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Item I2BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 15, 2013 Division: Growth Management Bulk Item: Yes _ No X Staff Contact Person/Phone #: Christine Hurley 289-2517 AGENDA ITEM WORDING: Discussion regarding the Key Largo Wastewater Treatment District CR- 905 improvement project relative to the Coastal Barrier Resources System (CBRS) Unit #FL-35 and the expenditure of federal funds. ITEM BACKGROUND: In mid -November, 2012, staff received a media inquiry concerning whether the Key Largo Wastewater Treatment District (KLWTD) was expanding service along CR-905 and into a portion of CBRS Unit #FL-35. Growth Management staff has coordinated with KLWTD and determined they are extending sewer service into the CR-905 area which includes a portion of CBRS FL-35 Unit. The subject improvements include the installation of a force main within the CR-905 right of way (ROW) with branch lines in the ROW of the local subdivision streets being served. The individual homes to be served are to grant an easement to the KLWTD so that the KLWTD can then install a low pressure lift station and a small force main on the private lot within that easement. This lift station will be connected to the KLWTD's force mains. The individual lift stations and connecting force mains will be owned and maintained by the KLWTD even though they will be installed on private property (within the respective easements). The individual home owners will be responsible for connection of their sanitary sewage line to the KLWTD's low pressure lift station; the decommission of any existing onsite wastewater system (septic, aerobic, etc.); and running electric to the lift station. Home owners will need permits for the plumbing and electrical connections (2 separate permits). The County has adopted Comprehensive Plan Policies and Land Development Regulations which both discourage and prohibit the extension of utilities, including wastewater, to or through areas designated as units of the CBRS. (See Attachment A) Chapter 2008-291, Laws of Florida (see Attachment B), exempts KLWTD from County permitting (see legal opinion — Attachment Q however, as a result of the above referenced adopted Comprehensive Plan Policies and Land Development Regulations, the County cannot issue building permits (plumbing and electrical) to individual property owners in order to connect to the individual lift stations along CR-905, if the residences to be served are located within land designated as a unit of the CBRS. PREVIOUS RELEVANT BOCC ACTION: On December 12, 2012, the BOCC discussed the Key Largo Wastewater Treatment District (KLWTD) wastewater project, related to the expansion of service along CR-905 and into a portion of CBRS Unit #FL-35. At the BOCC meeting, the BOCC requested that KLWTD provide an analysis of their use of federal funds in the wastewater plant and if this prohibits them from extending the wastewater system to a CBRS unit. The KLWTD has submitted its legal interpretation, included as Attachment 1. Agenda item continued from the February 20, 2013 and Feb. 26, 2013 BOCC meetings to May 5, 2013. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: N/A TOTAL COST: INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: REVENUE PRODUCING: Yes No APPROVED BY: County Atty DOCUMENTATION: Included X DISPOSITION: SOURCE OF FUNDS: AMOUNT PER MONTH Year OMB/Purchasing Not Required Risk Management _ AGENDA ITEM # Attachment 1 Key Largo Wastewater Treatment District 98880 Overseas Highway — PO Box 491 Key Largo, FL 33037 305-451-4019 Email message sent on: January 17, 2013 From: Ray Giglio General Counsel To: Margaret Blank General Manager Re: Use of Non -Federal Funds in CBRS areas QUESTION PRESENTED: Whether the Coastal Barrier Resources Act (CBRA) prohibits a non-federal entity like the KLWTD, which had received federal funds in the past, from expending any non-federal funds or doing any non -federally funded construction in a Coastal Barrier Resource System (CBRS) area? SHORT ANSWER: No. The Coastal Barrier Resources Act prohibits the Federal Government (and only the Federal Government) from making expenditures in CBRS areas. The CBRA does not prohibit a non-federal entity like the KLWTD from expending non-federal funds or doing any non -federally funded construction in a CBRS area —even if that entity has previously received federal funds. BACKGROUND: The KLWTD would like to provide central sewer service to existing homes on C-905 in North Key Largo. The current phase of that project consists of the installation of a force main within the C-905 right-of-way. No part of this C-905 project has utilized or will utilize any federal funds, either directly or indirectly. Page 1 of 4 FEDERAL FUNDS PREVIOUSLY RECEIVED: The KLWTD has previously received federal funding —principally from FEMA and the Army Corps of Engineers (ACE). In each case, this money was earmarked by the federal entity for specific projects related to the planning, design and construction of the KLWTD's regional wastewater treatment and collection facility. For example, in or about September of 2009, the KLWTD entered into an Agreement with ACE, which amended a January 11, 2008 Agreement between the parties, and which provided, inter alia, that: "The term `project" shall mean collectively all the following as generally described in the Decision Document for the Florida Keys Water Quality Improvement Program (FKWQIP) Regional Wastewater Treatment and Collection Facility Key Largo, Florida, dated October 4, 2005, and approved by the District Engineer, U.S. Army Corps of Engineers, Jacksonville District on September 26, 2007." That 2009 Agreement, like all the Agreements with FEMA and ACE, specifically listed the projects that ACE was funding, which projects were identified by basin and phase. For instance, the 2009 Agreement explicitly identified six projects, including the following: "1. A vacuum sewer collection system in Basin D — Phase 3 that will serve over 200 EDU's (Equivalent Dwelling Units). The project includes approximately 70 vacuum pits, one buffer tank, and 9599 linear feet of vacuum sewer collection mains and will encompass collection facilities in the following streets: La Paloma Road (South of Alhambra), Gibralter Road, Valencia Road, Alhambra Drive (East of Marid), Mahogany Drive (East of Oleander), First Lane (between La Paloma and Valencia), and Fourth Lane (between La Paloma and Valencia)." "6. A force main the length of US Highway 1 from MM 91 to MM 101 to transport wastewater collected in Basins F, G, H, I, J, and K to the treatment plant." Moreover, the Agreements between the KLWTD and ACE and FEMA contained no prohibition against the expenditure of any non-federal funds (or any funds for that matter) in CBRS areas by the KLWTD. However, as the Agreements specified where and how the money was to be spent, if the KLWTD had used any of federal funding for work in CBRS areas (instead of using it for the named projects), the KLWTD would have been in violation of its Agreement with the federal entity. At the present time, all of the projects funded by federal entities have been completed. All federal funding has been duly applied to those projects. Page 2 of 4 DISCUSSION OF THE COASTAL BARRIER RESOURSE ACT The Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq., which was enacted in 1982, designated various undeveloped coastal barrier islands for inclusion in the Coastal Barrier Resources System. With certain listed exceptions, designated areas were made ineligible for direct or indirect Federal financial assistance or expenditures that might support development, including flood insurance. That restriction on Federal assistance or expenditures within the CBRS is contained in § 3504 of the CBRA, which imposes "LIMITATIONS ON FEDERAL EXPENDITURES AFFECTING THE SYSTEM." The language (not to mention the title) of § 3504 clearly indicates that this is a restriction on "Federal Expenditures"—i.e. on expenditures by the Federal Government. Neither this section, nor any other section of Federal Law, restricts the Key Largo Wastewater Treatment District, Monroe County —or any non-federal entity —from expending funds on projects in the Coastal Barrier Resources System. Indeed, subsection (a) of § 3504 clearly indicates that, with certain exceptions, "...no new expenditures or new financial assistance may be made available under authority of any Federal law for any purpose within the Coastal Barrier Resources System...." [emphasis added]. Therefore, this section clearly limits or restricts only the Federal Government with respect to expenditures in the CBRS. It is worth noting that the statute does not, for example, say that no expenditures within the Coastal Barrier Resources System may be made by any entity which has received money or assistance from the Federal Government. On the contrary, the U.S. Fish and Wildlife Service (the Federal Agency responsible for administering CBRA) explains on its website that: "CBRA does not prevent development, and it imposes no restrictions on development conducted with non -Federal funds. Congress enacted CBRA to minimize the loss of human life, wasteful Federal expenditures, and the damage to natural resources associated with coastal barriers." (http://www. fws. gov/CBRA/Does/CBRAPropertyDetenninationsProcessFS.pdf) Moreover, § 3506 (b) ("Certification of compliance") requires that annually, "[t]he head of each Federal agency affected by this chapter shall report and certify that each such agency is in compliance with the provisions of this chapter." Significantly, it is not the non-federal entity (such as the KLWTD) receiving the federal funding that is required to "report and certify." It is the Federal agency that is making the grant or giving assistance that must "report and certify." I would argue that this is a further indication that the Act is intended to apply to (and to restrict) only the federal government with respect to the expenditure of federal funds in CBRS areas. Page 3 of 4 POSITION OF THE FISH AND WILDLIFE SERVICE: On December 23, 2012, I sent an email to Katie Niemi (Katie _Niemi@fws.gov), director of the Coastal Barrier Resources Act (CBRA) Division of the Division of Habitat and Resource Conservation of the U.S. Fish and Wildlife Service in Arlington, Virginia. In that email, I asked Ms. Niemi whether her office (or its attorneys) took the position that a non- federal entity, which has received money or assistance from the Federal Government, is in any way prohibited from expending any non-federal funds or doing any non -federally funded construction in a Coastal Barrier Resource System (CBRS) area. I laid out my analysis as stated above, and I asked her to contact me if she or her office's attorneys disagreed with that analysis. As of this date, I have not received any indication from FWS that they have any disagreement with my interpretation of the restrictions imposed by the CBRA. I therefore assume that my conclusions are consistent with those of FWS and with applicable statutory and case law. CONCLUSION: The Coastal Barrier Resources Act does not prohibit the KLWTD or any other entity which has received federal money or assistance from making expenditures in CBRS areas. The plain language of the CBRA suggests that it prohibits the Federal Government (and only the Federal Government) from making expenditures in CBRS areas Therefore, an entity such as the KLWTD is NOT prohibited from doing non -federally funded construction in CBRS areas just because it has previously received federal funding for its project. Very truly yours, Ray Giglio General Counsel Key Largo Wastewater Treatment District 98880 Overseas Hwy - PO Box 491 Key Largo, FL 33037 (305) 340-9198 ray. gi lg io(d)klwtd.com Page 4 of 4 December 12, 2012 BOARD OF COUNTY COMMISSIONERS Agenda Item K1 AGENDA ITEM SUMMARY Meeting Date: December 12, 2012 Division: Growth Mana ement Bulk Item: Yes No X Department: Planning & Environment Resources Staff/Contact: Christine Hurley (305) 289-2517 AGENDA ITEM WORDING: Discussion regarding the Key Largo Wastewater Treatment District CR- 905 improvement project relative to the Coastal Barrier Resources System (CBRS) Unit #FL-35. ITEM BACKGROUND: In mid -November, 2012, staff received a media inquiry concerning whether the Key Largo Wastewater Treatment District (KLWTD) was expanding service along CR-905 and into a portion of CBRS Unit #FL-35. Growth Management staff has coordinated with KLWTD and determined they are extending sewer service into the CR-905 area which includes a portion of CBRS FL-35 Unit. The subject improvements include the installation of a force main within the CR-905 right of way (ROW) with branch lines in the ROW of the local subdivision streets being served. The individual homes to be served are to grant an easement to the KLWTD so that the KLWTD can then install a low pressure lift station and a small force main on the private lot within that easement. This lift station will be connected to the KLWTD's force mains. The individual lift stations and connecting force mains will be owned and maintained by the KLWTD even though they will be installed on private property (within the respective easements). The individual home owners will be responsible for connection of their sanitary sewage line to the KLWTD's low pressure lift station; the decommission of any existing onsite wastewater system (septic, aerobic, etc.); and running electric to the lift station. Home owners will need permits for the plumbing and electrical connections (2 separate permits). The County has adopted Comprehensive Plan Policies and Land Development Regulations which both discourage and prohibit the extension of utilities, including wastewater, to or through areas designated as units of the CBRS. (See Attachment A) Chapter 2008-291, Laws of Florida (see Attachment B), exempts KLWTD from County permitting (see legal opinion — Attachment C); however, as a result of the above referenced adopted Comprehensive Plan Policies and Land Development Regulations, the County cannot issue building permits (plumbing and electrical) to individual property owners in order to connect to the individual lift stations along CR-905, if the residences to be served are located within land designated as a unit of the CBRS. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: None TOTAL COST: INDIRECT COST: BUDGETED: Yes No NA DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No N/A AMOUNT PER MONTH N/A Year APPROVED BY: County Atty DOCUMENTATION: Included DISPOSITION: OMB/Purchasing Risk Management _ X Not Required AGENDA ITEM # Attachment A Monroe County Adopted Comprehensive Plan Policies Policy 101.12.4 Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the alternative sites; and, 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and designated Tier I areas. Except for passive recreational facilities on publicly -owned land, no new public community or utility facility other than water distribution and sewer collection lines or pump/vacuum/lift stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all the following criteria are met: 1. No reasonable alternatives exist to the proposed location; and 2. The proposed location is approved by a supermajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allowed clearing of up to 4.2 acres shall not be subject to this policy. Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS). Policy 102.8.2 Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new bridges, new causeways, new paved roads or new commercial marinas to or on units of the Coastal Barrier Resources System (CBRS). Policy 102.8.3 By January 4, 1997, shoreline hardening structures, including seawalls, bulkheads, groins, rip -rap, etc., shall not be permitted along shorelines of CBRS units. Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. Policy 102.8.5 Monroe County shall [take] efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 103.2.10 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies.) GOAL 209 Monroe County shall discourage private land uses on its mainland, offshore islands and undeveloped coastal barriers, and shall protect existing conservation lands from adverse impacts associated with private land uses on adjoining lands. Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS). Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 502.1.5 Monroe County shall support a proposal to amend the Coastal Barrier Resources System Map adopted by the Coastal Barrier Improvement Act of 1990, to delete the improved port property along the Safe Harbor entrance channel from the system unit, FL 57. Policy 1301.7.12 By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resource Systems (CBRS) units. Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Monroe County Adopted Land Development Regulation Sec. 101-1. —Definitions Coastal Barrier Resources System (CBRS) means those 15 (CBRS) units in the county designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprising undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore waters. Sec. 130-122. - Coastal barrier resources system overlay district. (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collection systems; potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems. (Code 1979, § 9.5-258; Ord. No. 43-2001, § 1) CHAPTER 2008-291 Attachment B Council Substitute for House Bill No. 1231 An act relating to the Key Largo Wastewater Treatment District, Monroe County; amending chapter 2002-337, Laws of Florida; pro- viding that the district is not subject to local regulations governing discharge of effluent and is not obligated to obtain licenses, permits, or authorizations required by local regulating agencies; requiring the district to provide the county with a notice of development; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (6) is added to section 3 of section 1 of chapter 2002- 337, Laws of Florida, to read: Section 3. District; creation, jurisdiction, and purpose. — (6) The district shall comply with federal and state laws governing the construction and operation of its systems and the quality and manner of discharge of effluent but shall not be subject to local regulation over the quality and manner of discharge except as provided herein or to the extent development. The district shall provide Monroe County with a Notice of Intent to Proceed that includes a description of any planned development and identifies the property no later than 30 days prior to the installation or construction of wastewater infrastructure or related facilities. Section 2. This act shall take effect upon becoming a law. Approved by the Governor June 30, 2008. Filed in Office Secretary of State June 30, 2008. 1 CODING: Words stamen are deletions; words underlined are additions. Attachment C C UNTY SnFLORIDAONROE KEY WEST 33040 (305)294-4641 Robert B. Shillinger, County Attorney** Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney** Natileene W. Cassel, Assistant County Attorney** Cynthia L. Hall, Assistant County Attorney ** Christine Limbert-Barrows, Assistant County Attorney ** Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney Steven T. Williams, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law BOARD OF COUNTY COMMISSIONERS Mayor George Neugent, District 2 Mayor Pro Tem, Heather Carruthers, District 3 Danny L. Kolhage, District 1 David Rice, District 4 Sylvia J. Murphy, District 5 Office of the County Attorney 1111 12`h Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax To: Christine Hurley, Director, Growth Management Division Through: Robert B. Shillinger, County Attorney From: Lisa Granger, Assistant County Attorney Date: November 27, 2012 RE: Key Largo Wastewater Treatment District Proposed CR-905 Project QUESTION PRESENTED: Is the Key Largo Wastewater Treatment District (KLWTD) exempt from permitting regulations under the law and do certain individual property owners share that exemption? SHORT ANSWER: Yes, KLWTD is exempt from permitting regulations. However individual property owners are not exempt from permitting regulations. BACKGROUND: Under Chapter 2008-291, Laws of Florida, the legislature created an exemption from permitting obligations for KLWTD. While it is clear that KLWTD is exempt from permitting obligations, KLWTD "shall comply with the substantive regulations other than permitting of the appropriate local agency in effect at the time of district approval of the final plans for development." This means that KLWTD may have an obligation to comply with FEMA and FWS regulations. in the past, KLWTD did apply for and receive opinion letters from FWS. However, Chapter 2008-291, Laws of Florida, does not contain any language that exempts individual property owners from permitting regulations. As a result and pursuant to F.S. 381.00655(1)(a), the property owner must connect to the central sewer system within a definite number of days after the system is available. The definition of available as found in F.S. 381.0065 (2)(a), in pertinent part is "as applied to a publicly owned or investor -owned sewerage system, means that the publicly owned or investor - owned sewerage system is capable of being connected to the plumbing of an establishment or residence, is not under a Department of Environment Protection moratorium, and has adequate permitted capacity to accept the sewerage to be generated by the establishment or residence...." Also Monroe County Code (MCC) § 20- 51 states that property owners must connect within 30 days after written notification that the system is available for connection. CONCLUSION: Based upon the above background the KLWTD is exempt from permitting regulations. Based upon the above background and the requirements in the Florida Building Code and MCC Chapter 6 wherein plumbing and electric work requires permits, the individual property owners are required to apply for permits within 30 days of written notification that the system is available for connection and are not exempt from permitting regulations. DRAFT Letter County of Monroe Growth Management Division Plannine & Environmental Resources Department 2798 Overseas Highway, Suite 410 Marathon, FL 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 We strive to be caring, professional and fair November 27, 2012 Mrs. Margaret Blank, General Manager Key Largo Wastewater Treatment District Post Office Box 491 Key Largo, FL 33037 Re: Key Largo Wastewater Treatment District — CR-905 Pro iect Dear Mrs. Blank: Board of County Commissioners Mayor George Neugent, Dist. 2 Mayor Pro Tern Heather Carruthers, Dist. 3 Danny Kolhage, Dist. 1 David Rice, Dist. 4 Sylvia J. Murphy, Dist. 5 We appreciate your coordination efforts relative to the CR-905 improvement project, relative to the Coastal Barrier Resource System (CBRS) (see attachment 1). As we discussed the Growth Management Department was contacted by the press several weeks ago asking whether Key Largo Wastewater Treatment District (KLWTD) was extending wastewater infrastructure into a CBRS unit. We have subsequently been researching the details surrounding the improvements and the CBRS FL-35 unit. It is our understanding that the KLWTD service area is defined as the north end of the Florida Keys at the Dade County line (approximately: US 1 mile marker 124), extending south and westward to Tavernier Creek (approximately: US 1 mile marker 91) and including the properties to the east of US 1 along CR- 905 up to, but not including, the community of Ocean Reef. The area from mile marker 106.5 south to mile marker 91, are to be served by the central wastewater treatment plant located at mile marker 100.5. Additionally, your website indicates, the sparsely populated areas north and east of mile marker 106.5 would be served by a decentralized sewer system. It is our understanding, that the CR-905 improvements include the installation of a force main within the CR-905 right of way (ROW) with branch lines in the ROW of the local subdivision streets being served. The individual home owners will grant an easement to the KLWTD so that the KLWTD may install a low pressure lift station and a small force main on the individual private lots within the easement. This lift station will be connected to the KLWTD's force mains by KLWTD. The individual lift stations and its connecting force mains will be owned and maintained by the KLWTD even though it will be installed on private property. Further, our understanding is the individual property owners will be responsible for connection of their house sanitary sewage line to the KLWTD's low pressure lift station as well as the decommission of any existing on -site wastewater system currently on their property (septic, aerobic, etc.). Finally, the homeowner will be responsible for the plumbing and electrical connection from the house to the lift station. If our understanding of the proposed CR-905 project is incorrect, please update us on the scope of the project and the specific details relative to the improvement project relative to the CBRS unit. In terms of permitting requirements, relative to the KLWTD's project, the Monroe County Attorney's Office has provided a legal opinion (see attachment 2) stating: 1) KLWTD installation of the lift stations on private property where the District has been granted an easement from the private property owner does not require a County permit; 2) the property owner's electrical connection to the KLWTD lift station will require a County permit; and 3) the property owner's plumbing connection to the KLWTD lift station will require a County permit. Specifically, the Assistant County Attorney has opined that the KLWTD is exempt from local permitting regulations pursuant to Chapter 2008-291, Laws of Florida (see attachment 3), for the installation of lift stations to be installed on private property where the District has been granted an easement from the private property owner. Additionally, as we discussed the CBRS designation "encourages the conservation of hurricane prone, biologically rich coastal barriers by restricting Federal expenditures that encourage development, such as Federal flood insurance." The CBRS areas are depicted on a series of maps entitled "John H. Chafee Coastal Barrier Resources System" which are maintained by the Department of the Interior through the Fish and Wildlife Service. Aside from three minor exceptions, only Congress has the authority to add or delete land from the CBRS and create new units. These exceptions include: (1) voluntary additions to the CBRS by property owners; (2) additions of excess Federal property to the CBRS; and (3) the CBRA 5- year review requirement that solely considers changes that have occurred to System units by natural forces such as erosion and accretion (see: http://www.fws.gov/cbra/Act/index.html). Additionally, the County has adopted the following Comprehensive Plan policies and Land Development Regulations which both discourage and prohibit the extension of utilities, within CBRS units. Adopted Monroe County Comprehensive Plan Policy 101.12.4 Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: 1. assessment of needs; 2. evaluation of alternative sites and design alternatives for the alternative sites; and, 3. assessment of direct and secondary impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and designated Tier I areas. Except for passive recreational facilities on publicly -owned land, no new public community or utility facility other than water distribution and sewer collection lines or pumplvacuumllift stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all the following criteria are met: 1. No reasonable alternatives exist to the proposed location; and 2. The proposed location is approved by a supermajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allowed clearing of up to 4.2 acres shall not be subject to this polio•. Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS). Policy 102.8.2 Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new bridges, new causeways, new paved roads or new commercial marinas to or on units of the Coastal Barrier Resources System (CBRS). Policy 102.8.3 By January 4, 1997, shoreline hardening structures, including seawalls, bulkheads, groins, rip -rap, etc., shall not be permitted along shorelines of CBRS units. Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be considered for acquisition by Monroe County for conservation purposes through the Monroe CountyNatural Heritage and Park Program. Policy 102.8.5 Monroe County shall [take] efforts to discourage the extension offacilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the significant expansion (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 103.2.10 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies) GOAL 209 Monroe County shall discourage private land uses on its mainland, offshore islands and undeveloped coastal barriers, and shall protect existing conservation lands from adverse impacts associated with private land uses on adjoining lands. Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS). Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 217.4.2 Xo public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 502.1.5 Monroe County shall support a proposal to amend the Coastal Barrier Resources System Map adopted by the Coastal Barrier Improvement Act of 1990, to delete the improved port property along the Safe Harbor entrance channel from the system unit, FL 57. Policy 1301.7.12 By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures which could be taken to discourage or prohibit extension offacilities and services to Coastal Barrier Resource Systems (CBRS) units. Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and 4 parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Adopted Monroe County Land Development Regulations Sec. 101-L —Definitions Coastal Barrier Resources System (CBRS) means those 15 (CBRS) units in the county designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprising undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore waters. Sec. 130-122. - Coastal barrier resources system overlay district. (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collectionsystems,* potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems. (Code 1979, § 9.5-258; Ord. No. 43-2001, § 1) Based on this information, the adopted Comprehensive Plan Policies and Land Development Regulations, taken collectively, the County cannot issue building permits to individual property owners in order for them to connect their electric and plumbing to the KLWTD lift stations, within the CBRS unit FL-35. This issue can only be resolved by the Board of County Commission directing and approving the processing of amendments to Comprehensive Plan Policies and Land Development Regulations relative to the extension or expansion of transmission and/or collection lines of utilities within CBRS units. We appreciate your continued coordination on this issue. Should you have any questions, please contact me at (305) 289-2523 and schwab-townsley@monroecounty-fl.gov. Thank you. Townsley Schwab Senior Director of Planning & Environmental Resources Enclosures: 1) U.S. Fish and Wildlife Service CBRS map of North Key Largo Unit FL-35 2) Monroe County Attorney's Office Legal Opinion of KLWTD permitting requirements 3) Chapter 2008-291, Laws of Florida cc: Board of County Commissioners (w/o enclosures) Bob Shillinger, County Attorney (w/o enclosures) Roman Gastesi, County Administrator (w/o enclosures) Christine Hurley, Growth Management Division Director (w/o enclosures) Jerry Smith, Building Official (w/o enclosures) A�knehmerl-1 -- COASTAL BARRtHR RH84URCt?8 8Y8TEM - �.�e`w'Bw�'e« a.°b°�°q�i0- � Wa ed NORTH KEY LARGO UNIT FL-U/PL-UP OP CO�p p�ld td m OdY41 AOl PL 01001 tddd�dr�dyd btiddp.�dprw ar EitNod EL RADABOB KEY �INIT FL -UP — eodeowidt erred d tbd 1 BMl etllpidd eI Cddmdid. rM r rft mor o scOr 24.o00 rdmddd odtrrmidndftOM t of PL 6. �t ' Bold bm debt dada i1 the CaW Celled Ola ddllol 'oWdrrhd prolsohd rw• dot ritlrn tee OBRB. Thad rw ao llgde ndd tea Ldltr •P• fa000p0 ttM and ouoOr OotobW 24. 1990 Revlwd Ndvembx 1 l" Attachment 2 C UNTY JoMONROE KEYWESTFLORIDA 33040 (305)294-4641 Robert B. Shillinger, County Attorney** Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney** Natileene W. Cassel, Assistant County Attorney** Cynthia L. Hall, Assistant County Attorney ** Christine Limbert-Barrows, Assistant County Attorney ** Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney Steven T. Williams, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law BOARD OF COUNTY COMMISSIONERS Mayor George Neugent, District 2 Mayor Pro Tem, Heather Carruthers, District 3 Danny L. Kolhage, District 1 David Rice, District 4 Sylvia J. Murphy, District 5 Office of the County Attorney 1111 12`s Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax To: Christine Hurley, Director, Growth Management Division Through: Robert B. Shillinger, County Attorney From: Lisa Granger, Assistant County Attorney Date: November 27, 2012 RE: Key Largo Wastewater Treatment District Proposed CR-905 Project QUESTION PRESENTED: Is the Key Largo Wastewater Treatment District (KLWTD) exempt from permitting regulations under the law and do certain individual property owners share that exemption? SHORT ANSWER: Yes, KLWTD is exempt from permitting regulations. However individual property owners are not exempt from permitting regulations. BACKGROUND: Under Chapter 2008-291, Laws of Florida, the legislature created an exemption from permitting obligations for KLWTD. While it is clear that KLWTD is exempt from permitting obligations, KLWTD "shall comply with the substantive regulations other than permitting of the appropriate local agency in effect at the time of district approval of the final plans for development." This means that KLWTD may have an obligation to comply with FEMA and FWS regulations. In the past, KLWTD did apply for and receive opinion letters from FWS. However, Chapter 2008-291, Laws of Florida, does not contain any language that exempts individual property owners from permitting regulations. As a result and pursuant to F.S. 381.00655(1)(a), the property owner must connect to the central sewer system within a definite number of days after the system is available. The definition of available as found in F.S. 381.0065 (2)(a), in pertinent part is "as applied to a publicly owned or investor -owned sewerage system, means that the publicly owned or investor - owned sewerage system is capable of being connected to the plumbing of an establishment or residence, is not under a Department of Environment Protection moratorium, and has adequate permitted capacity to accept the sewerage to be generated by the establishment or residence...." Also Monroe County Code (MCC) § 20- 51 states that property owners must connect within 30 days after written notification that the system is available for connection. CONCLUSION: Based upon the above background the KLWTD is exempt from permitting regulations. Based upon the above background and the requirements in the Florida Building Code and MCC Chapter 6 wherein plumbing and electric work requires permits, the individual property owners are required to apply for permits within 30 days of written notification that the system is available for connection and are not exempt from permitting regulations. CHAPTER 2008-291 Attachment 3 Council Substitute for House Bill No. 1231 An act relating to the Key Largo Wastewater Treatment District, Monroe County; amending chapter 2002-337, Laws of Florida; pro- viding that the district is not subject to local regulations governing discharge of effluent and is not obligated to obtain licenses, permits, or authorizations required by local regulating agencies; requiring the district to provide the county with a notice of development; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (6) is added to section 3 of section 1 of chapter 2002- 337, Laws of Florida, to read: Section 3. District; creation, jurisdiction, and purpose.— (6) The district shall comply with federal and state laws governing the construction and operation of its systems and the quality and manner of discharge of effluent but shall not be subject to local regulation over the authorize the same to exercise authority over the projects of the district. The district shall not be obligated to obtain licenses, permits, or other authoriza- tions required by local regulating agencies for development but shall comply with the substantive regulations, other than permitting, of the appropriate local agency in effect at the time of district approval of the final plans for development. The district shall provide Monroe County with a Notice of Intent to Proceed that includes a description of any planned development and identifies the property no later than 30 days prior to the installation or construction of wastewater infrastructure or related facilities. Section 2. This act shall take effect upon becoming a law. Approved by the Governor June 30, 2008. Filed in Office Secretary of State June 30, 2008. 1 CODING: Words stamen are deletions; words underlined are additions.