An Inventory of Conservation Easements in Bay County, Florida

99 Pages·2005·29.79 MB·English

An Inventory of Conservation Easements in Bay
County, Florida

Dolphin Bay – Sunteck Conservation Easement
Photograph by Neil Lamb

Prepared by:

Neil J. Lamb, Ph.D. Edwin J. Keppner, Ph.D.
Co-Chair Conservation Committee and Conservation Committee
Bay County Audubon Society Bay County Audubon Society

For: The Bay County Audubon Society, Inc.

December 2004
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Acknowledgements

This work could not have been accomplished without the cooperation and support of a number
of people and agencies. The authors wish to extend sincere appreciation to the Board of
Directors of the Bay County Audubon Society, Inc. and the St. Joe Community Foundation for
supporting this effort. We also thank and appreciate the efforts of Mr. Henry Hernandez and the
personnel of the Panama City Office of the Florida Department of Environmental Protection and
Mr. Kevin O’Kane and the personnel of the U.S. Army Corps of Engineers Panama City
Regulatory Office for making their files containing conservation easements available for this
project. We also thank the City of Panama City (Mr. Neil Fravel), City of Lynn Haven (Ms.
Lisa Fowler), City of Panama City Beach (Mr. Charles Silky), and the Bay County
Environmental Coordinator (Mr. Larry Hawks) for their cooperation in finding conservation
easements within their areas of responsibility. We thank Mr. James Slonina of Panhandle
Engineering who kindly provided the information regarding the conservation easements at Wild
Heron. We thank Ms. Wendy Gierhart of the U.S. Fish and Wildlife Service and Mr. Chris
Caird of Bay County GIS Department for answering questions regarding the GIS aspects of this
work and Ms. Lydia Ambrose of Bay County GIS Department for providing basic GIS data for
Bay County. We thank the St. Joe Company for kindly providing the West Bay and special
permit GIS layers. Appreciation is also extended to Ms. Lisa Keppner, Ms. Susan Lamb, and
Mr. John Benton, President of the Bay County Audubon Society, and Ms. Marsha Benton, Bay
County Audubon Society, for their review of the report.

Preface

The Bay County Audubon Society was founded in 1962 and is a local chapter of the National
Audubon Society and Audubon of Florida. The motto of the Bay County Audubon Society is
“From birding to the total environment.” Among the goals of the Society are the increase of
citizen awareness and appreciation for wildlife and the natural habitat upon which it depends.
The Conservation Committee of the Bay County Audubon Society monitors activities in the
county that may have an effect on the environment of the county and the St. Andrew Bay
ecosystem, informs the Society of such activities, and proposes actions for discussion by the
Society.

In 2004, the Bay County Audubon Society received a grant in support of its activities from The
St. Joe Community Foundation. As members of the Conservation Committee, the authors
sought and received support for this project from the Board of Directors of the Bay County
Audubon Society with approval of the St. Joe Community Foundation. The authors are citizen
volunteers and received no compensation for the time and effort expended to complete this
inventory.

There are many aspects to the process of planning for development including the issuance of
permits for the alteration of wetlands by state agencies, federal agencies, and compliance with
the land use codes developed by local governments. One of the aspects of this process of
development is the possible granting of conservation easements as mitigation for the issuance of
permits for alteration of land and water by development interests. As such, the conservation
easements used as mitigation become important in the process of planning for the maintenance
of a functioning St. Andrew Bay ecosystem and its estuary, St. Andrew Bay. It is hoped that
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this inventory of conservation easements will encourage regulatory agencies to examine the
possibility of using conservation easements in a planned manner to benefit the ecosystem and
estuary as the development of Bay County proceeds.

This is an inventory, and there is little information or analysis provided that is original.
However, for the first time, this information is brought together in one place, and, by doing so,
provides another method of viewing the use of conservation easements in regulatory and
planning programs. The authors believe that the conservation easement program of our
regulatory agencies is valuable, but it can be of greater value if basic knowledge of ecosystem
function and large scale planning can be emphasized to the maximum degree within the
constraints of each program.

This inventory began as an examination of the conservation easements held primarily by the
Florida Department of Environmental Protection. However, as is often the case, it assumed a
life of its own by presenting more and more avenues of government conservation easements to
explore. We have attempted to remain focused primarily on the wetland permit related
easements, but we found it interesting and pertinent to examine some of the other conservation
easements held by non-regulatory government agencies and the private sector. Finally, we have
attempted to provide meaningful recommendations to assist in the continuing development of a
conservation easement program that provides maximum benefits to the St. Andrew Bay
ecosystem.

We expect that experts in the fields of planning and geographical information systems and other
professionals will manipulate and modify the database and files for their own use. The authors
would appreciate and benefit from input regarding the use and manipulation of the database and
from any suggested improvements that may be made to it or the shapefiles.

The information provided herein is intended for use by interested individuals. It would be
greatly appreciated if the users would acknowledge the source of the information as this
document prepared for the Bay County Audubon Society. A recommended citation is: Lamb,

Neil J. and Keppner, Edwin J. 2004. An Inventory of Conservation Easements in Bay County,
Florida. Report to the Bay County Audubon Society, Bay County, Florida. 24 pages + Figures +
Appendix.

Neil J. Lamb, Ph.D.
Edwin J. Keppner, Ph.D.
December 2004
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Table of Contents

Introduction ……………………………………………………………………………… 6

Optional Sector Plan and Other Advanced Planning Activities …………………….....6

Mitigation ...................................................……………………………………………7

Conservation Easements ……………………………………………………………… 8

DEP and COE Conservation Easements ………………………………………………9

Standard Language in DEP Conservation Easements ..………………………………. 9

Purpose …………………………………………………………………………………..10

Overview of Bay County and the St. Andrew Bay Ecosystem ……..………………...10

Ecosystem Management Plans and Inventories ……………………………………….11

Fragmentation of the Ecosystem and Conservation Easements ………………………12

Noah’s Ark ....................................................................................................................12

Conservation Easements and the Comprehensive Plan ……………………………….13

Summary ………………………………………………………………………………14

Materials and Methods ………………………………………………………………….. 14

Results and Discussion ………………………………………………………………….. 15

DEP and COE Conservation Easements ..……………………………………………. 16

Distribution of Conservation Easements .……………………………………..............17

Conservation Easement Placement Strategy ………………………………………… 18

Other Holders of Conservation Land and Easements ………………………………….. 18

Federal Government Land …………………………………………………………... 18

State Government Land ……………………………………………………………... 19

Local Government Land ….…………………………………………………………. 20

Utility Easements …..………………………………………………………………... 21

General Discussion and Comments ……………………………………………………. 21
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On-site Conservation Easements ……………………………………………………. 21

Off-site Conservation Easements …………………………………………………….22

Violations of Conservation Easements ..…………………………………………….. 23

Created Wetlands on Conservation Easements ………………………………........... 23

Conservation Easement Signs ………………………………………………………...23

Monitoring of Conservation Easements ……………………………………………...23

Conservation Easements as Habitat for Plants and Animals …………………………... 24

Recommendations ……………………………………………………………………… 24

Literature Cited ………………………………………………………………………… 26

Text Figures (Figures 1 - 17)…………………………………………………………… 28

Table 1. Conservation Easements..................................................................................... 46

Ground Level Photographs…………………………………………………………....... 51
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Introduction

Bay County, Florida, is experiencing a rate of growth unprecedented in its history, and this
growth is occurring throughout the entire county. The great majority of the land in Bay County
is owned by three companies that have used the land primarily for growing pine trees for the
paper industry until recently. The St. Joe Company owns about 50% of the land in the county,
and other large tracts of land in eastern and northern Bay County are owned by two other
companies, Great Eastern and the Profundus Group.

Great Eastern has offered to sell approximately 35,000 acres in Bay County to the State of
Florida. Florida has placed the purchase of the Bay County portion of the land (about 35,000
acres) and the remainder of Great Eastern’s holdings in Gulf and Calhoun Counties on its list for
purchase. However, even though it is listed for purchase, there is no assurance that Florida will
purchase the land for conservation purposes. A private company or organization could purchase
the land before the state can take action. This has happened in the past in Bay County, and
development has occurred on the property purchased by private interests. If the Great Eastern
holdings are not purchased by the State of Florida, the area will offer an excellent place for
planning for the location of conservation easements resulting from dredge and fill permits
necessary to develop this land in the most ecologically beneficial manner. Profundus Group
appears to be content, for the time being, with the use of its land in Bay County for silviculture.
However, few people thought that Great Eastern would offer their land for sale, and Profundus
could embark on the same path at any time.

The St. Joe Company has shifted its interests from the growing of pine trees to developing or
selling the land that it owns for development, mitigation purposes, and/or conservation. This
places many thousands of acres of the ecosystem into the local, state, and federal processes that
regulate or plan for development. The St. Joe Company’s shift toward development in Bay
County was initially directed at the northwest part of the county north of West Bay (Figure 1).

Optional Sector Plan and Other Advanced Planning Activities. The Bay County Board of
County Commissioners, the local airport authority, and the St. Joe Company agreed to use the
Optional Sector planning process as a method of planning development for the approximately
75,000 acres of land north of West Bay. If brought to a successful conclusion, the Optional
Sector planning process will result in about 40,000 acres of land around West Bay being used
for mitigation for development in wetlands and for preservation purposes. In the southwestern
part of Bay County, the St. Joe Company has cooperated with the U.S. Army Corps of
Engineers (COE) in developing a Regional General Permit (RGP) and the Florida Department
of Environmental Protection (DEP) in developing an Ecosystem Management Permit (EMP) for
development in wetlands extending from Highway 79 westward into Walton County. If issued,
these two regulatory permits will place an additional approximately 7,200 acres of land as
mitigation land or preservation land in the southwestern part of Bay County. According to the
COE, these preserved lands will be the subject of DEP conservation easements as the phases of
the permits are initiated and/or completed. The process of the permits phases is not important
here. The fact that there will be DEP conservation easements placed on these properties is
important. Figure 1 shows the areas along with some conservation easements included in this
survey.
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Lastly, the St. Joe Company has a development agreement with Bay County for their River
Camps project along West Bay from the west side of Crooked Creek to Highway 79 and south
of Highway 388. This area contains a large proportion of wetlands, and it is our understanding
that about 121 separate conservation easements have been placed on about 721.11 acres of this
area. A strip of land (buffer) along the western shore line of Crooked Creek is also involved as
a buffer for the creek. The Crooked Creek buffer will be about 550 feet wide and extend from
the mouth of the creek north to the bridge at Highway 388 with some incursions into the buffer
to be allowed. However, we were not able to determine the specific areas at River Camps that
will be subject to the conservation easements at the time of the preparation of this inventory.
Therefore, the conservation easements are included as a block of easements labeled River
Camps and designated as a single area by an information point. It is our understanding that the
conservation easements at River Camps will be placed on the designated land at some time in
the future as permits are issued and lot sales reach a certain number. Other conservation
easements that are not mapped in this survey due to insufficient current information are the
conservation easements for the Syfrett and Eubanks permits. Both of these permits were issued
in 2004, and the easements may not have been recorded at the time of the preparation of this
inventory. These two conservation easement areas are designated as a single information point
in the same manner as River Camps.

The remainder of Bay County has not been the subject of an Optional Sector planning process.
Therefore, development is occurring and will occur subject to the normal procedures of state,
federal, and local agencies with jurisdiction over proposed development. The normal
procedures evaluate development case by case rather than planning for a large area as occurred
during the Optional Sector Plan and the state and federal permits mentioned above.
Development requires changing the nature of the land, and in many instances, requires state
and/or federal permits for the alteration of wetlands within their jurisdiction and compliance
with local land use codes. The northeastern part of the county and the part of the county north
of East Bay are now prime areas for development.

Mitigation. The issuance of state and federal permits for wetland alterations often involves the
concept of mitigation to reduce the adverse impacts of the permitted alteration of the wetlands
of Bay County. Mitigation for wetland losses involves a hierarchy of consideration. First, of
course, is on-site mitigation to reduce the adverse impacts on wetlands at the actual site of
development. Off-site mitigation within the drainage basin that suffers the alteration of
wetlands is employed in those instances where the on-site mitigation is insufficient to
compensate for the wetlands to be altered or destroyed at the development site. Whether on-site
or off-site, restoration of wetlands lost to various previous activities is a priority mitigating
activity, followed by creation of wetlands, followed by enhancement of existing wetlands that
have been the subject of some alteration but remain wetlands. Preservation of wetlands and, in
too few instances, their adjacent ecotone and upland biotic communities, also plays a role in
mitigating wetlands to be altered or destroyed for development.

The effectiveness of preservation of wetlands as a mitigating action through conservation
easements depends most importantly on the size of the easement, the location in relation to other
easements or preserved land, the location in the ecosystem, the type of wetland, and the
inclusion of ecotones and upland buffers in the easements. Preferably and/or ideally, any
mitigating actions must be performed in the same subdrainage basin or at least in the same
ecosystem as the permitted alteration of wetlands. This inventory focuses on the conservation
easements obtained by state and federal agencies as a mitigating action for permitting the
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alteration of wetlands. The conservation easements are obtained by the state agencies pursuant
to the requirements of Section 403.918, Florida Statutes and Section 63-312, Florida
Administrative Code. Federal agency actions comply with the National Environmental Policy
Act, the Clean Water Act, and other federal statutes. The COE issues permits for the alteration
of waters of the United States and wetlands are included in Section 404 of the Clean Water Act
and Section 10 of the River and Harbors Act.

Conservation Easements. The following definition and description of conservation easements
is from Diehl and Barrett (1988). A conservation easement is a legal agreement a property
owner makes to restrict the amount of development that may take place on his or her property.
Each easement’s restrictions are tailored to a particular property and to the interests of the
individual owner. The ownership of a piece of property brings rights and responsibilities. The
owner may sell or give away all of the rights or some of those rights. The giving or selling of
certain of those rights such as the right to construct buildings or restrict access, etc. while
retaining other rights is accomplished by granting or selling an easement to another party. The
specific rights that a property owner foregoes when granting or selling a conservation easement
are detailed in each easement document. The property owner and the easement holder agree to
restrictions (what can and/or cannot be done on the property) in order to protect the property.
The owner gives to the easement holder the right to enforce the restrictions. The holder of a
conservation easement is usually a qualified conservation organization such as a public agency,
a land trust, or other qualified group with the means to enforce the restrictions of the easement.
The conditions of the easement may be altered with agreement of all parties involved in the
easement.

Another method of explaining conservation easements was provided by Alavalapati (2004) in a
cover letter to a survey of easements sent to selected landowners to determine their perceptions
and attitudes toward conservation easements. The letter stated that a conservation easement
(CE), is a voluntary legal agreement wherein a landowner agrees not to build houses,
apartments, shopping malls, etc. (i.e., not to develop the land in a specific way) over a specified
period of time in exchange for a payment and/or tax benefits. Like conservation land purchase
programs, CEs preserve environmental quality and control urban sprawl. However, CEs are
preferred over land purchases by conservation agencies since they cost less (since only the
rights and not the land are being purchased) and lands do not need to be managed by the agency.

CEs are ideal for landowners who want to keep land in its current use (e.g., farming, ranching,
recreation, forestry). This is because they do not want to develop their land anyway and are
getting paid. On the other hand, CEs are not appropriate for landowners who desire flexibility
in terms of future use of their land. This is because CEs restrict land use (particularly for
potentially high-valued development) and require periodic monitoring for compliance (i.e., land
remains undeveloped).

The characteristics of CE agreements provided by Alavalapati (2004) include:

In Florida, CE agreements in perpetuity mean that they last forever. That is, they are
not short-term arrangements and cannot be discontinued. Once a CE agreement is
established, the information is included on the deed and the land can never be
developed.

CE agreements lower estate and property taxes.
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CE agreements are transferable assets so they can be transferred. For example, if you
sell a CE to the State of Florida, the state has the option to transfer ownership to
another organization (e.g., The Florida Land Trust or the Trust for Public Lands). The
owner of the CE has the right and responsibility to ensure that you do not violate the
terms of your agreement.

CE prices typically range from 25% to 75% of the current land value.

DEP and COE Conservation Easements. This inventory examines the conservation easements
held primarily by regulatory agencies. First and foremost are those conservation easements held
by the Florida Department of Environmental Protection (DEP) and the U.S. Army Corps of
Engineers (COE). These easements have been negotiated as part of the DEP or COE process for
issuing permits for the alteration or destruction of wetlands by dredging or placement of fill in
wetlands. The easements serve as partial or complete mitigating actions to compensate for the
wetlands permitted for alteration.

Although the regulatory conservation easements appear to take various forms on paper, they all
appear to have in common the condition that the property under easement be retained in
perpetuity in its natural vegetative and hydrological condition at the time of the execution of the
easement. However, some of the easements are executed with conditions that wetlands will be
restored, enhanced, or created on the easement. Although the conditions of the easements can
be changed by agreement of all parties involved, we assume, for the purposes of this document,
that any agreed alterations of the easement will not violate the mitigating purpose of the
easement.

Standard Language in DEP Conservation Easements. About eight standard restrictions and
conditions are included in DEP and COE environmental protection conservation easement
deeds. The conservation easements can be adjusted with specific language above and beyond
the standard eight restrictions listed below. However, when the conservation easements are
negotiated as mitigation for wetland impacts, these are usually the minimum standards. One
should note that the conditions stated below are taken from a DEP document and are those
activities that are prohibited.

It is the purpose and intent of this Conservation Easement to assure that the subject
lands (with the exception of included wetlands which are to be enhanced or created as
specified in the permit) will be retained and maintained forever predominantly in the
natural vegetative and hydrologic condition existing at the time of execution of this
Conservation Easement.

Except for such activities as authorized within the permit, the following activities are
prohibited on property subject to this Conservation Easement:

1. Construction or placing of buildings, roads, signs, billboards, or other advertising,
utilities, or other structure on or above ground;

2. Dumping or placing of soil or other substances or material as land fill, or dumping
or placing of trash, waste, or unsightly or offensive materials;
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3. Removal or destruction of trees, shrubs, or other vegetation, with exception of
nuisance and/or exotic plant species, as may be required by DEP;

4. Excavation, dredging, or removal of loam, peat, gravel, soil, rock, or other material
substances in such a manner as to affect the surface;

5. Surface use except for purposes that permit the land or water area to remain
predominantly in its natural condition;

6. Activities detrimental to drainage, flood control, water conservation, erosion control,
soil conservation, or fish and wildlife habitat preservation;

7. Acts or uses detrimental to such aforementioned retention and maintenance of land
or water areas; and

8. Acts detrimental to the preservation of any features or aspects of the property having
historical, archaeological or cultural significance.

The conservation easements held by the municipalities appear comparable to the documents
prepared for the DEP conservation easement.

Purpose

The purpose of this work was to locate and map the land within Bay County, Florida, that is
subject to conservation easements. The primary effort was directed at DEP and COE held
conservation easements, because they appear to be the most abundant and are directed at
preserving the land for its natural characteristics, particularly its wetland classification.
Additional easements held as conservation land by Bay County, by the municipalities within the
county, or by private organizations are included where appropriate. Ground level photographs
were taken of a number of the conservation easements to initiate a monitoring program to track
the status of each easement through time.

The ultimate purpose of this inventory is to provide state and federal agencies, local
governments, and the citizens of Bay County with a ready reference and expandable database of
conservation easements established in the county. This information should be useful for
planning purposes involving all aspects of the development of our ecosystem such as local
comprehensive planning, zoning, planning for the maximization of mitigating actions through
the use of conservation easements, flood control plans, etc. Use and improvement of the
database by experts in the fields of planning and geographical information systems in each
agency and/or organization are encouraged by the authors.

Overview of Bay County and the St. Andrew Bay Ecosystem

Bay County is located at the heart of the St. Andrew Bay drainage basin (= ecosystem) and
accounts for about 66% of the total area of the drainage basin (= ecosystem). The ecosystem
includes about 1100 square miles of land and water, and the entire tidally influenced estuarine
(St. Andrew Bay) part of the drainage basin is located in Bay County (Figure 2). The ecosystem
(drainage basin) also includes small areas in Washington, Jackson, Calhoun, and Walton