance which requires consideration of
design alternatives to reduce or eliminate impacts on water quality and fish
and wildlife resources.
Our objection was heard in a week-long administrative hearing in July. As of
this writing we are awaiting the findings of the Administrative Law Judge. Stay
tuned!
September 2006 SCCF Member Update:
Since early 2005, Conservation Foundation staff has been involved in a public
policy effort to protect three acres of black mangrove forest wetlands from
development at South Seas Resort. This work has been significantly accelerated
since our last newsletter, so we thought an update would be of interest to our
members. This policy effort began last year at the County level with a
three-day hearing before a Lee County Hearing Examiner on a project proposed by
Plantation Development, LLC (PDL), called Harbour Pointe. The land is a 78-acre
peninsula of mangrove wetlands located in South Seas Resort on Captiva Island.
Efforts to develop this black mangrove forest area on the north end of Captiva
have been going on for five decades. This is a brief summary of this issue over
the last two years.
In 2004, a comprehensive plan amendment was submitted to Lee County by the
citizens of Captiva through the Captiva Community Panel, seeking the protection
and maintenance of mangroves on Captiva Island to the greatest extent possible.
At that same time, Plantation Development LLC (PDL) filed an application with
Lee County to construct 24 large, 4,500 square foot luxury townhomes arranged
in quadraplexes, tennis courts and a swimming pool at Harbour Pointe, impacting
five acres of mangrove wetlands. The proposed mitigation for Harbour Pointe's
five acres of wetland impacts included 0.6 acres of mangrove replanting, a
conservation easement removing all density over 70 acres of mangrove wetlands
buying mitigation credits owned by some of the same principals as Plantation
Development, LLC.
In 2005, when Lee County staff recommended approval of the project, the
Conservation Foundation partnered with the Captiva Civic Association (CCA) and
other environmental groups to object to the project. The Lee County Hearing
Examiner agreed with our position that staff and PDL had not followed the Lee
planning policy that directs every reasonable effort be made to minimize
impacts. The hearing examiner recommended that unit size be reduced so that
only 1.15 acres be affected, rather than five acres PDL proposed. At the same
time, because the county defers to the state on wetland issues, PDL applied to
the South Florida Water Management District to get the additional alteration of
wetlands approved. The South Florida Water Management District issued a permit
to impact 3.09 acres over the objections of the Conservation Foundation, the
Captiva Civic Association, the Conservancy of Southwest Florida, the
Responsible Growth Management Coalition, other environmental groups, and
residents. Our objections were based on the fact that the review was not done
in accordance with the District's own guidelines for permit issuance. Those
guidelines include a permitting goal of no net loss of wetlands and a series of
environmental standards to prevent adverse impacts.This project must meet a
higher standard of public interest because it is flushed by and would drain
into Outstanding Florida Waters of the Pine Island Sound Aquatic Preserve.
Once the Water Management District issued the permit, the only way to object
was to file for an Administrative Hearing before an administrative law judge.
The Conservation Foundation and the CCA filed as co-petitioners, with the
Conservancy of Southwest Florida joining the suit as an intervener. Once the
challenge was filed things got busy. Depositions were taken, experts were hired
and preparation began for the State hearing that took place the full week of
July 24-28, 2006. The petitioners were well represented by a legal team
including Richard Grosso and Robert Hartsell of the Everglades Law Center and
Gary Davis, representing the Intervener. The days were long and the nights,
preparing for the next day's testimony, were longer. Erick Lindblad, Kristie
Anders, and Rae Ann Wessel of the Conservation Foundation and Aquatic Ecologist
Dave Ceilley contributed many hours to hearing preparation as well as sworn
testimony.
Dr. Grant Gilmore, an internationally renowned researcher and expert on
mangroves and fisheries, helped the court to understand the real impact of this
project. Gilmore's research has shown that mangrove forest habitats located
adjacent to inlet passes, such as Redfish Pass, are critical resources for the nursery
and survival of many of our local game fish. According to Dr. Gilmore, fish
spawn just outside the pass and the spawn float into the pass settling in the
closest mangrove system available. To survive, they must quickly find shelter
in a mangrove system, thus making mangroves adjacent to passes much more
critical habitat than other locations. A decision from the judge on our case
contesting the issuance of the Water Management District permit should be
issued within four months. The judge's decision will be presented to the
Governing Board of the South Florida Water Management District, which could
decide to issue, modify, or deny the permit. After the decision by the Water
Management District Governing Board, the project must come back before the Lee
County staff and Board of County Commissioners. In addition the project will
require Federal permits from the Army Corps of Engineers. This application is
currently under review. The U.S. Environmental Protection Agency and National
Marine Fisheries Service have already filed letters of objection. Harbour
Pointe is far from being permitted.
The Conservation Foundation will continue to fight for the mangrove forests at
Harbour Pointe. The mangroves' value – to fish and wildlife, to water quality,
to public health, safety and welfare – is just too critical to give away. We
are so pleased the Conservation Foundation has the critical resources and
expertise necessary to challenge this mangrove destruction.