Subject:
Title
Consideration and Approval of Proposed Consent Order Issued by Florida Department of Environmental Protection (FDEP) Regarding Certain Activities Conducted by the County to Improve Drainage within the Pelican Creek Outfall/Old Causeway Outfall (the Old Causeway Outfall ditch) (District 2)
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Fiscal Impact:
Estimated $100,000.00. Costs associated with restoration actions, maintenance for duration of consent order, and potential re-planting of mangroves in designated areas, as needed. If the consent order is not approved by the Board, the County is likely to incur costs associated with defending against the enforcement action if initiated by FDEP and the risk of incurring potential fines and costs for completing, at a minimum, the restoration actions, maintenance, and re-plantings identified above.
Dept/Office:
Public Works
Requested Action:
Recommendation
It is requested that the Board of County Commissioners consider and approve the proposed consent order issued by FDEP and authorize the Public Works Department Director to sign the consent order and any necessary amendments or related documents thereto, subject to review and approval by the County Attorney’s Office and Risk Management.
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Summary Explanation and Background:
The Mangrove Trimming and Protection Act (Sections 403.9321 - 403.9333, Florida Statutes) establishes standards and criteria for trimming and/or altering mangroves. Failure to adhere to these standards can result in FDEP issuing a notice of violation, which can lead to enforcement action and civil penalties. As an alternative to enforcement action, FDEP and a respondent may enter a consent order effectively operating as a stipulated settlement agreement, allowing the respondent to address the allegations and avoid additional penalties and fines if the necessary work is completed in accordance with the terms and conditions of the consent order.
In this case, the County conducted certain maintenance activities along the Old Causeway Outfall ditch to improve drainage, reduce the risk of flooding to adjacent homeowners, and improve the flow of stormwater in the area back in Summer 2022. While attempting to complete this necessary work, the County inadvertently exceeded the allowable level of impacts to mangroves, although it was consistent with past authorized work. Making matters worse for the County, several property owners in the area took advantage of the County’s maintenance project to further degrade the area by dredging out land, making a navigable channel and creating boat docks for their own purposes, effectively preventing the remaining mangroves from being able to repopulate. For reference, the property owners came before the Board of County Commissioners on November 12, 2024, seeking a public interest determination to allow them to obtain after-the-fact approval for the unpermitted dredging they conducted that destroyed environmentally sensitive areas, including wetlands. The Board denied the request, at least in part, due to the fact that the unpermitted activities were (are) not consistent with the County’s Comprehensive Plan. The County is pursuing code enforcement action(s) against the property owners. It is County staff’s position that the mangroves in the area that was ultimately dredged by these property owners would have naturally recruited and the County’s responsibilities under the consent order would have been limited.
Following a significant number of emails, meetings, and phone calls with FDEP, the County was able to work the proposed consent order into its final draft form. Key takeaways of the proposed consent order are as follows:
1. The County is responsible for removing invasive/nuisance vegetation in specified areas.
2. The County shall be permitted one (1) year from the effective date of the proposed consent order to allow natural recruitment of mangroves in specified areas (Restoration Areas A and B - north of the dredged area) with the goal of obtaining 80% aerial coverage of mangroves. If the 80% threshold is met, then the County will be relieved of its corresponding obligations under the consent order. If the 80% threshold is not met, then the County will be responsible for re-planting mangroves as necessary in accordance with a plan approved by FDEP.
3. The County shall not be responsible for any obligations within the area dredged by the property owners, but if the dredged area is restored then the County shall be responsible for re-planting mangroves in that area in accordance with a plan that has been agreed to between the County and FDEP. The County intends to hold the responsible property owners accountable for their impacts and is pursuing restoration plans through the County’s Code Enforcement process to address such violations of the Brevard County Code.
4. If a property owner denies the County access to complete its restoration and/or maintenance obligations, then the County shall be relieved of its corresponding responsibilities under the consent order.
If the Board decides not to accept the terms of this proposed consent order, then FDEP is likely to proceed with an enforcement action, which could result in greater financial and legal exposure if found to be in violation of the Mangrove Trimming and Protection Act.
Clerk to the Board Instructions:
Provide the associated Clerk’s memo outlining the Board’s action to Marc Bernath, Public Works Director.