Item BBOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 11.2016 Department: Sustainability and Projects
Bulk Item: Yes _ No X Staff Contact Person: Rhonda Haag, 453-8774
AGENDA ITEM WORDING: Discussion of the County's current Canal Restoration Program and
the future of the program.
i 1'r;M BACKGROUND: The County's canal restoration program has been underway for 4 years.
Grants from DEP and EPA funded the initial phases of the program, including the development of the
Canal Management Master Plan, bathymetric surveys, and water quality monitoring. Additional grants
from EPA and DEP funded construction projects including the Geiger Key culvert project and the
Tropical Bay Estates culvert installation, in addition to canal outreach workshops, and research into
alternative restoration technologies and the formation of a business plan. To keep the momentum
moving, the County dedicated $5 Million to construction a series of 7 demonstration projects to test
five restoration techniques. All of the projects except the pumping project are underway or will be
completed by June 2016. The pumping project, has not moved forward due to resident concern and
lack of funding.
The BOCC approved $2M for 2016 for additional demonstration projects, which were approved at the
March 23, 2016 BOCC meeting. No additional funds have been identified for FYI or beyond, and no
long term plan is in place. The program is at a point where decisions need to be made about financing
projects, project implementation, programmatic needs, operations and maintenance and staffing.
The agenda for the workshop is attached along with several attachments of documents that
provide background information.
PREVIOUS RELEVANT BOCC ACTION:
• 3/21112: Approval of a $100,000 Grant from FDEP to fund Phase 1 of the Canal Management Master Plan
(CMMP) and authorization for AMEC to develop the Plan.
• 06/20/12: Approval of a grant application to EPA requesting $100,000 for Phase 2 of the CMMP.
• 09/12/12: Approval of a $100,000 grant from EPA to fund Phase 2 of the CMMP.
• I 1/20/12: Approval for AMEC to develop Phase 2 of the CMMP.
• 03/20/13: Approval of $5 million in Canal Restoration Demonstration Projects.
• 03120/13: Approval of a $100,000 Grant from DEP (S0640) for bathymetric surveys and approval for
AMEC to implement the work.
• 05/15/13: Approval of a contract with AMEC to select the demo projects, as a result of a Request
For Quotes.
• 08/21/13: Approval of the selection process for the top 15 canals.
• 10/16/13: Approval of the top 15 canals, selection of 6 canals for the demonstration projects, and a 90 day
limitation on the homeowner approval period.
• 12111/13: Approval of the seventh demonstration projects for canal #288 in Big Pine Key for a weed gate.
• 05-21-14: Approval of contract with AMEC for design, permitting, field assessment tasks including
bathymetric surveys, mangrove assessment, tidal studies for hydraulic modeling and geotechnical studies;
project management and engineering support during construction for six (6) of the seven (7) demonstration
canals in unincorporated Monroe County.
• 12/10/2014: Approval to enter into a contract with the lowest bidder responding to the advertisement for
Request For Bids for the construction and installation of a culvert on Canal #472 on Geiger Key, the 3rd
ranked canal project in the Canal Management Master Plan. Approval to fund $121,350.59 towards the
$199,641.59 construction cost (the lowest bid). The remaining $78,291.00 is being funded by DEP Grant
S0273.
• 12110/14: Adopted an ordinance creating Section 6-3 for temporary construction staging areas
• 01/21/2015: Approval to enter into an Agreement with Adventure Environmental, Inc. for $1,360,000.00
for construction of the canal backfilling water quality improvement demonstration project at Canal #29,
Sexton Cove, Key Largo.
• 04-15-15: Approval to enter into a contract with JND Thomas Company for $1,839,905 plus Alternative B
for $159,906 for removal of organic muck material from Canal #266 located between Baileys and Witters
Lanes in Doctor's. Arm and Canal #290 located between Avenues I and J on Big Pine Key utilizing vacuum
dredging.
• 04/15/15: Approval to advertise a public hearing to section 6-3 of the MCC relating to the allowance of
temporary setback variances for temporary construction staging areas with a special permit granted by the
BOCC.
• 01/2012016: Approval to enter into a contract with Douglas N. Higgins, Inc. for 423,957.00 for installation
of a 60-inch circular concrete reinforced pipe culvert at Canal #277 in order to increase the natural tidal
flushing.
• 02/10/2016: Approval to enter into a contract with Earth Tech Enterprises, Inc. for $202,384 to remove an
existing ineffective weed barrier system and install a new air curtain system on Canal #266 (located
between Baileys Lane and Witters Lane in Doctor's Arm Big Pine Key); to demolish portions of an existing
ineffective weed barrier and install a new air curtain system at on Canal #287 (located between Atlantis
Drive and Hollerich Drive in Big Pine Key).
CONTRACT/AGREEMENT CHANGES: Not applicable
STAFF RECOMMENDATIONS: Not applicable
TOTAL COST $NIA. INDIRECT COST: _BUDGETED: Yes ,No i N/A
DIFFERENTIAL OF LOCAL PREFERENCE: NIA
COST TO COUNTY: SOURCE OF FUNDS: For discussion
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County A ?� OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
MONROE COUNTY BOCC CANAL RESTORATION WORKSHOP AGENDA
APRIL 11, 2016
10:00 AM — 3:00 PM
MARATHON GOVERNMENT CENTER 2798 OVERSEAS HIGHWAY
MONROE COUNTY BOCC ROOM 2ND FLOOR, MARATHON, FL 33050
1. The Need for a Canal Restoration Program
a. Welcome and introduction to purpose of workshop - Rhonda Haag
b. Municipalities:
o Islamorada, Village of Islands — Mike Forster
o City of Marathon — George Garrett
o City of Key Colony Beach —Jerry Ellis
o City of Layton —Skip Haring
o City of Key West —Alison Higgins
2. Public Comment
3. Results from the $5 Million Demo Program
a. Summary of the Canal Management Master Plan - Wendy Blondin
i. Water quality assessment, prioritization for restoration, identified various restoration options
ii. Did not develop conceptual designs, costs, or schedule for implementation
iii. Did provide enough information to start evaluating restorations
b. Demonstration Project Construction Updates - Wendy Blondin
C. Water Quality Improvements -before and after — are they working? - Wendy Blondin
d. Budget Expenditures - Wendy Blondin
4. Regulatory Requirements Related to Canal Water Quality Impairments —Are We Mandated?
a. Monroe County Attorney's Memorandum on Canal Restoration Regulatory Background State's Clean
Water Act, TMDL - What would trigger a TMDL and Consequences of No Action - Derek Howard
b. Florida Keys National Marine Sanctuary and Protection Act — law mandated development of a Water
Quality Protection Program which is administered by DEP and EPA - canal restoration is identified as a
top priority and next challenge in the Water Quality Improvement Plan - Sean Morton FKNMS
C. Overview of Reasonable Assurance Documents — EPA Letter dated August 28, 2015 - Steve Blackburn
EPA
d. DEP Impaired canals and requirements — DEP Letter dated September 10, 2015 - Jon Iglehart/Gus Rios
DEP
e. TMDL program requirements — practical aspects of TMDL versus Reasonable Assurance Document - Walt
Reigner
LUNCH
S. Long -Term Financing Strategies for Canal Restorations
a. Summary of known funding sources — grants, legislative, Restore Act, Stewardship Bill, Infrastructure
taxes — Lisa Tennyson
i. Test of use of infrastructure tax dollars for canal restorations - Bob Shillinger
b. Issues to be addressed
I. Ownership of canal waters and canal bottoms — Peter Morris
ii. Can canals be public facilities? — Peter Morris
iii. Liability apportionment for canal conditions — Derek Howard
iv. Does the County have the Right of Use of canals to close them to boat traffic (with no
ownership issues) — Peter Morris
v. Resident notification and approval process for doing work in a canal when ownership is not
documented - Peter Morris
• Current: minimum 75% signed returned homeowner letter approval required.
• New Recommendation: Outgoing Notification letter and community meeting only. Plus
permit process notification.
vi. Resident notification and approval process for doing work in a canal when ownership is private —
Peter Morris
vii. Sea Level Rise Impact on selection of canals for restoration —policy decision is needed —Rhonda
Haag
C. Overview of general revenue tools, such as assessments, taxing, MSBU, MSTU and Fee for Service using
Equivalent Residential Units (ERUs) - Cynthia Hall and Elizabeth Treadway
d. Actual Funding Strategies Used throughout Florida — Elizabeth Treadway
e. Considerations for Long-term Financing - Elizabeth Treadway
i. Equity of Apportionment (all landowners, only waterfront property owners, undeveloped lots,
County owned lots, Federal or State owned lots, Tiered fee approach). Have residents define
their jurisdiction if it is an MSTU.
ii. How much can the County manage/spend per year (level and extent of service)
f. Integrated Approach — multiple sources of funding — Elizabeth Treadway
i. Private/Public Partnership - Homeowner funding participation - voluntary or required? What
do the residents pay? Matching funds moves the canal up in prioritization for selection for
restoration.
ii. Operation and maintenance after 2 years— MOU needed, County oversight?
iii. Long term
6. Need for a Long Term Implementation and Funding Plan
a. Develop a strategic implementation plan and funding scheme — Rhonda Haag
i. Cost of full restoration
a. Quantify muck thicknesses and disposal options
b. Update water quality monitoring data
Limit and extent of services
iii. Annual expenditures
iv. Management of program — structure and day-to-day implementation
V. Schedule
vi. How to Measure Success
7. Benefits to Residents — Rhonda Haag
8. Future BOCC Actions — Rhonda Haag
Staff Direction Needed:
• For moving forward with a canal restoration program
• For approval for funding development of an Implementation Plan
• To solicit for a Continuing Services Engineering Contract for canal restoration services
• To select and move forward with implementation of a funding strategy at one canal as a
demonstration project
• For change in the homeowner approval process
• On homeowner participation levels
• On evaluating alternative technologies for Eden Pines
• To research the influences of sea level rise on canal restorations
9. Public Comment
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
Memorandum from Derek Howard, Assistant County Attorney
Re: Canal Restoration and Regulation
County of Monroe
The Florida. Keys
Robert B. Shillinger, County Attorney**
Pedro J. Mercado, 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**
Peter H. Morris, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
BOARD OF COUNTY COMMISSIONERS
Mayor Danny L. Kolhage, District 1
Mayor Pro Tern Heather Carruthers, District 3
George Neugent, District 2
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
MEMORANDUM
TO: Bob Shillinger
Monroe County Attorney
FROM: Derek Howard
Assistant County Attorney
Date: September 8, 2015
RE: Canal Restoration and Reeulation
I. Introduction
This memorandum briefly examines the regulations and agreements that apply to canal
water quality in Monroe County, and the County's obligations thereunder to proceed with canal
restoration projects. It is generally agreed that dead-end or poorly -flushed canals contribute to
poor nearshore water quality in the Keys.'
' "Dead-end or poorly -flushed canals also contribute to poor nearshore water quality in the Keys.
Stormwater runoff and wastewater from septic tanks enters canals and may be carried by tidal currents into
nearshore marine waters." National Keys Marine Sanctuary, Water Quality: Frequently Asked Questions,
available online at http://floridakeys.noaa.gov/scisummaries/wgfaq.pdf. See also AMEC Environmental &
Infrastructure, Inc., Canal Management Master Plan, pg. iii, Sept. 20, 2013 ("Canals within the Florida
Keys have recently received considerable attention from regulatory agencies because many are associated
with poor water quality. Canals with poor water quality have the potential to cause significant harm to near
shore marine waters upon which the community depends. Water quality impairments within canals are
most often associated with low dissolved oxygen (DO) as a result of accumulated organic matter or lack of
flushing.")
II. Federal and State Regulation under the Clean Water Act (CWA)
The Clean Water Act (CWA) establishes the basic structure for regulating discharges of
pollutants into the waters of the United States, as well as water quality standards for surface
waters.2 The basis of the CWA was enacted in 1948 as the Federal Water Pollution Control Act,
which was significantly amended in 1972. The objective of the CWA is to "to restore and
maintain the chemical, physical, and biological integrity of the Nation's waters."3 Section 301(a)
of the CWA makes unlawful the discharge of any pollutant into navigable waters except as
authorized by specified sections of the Act.4 Under the CWA, the EPA has established wastewater
standards for industry, as well as water quality standards for all contaminants in surface waters.
"Under the CWA, the federal and state governments share duties to monitor and regulate water
pollution, with the states bearing primary responsibility for implementing pollution control
mechanisms and the federal government overseeing the states' actions in that regard. As a
threshold matter, states are required to establish water quality standards to define the level of water
quality for each waterbody within their borders."5 There are three components to water quality
standards: (1) the designated uses of the waterbody;6 (2) the water quality criteria necessary to
support the designated uses, expressed as constituent concentrations, levels, or narrative
statements;7 and (3) an anti -degradation policy that is consistent with the EPA's anti -degradation
regulation and specifies the circumstances under which the state may authorize the lowering of
water quality criteria.8 "Once water quality standards have been established, states must monitor
waterbodies to determine whether the standards are being met and develop mechanisms to either
maintain or restore water quality, depending on the circumstances."9
2 33 U.S.C. § 1251 et seq. (1972)
s 33 U.S.C. § 1251(a)
4 33 U.S.C. § 1311(a)
5 Florida Clean Water Network, Inc. v E.P.A., 2012 WL 1072216 (N.D. Fla. March 30, 2012)
6 see 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(f), 13 1. 10
7 see 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(b) and (i), 131.11
8 see 40 C.F.R. § 131.12(a) (2); Am. Wildlands v Browner, 260 F.3d 1192, 1194 (10th Cir.2001). Florida's
anti -degradation policy is found in 62-302.300 and 62-4.242, F.A.C.
9 Florida Clean Water Network, Inc. v E.P.A., 2012 WL 1072216 (N.D. Fla. March 30, 2012)
The Florida legislature authorized the Florida Department of Environmental Protection (FDEP)
to promulgate water quality standards for the state.10 On May 29, 1990, the FDEP exercised that
authority and promulgated chapter 62-302 of the Florida Administrative Code, which sets forth the
water quality standards for all of the state's surface waters." All waters of the state fall into one of
five surface water classifications with specific criteria applicable to each class of water.12 The
numbers run from most protected (class I) to least protected (class V). The nearshore waters in the
Florida Keys, including canals, are classified as Class III (Recreation, Propagation and
Maintenance of a Healthy, Well -Balanced Population of Fish and Wildlife).13 For these waters,
the applicable water quality standard is Chapter 62-302.530(30), F.A.C., which states that
dissolved oxygen ("DO") in Class III marine waters: "Shall not average less than 5.0
milligrams/liter in a 24-hour period and shall never be less than 4.0 milligrams/liter. Normal daily
and seasonal fluctuations above these levels shall be maintained." 14 In addition to its surface
water classification, a water body may be designated as an Outstanding Florida Water.15 In 1985,
Florida designated the waters surrounding the Florida Keys "Outstanding Florida Waters" (OFW).
Designation of OFW is intended to protect existing good water quality by eliminating the
discharge of any pollutant that would result in a degradation of existing conditions. 1 6
The CWA requires that states identify and compile a list of the waters within their boundaries
that do not meet the applicable water quality standards and thus are not safe for their designated
purposes.17 The list is known as the "Impaired Waters List" or "section 303(d) list."18 "For each
10 See Fla. Stat. § 403.061(11)
" See Fla. Admin. Code r. 62-302.200—.800.
12 (62-302.400 F.A.C.)
13 The surface waters of the state are Class III unless described in rule 62-302.400, F.A.C.
14 The threshold limits on pollutants in surface waters --Florida's surface water quality standards on which
TMDLs are based --are set forth primarily in rule 62-302, Florida Administrative Code, and the associated
table of water quality criteria.
" (62-302.700 F.A.C.).
16 Section 403.061(27), Florida Statutes, grants the Department of Environmental Protection (DEP) the
power to establish rules that provide for a special category of waterbodies within the state, to be referred to
as "Outstanding Florida Waters," which shall be worthy of special protection because of their natural
attributes.
17 See 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b), (d)(1).
waterbody included on the section 303(d) list, the state must calculate a Total Maximum Daily
Load (TMDL) for every pollutant causing the waterbody not to meet the applicable standards; as
the phrase suggests, the TMDL establishes the maximum quantity of the pollutant that can be
received on a daily basis without exceeding the standard."19 As an alternative, a Reasonable
Assurance Document (RAD) may be developed in lieu of a TMDL when local management
activities are already in place or planned that can achieve water quality targets.20
In 2002, the nearshore waters and canals of the Florida Keys were determined by the State of
Florida to be impaired due to nutrients, and in violation of Florida Administrative Code § 62-
302.530(47)(b) which states that "in no case shall nutrient concentrations of body of water be
altered so as to cause an imbalance in natural populations of flora or fauna."21 As required by
Section 303(d) of the CWA, the waterbody was added to the state's list of impaired surface waters.
This triggered the State's obligation to develop a TMDL or develop a RAD.
2008 FKRAD
In 2008, the responsible governmental agencies and stakeholders in Monroe County chose
the alternative RAD route of complying with the CWA and developed the Florida Keys
Reasonable Assurance Document (FKRAD) to address nutrient issues in many of the waters within
the Florida Keys.22 FKRAD set forth and accelerated the actions that have been taken or were
planned to be taken to reduce nutrient loadings to near shore waters throughout the Florida Keys so
that water quality standards are met and beneficial uses are restored.
18 Florida Clean Water Network, Inc. a E.P.A., 2012 WL 1072216 (N.D. Fl March 30, 2012). States are
required to submit their section 303(d) list and TMDLs to the EPA for review and approval every two years.
See 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(1).
19 Florida Clean Water Network, Inc. v E.P.A., 2012 WL 1072216 (N.D. Fl March 30, 2012). See also 33
U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c).
20 See, F.A.C. 62-303.600(b). See also, FKNMS, 2011 Annual Report, available online at
http://floridakeys.noaa.gov/about/111202fknms-ar.pdf. See also FDEP, Division of Environmental
Assessment and Restoration, Guidance on Developing Restoration Plan as Alternative to TMDLs—
Assessment Category 4b and 4e Plans (June 2015), available online at
http://www.dep.state.fl.us/water/watersheds/assessment/docs/4b4ePlansGuidance.pdf
21 U.S. EPA, Florida Keys National Marine Sanctuary Water Quality Protection Program, Report to
Congress (September 2013)
22 FKRAD was comprised of a series of plans, including: "Northern Keys Area Reasonable Assurance
Documentation", "Central Keys Area Reasonable Assurance Documentation", "South Central Keys Area
Reasonable Assurance Documentation", and "Southern Keys Area Reasonable Assurance Documentation"
In 2009, "FDEP provided a draft of the FKRAD to USEPA for preliminary review, and
received a general positive response, but USEPA voiced concerns regarding dissolved oxygen
levels in canals. USEPA indicated that factors such as canal hydrology and accumulation of dead
seaweed may continue to impair water quality in some areas."23
2011 FKRAD Update
In 2011, FKRAD was updated to document actions taken by stakeholders since 2008 to return
the area's near shore water quality to the targets set for total nitrogen (TN) and total phosphorous
(TP).24 This document also addresses the dissolved oxygen (DO) impairment identified by the
Florida Department of Environmental Protection (Department) in some of the water segments for
the Florida Keys.
FDEP recognized in the 2011 FKRAD that water quality in canals would not achieve Class III
marine DO standards after the management activities were completed. For this reason, the
department stated it would continue to work with the stakeholders and study potential canal
improvements, beyond the management activities listed in the 2011 RAD, and evaluate whether
reclassification to Class III -Limited was appropriate.25 Class III -Limited is restricted to waters
with human -induced physical or habitat conditions that, because of those conditions, have limited
aquatic life support and habitat that prevent attainment of Class III uses. Class III -Limited is
designated for the following uses: fish consumption; recreation or limited recreation and/or
propagation and maintenance of a limited population of fish and wildlife.26 Class III -
Limited surface waters share the same water quality criteria as Class III except for any site -specific
alternative criteria that have been established for the water body under Rule 62-302.800, Florida
Administrative Code.
23 FKNMS, 2011 Annual Report, available online at http://floridakeys.noaa.gov/about/111202fknms-ar.pdf
24 FDEP, Florida Keys Reasonable Assurance Documentation Update (December 2011)
21 Id. at 14
26 Fla. Admin. Code R. 62-400(1) (2015)
III. Florida Keys National Marine Sanctuary (FKNMS)
The waters of the Florida Keys are afforded additional protection by virtue of being included in
the Florida Keys National Marine Sanctuary (FKNMS). FKNMS was designated pursuant to the
Florida Keys National Marine Sanctuary and Protection Act27 on November 16, 1990, and is one
of 14 marine protected areas that make up the National Marine Sanctuary System.2' FKNMS
protects 2,900 square nautical miles of waters surrounding the Florida Keys, from south of Miami
westward to encompass the Dry Tortugas, excluding Dry Tortugas National Park.29
The sanctuary was created and exists under federal law. "However, because approximately 60
percent of the protected area falls in state waters, the sanctuary is also effective in these state
waters under consent of the State of Florida. This creates a unique partnership whereby the
sanctuary is administered by NOAA and jointly managed by NOAA and the State of Florida under
a co -trustee agreement."30 "Under this agreement, NOAA's primary management partner is the
Florida Department of Environmental Protection (DEP). The Florida Fish and Wildlife
Conservation Commission (FWC) enforces sanctuary regulations in partnership with sanctuary
managers and the NOAA Office of Law Enforcement. The sanctuary also works with multiple
state and federal agencies, universities, and non -governmental organizations to protect the complex
coral reef community in the Keys. The relationship with some of these groups, such as the U.S.
Environmental Protection Agency, is based on the legislation that created the sanctuary. Other
relationships have evolved through cooperative agreements or arrangements based on shared
geographic boundaries, missions, goals, or interests."31
Water Quality Protection Program (WQPP)
In 1992, Congress directed USEPA and that State of Florida to develop a Water Quality
Protection Program (WQPP) for the Florida Keys National Marine Sanctuary. The purpose of the
27 Public Law 101-605 (H.R. 5909)
28 FKNMS, About Florida Keys National Marine Sanctuary, available online at
http://floridakeys.noaa.gov/about/welcome.html?s=about
29 Id.
30
FKNMS, Florida Keys National Marine Sanctuary Administration and Legislation, available online at
http://floridakeys.noaa.gov/legislation.html
31 id.
WQPP is to recommend corrective action to protect water quality and compliance schedules to
address point and nonpoint sources of pollutions to restore and maintain the chemical, physical and
biological integrity of the Sanctuary. "Canal water quality restoration is a priority of the WQPP
Steering Committee which recently passed a motion to develop a plan to prioritize canal
restoration projects and to identify funding sources for these projects."32
A Canal Restoration Advisory Subcommittee was created to address water quality in the
Keys canals. The members include EPA, NOAA, DEP, FWC, Monroe County and the
incorporated municipalities in the Florida Keys. According to the EPA:
Many of the canals in the Keys are not achieving the Class III
designation — safe for swimming and fishing. The canals are deep,
narrow, linear, many with dead-end configurations and are impaired
due to low oxygen concentrations, high fecal coliform bacteria
counts, and high concentrations of nutrients. In 2002, Monroe
County funded the preparation of "Monroe County Residential
Canals: Inventory and Assessment." That report provided an
inventory of the canals, a GIS database, a water quality classification
methodology, and recommended remedial actions (weed gates, air
curtains, backfilling and shallowing of canals, flushing, culverts,
circulation devices, and nutrient removal) to improve water quality
in the future.
The completion of the Little Venice Demonstration Project
demonstrates that water quality within the canals will gradually show
improvement as Monroe County implements improvements in
wastewater and stormwater treatment. However, those improvements
alone will not return many canals to Class III compliance. 33
A Canal Management Master Plan (CMMP) was prepared in 2013 and identified the following
issues and goals: (a) nutrients and dissolved oxygen; (b) organic materials (e.g. weed wrack); (c)
sediment quality; (d) habitat quality; and (e) public involvement.34 The plan involved a two-step
process. The first step involved engineering and science based assessment and evaluation
including the following: comprehensive mapping of residential canals; field study of water quality
in residential canals; developing a ranking system for categorizing canals based on observed
32 Monroe County Canal Management Master Plan (CMMP) and Canal Restoration Public Outreach
Seminar, pg. 12, available online at http://fl-monroecounty.civicplus.com/DocumentCenterNiew/8915
33 U.S. EPA, Florida Keys National Marine Sanctuary Water Quality Protection Program, Report to
Congress (September 2013)
34 AMEC Environmental & Infrastructure, Inc., Canal Management Master Plan, Sept. 20, 2013
characteristics; and prioritizing canals based on need for water quality improvement. The second
step is outreach, management and program development. This step includes prescribing a list of
best management practices that can be implemented by homeowners; and identifying funding
sources for implementing canal quality restoration.35
IV. CWA Enforcement
Under the FKRAD, Monroe County has made commitments to implement corrective actions to
reduce pollution and restore canal water quality. If Monroe County were to abandon its
commitments, then the EPA could utilize a number of enforcement tools againt the County. CWA
enforcement mechanisms include injunctions, civil administrative and judicial actions, and
criminal prosecutions brought against both institutions and individuals. Enforcement actions may
be brought by the EPA, the U.S. Army Corps of Engineers (Corps), states enforcing Section 402 as
part of their delegated authority to administer the NPDES program within their borders, and
private citizens.
Section 309(a) authorizes EPA to issue broad administrative orders mandating compliance with
the CWA, including orders to command persons to cease their unpermitted discharges. Section
309(g) allows for administrative penalties.36 Sections 309(b) and (d) authorize EPA to bring
federal judicial enforcement actions seeking injunctive relief and civil penalties.37 Civil liability
under the CWA is not limited to intentional violations; the statute provides for strict liability.38
Under Section 309(c) of the CWA, EPA can also seek criminal sanctions .39
Citizen Suits Under the CWA
The CWA includes a "citizen suit" provision that gives persons affected by violations of
the Act a private right of action "to enforce" the Act against violators, including the United Sates, a
35 Monroe County Canal Management Master Plan (CMMP) and Canal Restoration Public Outreach
Seminar, pg. 12, available online at http://fl-monroecounty.eivicplus.com/DocumentCenterNiew/8915
36 CWA § 309(g)(3), 33 U.S.C. § 1319(g)(3).
3' Id. §§ 309 (b), (d), 33 U.S.C. §§ 1319(b) (injunctive relief provision) and (d) (civil penalties).
36 U S. v. Bd. of Trustees of Fla. Keys Cmty. Coll., 531 F. Supp. 267 (S.D. Fla. 1981).
39 CWA § 309(c), 33 U.S.C. § 1319(c).
government instrumentality or agency, or administrator.40 While the federal and state
governments have primary enforcement authority, Congress intended citizen suits to be an
essential component of the Act's enforcement scheme.a'
Congress included certain "gatekeeper" provisions in the CWA to minimize conflicts between
citizen enforcement and agency enforcement. Before a citizen may file suit, the Act requires that
the citizen give sixty days' notice of the alleged violation to the violator, EPA, and the state.42 If
EPA or the state wishes to preclude a citizen suit, it may file and "diligently" prosecute its own
judicial enforcement action after receiving the citizen's notice of suit.43 The citizen suit may be
filed after the expiration of the notice period if the EPA or the state does not take action, and if the
violator does not take all corrective action necessary to ensure sustained compliance with the
CWA.44 Citizen suits may seek injunctive relief to enforce a standard or limitation and civil
penalties payable to the federal government.45
Could the Canals Be Considered Point Sources?
The FKRAD and current regulation of canals in Monroe County do not contemplate the canals
themselves as "point sources" that require an NPDES permit. One additional source of liability for
Monroe County, as well as the homeowners associations that exercise control over canals, is if the
canals were deemed to be "point sources" that discharge pollutants (i.e. excessive nutrients) into
the connecting waters. "To establish a CWA violation, the plaintiffs ] must prove that (1) there has
ao 33 U.S.C. § 1365(a).
a' See 33 U.S.C. § 1251(e) ("Public participation in the development, revision, and enforcement of any
regulation, standard [or] effluent limitation ... shall be provided for, encouraged, and assisted by the
Administrator [of EPA] and the States.") (emphasis added).
az See 33 U.S.C. § 1365(b)(1)(A). See also Nat'l Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 1097
(1 lth Cir.1991) ("[T]he 60-iay notice requirement of 33 U.S.C. § 1365(b) is a mandatory condition
precedent to the filing of a citizen suit under the Clean Water Act."). Pre -suit notice must contain
sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to
have been violated, the activity alleged to constitute a violation, the person or persons responsible for the
alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name,
address, and telephone number of the person giving notice. 40 C.F.R. 135.3(a). "The notice requirements
are strictly construed to give the alleged violator the opportunity to correct the problem before a lawsuit is
filed." Nat'l Parks and Conservation Assn v. Tenn. ValleyAuth., 502 F.3d 13161 1329 (1 lth Cir.2007).
as See id. § 1365(b)(1)(B).
as see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (citizens may not
bring suit if violations are not "ongoing" at the time of the filing of the complaint).
asCWA § 404(a)(2), 33 U.S.C. § 1365(a)(2).
been a discharge; (2) of a pollutant; (3) into waters of the United States; (4) from a point source;
(5) without a NPDES permit."46 A "point source" is defined as
any discernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants are
or may be discharged. This term does not include agricultural
stormwater discharges and return flows from irrigated agriculture.47
Additional research is being conducted to determine whether the theory of a canal as a "point
source" could be meritorious in a possible citizen suit.
V. Conclusion
The canals of the Florida Keys are regulated as impaired waters, as well as a contributor to the
degradation of the connecting nearshore waters. The waters of the Florida Keys were found to be
in violation of the CWA. Monroe County's partnership and continued work with other
stakeholders under the FKRAD to improve canal water quality has averted the development of
TMDLs and adversarial actions. However, as the entity with primary jurisdiction over
development approval and land uses, Monroe County could be held liable as a party in public and
private enforcement actions if it refused to honor its commitments under the FKRAD and restore
impaired canals.
46 Parker v Scrap Metal Processors, Inc., 386 F.3d 993, 1008 (1 lth Cir.2004).
47 § 1362(14).
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
U.S. Environmental Protection Agency and Florida Department of Environmental
Protection Letters
Re: Clarifying Canal Impairments and Monroe County Responsibilities
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
A REGION 4
ATLANTA FEDERAL CENTER
�F 61 FORSYTH STREET
t PRCO ATLANTA, GEORGIA 30303-8960
AUG 2 8 2015
Mr. George R Neugent
1583 Eastward Ho Lane
Marathon, Florida 33050
Dear Mr. Neugent:
Thank you for your July 28, 2015, inquiry to the U.S. Environmental Protection Agency on behalf of
Monroe County seeking clarification of Monroe County's state and federal responsibility to restore the
impaired canal systems as described in the Florida Keys Reasonable Assurance Document (FKRAD).
Water quality monitoring of the nearshore waters (halo zone) and the inland canal systems of the Keys,
confirmed pollution due to excessive nutrients and low dissolved oxygen. The failure to meet water
quality standards put the Florida Keys on the Clean Water Act Section 303(d) list of impaired waters.
Once on the 303(d) list, the State or the EPA is required to develop Total Maximum Daily Loads
(TMDLs) to restore the waterbodies. in lieu of developing the TMDLs, Monroe County and local
stakeholders contacted the EPA and State and expressed interest in pursuing a FKRAD, a commitment
by a local sponsor and stakeholders to implement corrective actions to reduce pollution and restore
waters. Monroe County was already in a strong leadership position through their participation in the
Florida Keys National Marine Sanctuary Water Quality Protection Program that was established to
address pollution from wastewater, stormwater, marinas, and other sources. After a series of technical
and stakeholder meetings, the decision was made by Monroe County and local stakeholders to develop a
FKRAD that was finalized in 2008 and approved by the Florida Department of Environmental
Protection (FDEP) in 2012.
At the time of the FKRAD development, it was known that wastewater and stormwater management
alone would not restore canal systems due to canal depths, organic loadings, canal configuration and
hydrological restrictions. The EPA, FDEP and stakeholders also recognized the limitations of the
FKRAD to accurately identify sources of impairment, loading rates, water quality targets, outside
sources, effective corrective measures, and funding for pollution control measures. To manage these
unknowns, the FKRAD included the adaptive management process. Adaptive management is the
commitment to revise the FKRAD and pollution controls, if progress towards achieving water quality
standards is not demonstrated. Monroe County and the stakeholders have accepted the challenges of
adaptive management and shown their commitment to the environment of the Florida Keys. This is best
demonstrated by the elimination of approximately 25,000 polluting septic tanks and cesspits and the
implementation of state-of-the-art wastewater facilities throughout the Keys by 2016 at a cost
approaching $1 billion.
In 2013, Monroe County provided $5 million to implement the Monroe County Canal Management
Master Plan (CMMP) and pilot restoration technologies at seven canals. As a partner, the EPA has
provided $5 million towards Keys water quality and seagrass monitoring to assess FKRAD
implementation; $300,000 towards pre- and post -water quality and seagrass monitoring of the canal
demonstration sites; and $300,000 to develop the CMMP, explore alternative technologies for
remediating canals, and support public outreach efforts by Monroe County. It is important that Monroe
Internet Address (URL) • httpJ/www.apa.gov
Recycled/Recyclable - Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 309% Postconsumer)
County and its partners continue to implement the CMMP to protect water quality, aquatic life, and
seagrasses for residents living along these canals.
The FKRAD was adopted as a FDEP order on February 7, 2012, and subsequently accepted by the EPA.
The FKRAD states that the management actions will be completed by 2015 and water quality
improvement in the halo zone and inland canals is expected by 2020. if it is determined by the FDEP or
the EPA that implementation of the FKRAD is not achieving the expected water quality improvements
for nutrients and dissolved oxygen, the impaired waterbodies will be reassessed and given a higher
priority for TMDL development. Again, thank you for your inquiry. If you have questions or need
additional information from the EPA, please contact Mr. Steven Blackburn of my staff at
(404) 562-9397.
Sincerely,
YamesD. Giattina
Director
Water Protection Division
FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
BOB MARTINEZ CENTER
2600 BLAIRSTONE ROAD
TALLAHASSEE, FLORIDA 32399-2400
September 10, 2015
Mr. George Neugent
1583 Eastward Ho Lane
Marathon, FL 33050
SUBJECT: FL Keys Restoration
RICK SCOTT
GOVERNOR
CARLOS LOPEZ-CANTERA
LT. GOVERNOR
JONATHANSTEVERSON
SECRETARY
Mr. Neugent,
This letter is intended to provide clarification on Monroe County's responsibilities to restore
water quality in the waters surrounding the FL Keys, including inland canals, under the
Secretarial adopted FL Keys Reasonable Assurance Document (FKRAD). The FKRAD was
developed to address nutrient impairments in the nearshore waters. The plan was completed and
implementation of the plan began in 2008. In 2011, the waters were re -assessed by DEP and
some of the inland canals were found to have low dissolved oxygen (DO) which did not meet the
water quality standard. This meant the canals were "impaired" and would be added to the State's
list of waters that need a Total Maximum Daily Load (TMDL) determination. The original
FKRAD did not include projects to specifically address DO impairments in the canals, but the
department decided to delay adding them to the "impaired" waters list because the work being
done under the existing plan would address the anthropogenic nutrient inputs contributing to low
DO in the canals. This meant a TMDL was not necessary at that time due to on -going
restoration activities. The canal restoration work that has been initiated addresses the other
factors (mainly hydrologic) contributing to low DO that are not covered under the FKRAD.
These efforts in conjunction with the nutrient reductions in the FKRAD provide the flexibility to
postpone TMDL development; however, if water quality standards for nutrients and dissolved
oxygen are not achieved under the FKRAD or through other restoration efforts, the waters will
be placed on the list for TMDL development. It is the department's hope that FKRAD
stakeholders will continue to meet their commitments detailed in the document and the
additional restoration efforts such that water quality standards will be achieved as expected by
2020.
Sincerely,
Y4_4 �.
www.dep.state fl.us
Julie Espy
Water Quality Assessment, Program Administrator
Division of Environmental Assessment and Restoration
zvunu.dep.state fl.us
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
Florida Department of Environmental Protection Web Information -
Frequently Asked Questions about Total Maximum Daily Loads
Frequently Asked Questions about Total Maximum Daily Loads
Source: Florida Department of Environmental Protection web page:
http://www.dep.state.fl.us/water/tmdl/; http://www.dep.state.fl.us/water/tmdl/faa.htm;
hftp://www.dep.state.fl.us/water/watersheds/bmap.htm
What is a Total Maximum Daily Load (TMDL)?
Total Maximum Daily Loads are quantitative analyses of water bodies where one or more water
quality standards are not being met, and are aimed at identifying the management strategies
necessary to attain those water quality standards. In essence, TMDLs describe the amount of each
pollutant a water body can receive without violating standards, and are characterized as the sum of
wasteload allocations, load allocations, and a margin of safety to account for uncertainties.
Wasteload allocations are pollutant loads attributable to existing and future point sources, such as
discharges from industry and sewage facilities. Load allocations are pollutant loads attributable to
existing and future nonpoint sources and natural background. Nonpoint sources include runoff from
farms, forests, urban areas, and natural sources, such as decaying organic matter and nutrients in
soil.
TMDLs take into account the water quality of an entire water body or watershed and assess all the
pollutant loadings into that watershed, rather than simply considering whether each individual
discharge meets its permit requirements. The management strategies that emerge from the TMDL
process may encompass everything from traditional regulatory measures, agricultural best
management practices and other pollution prevention measures, land acquisition, infrastructure
funding, pollutant trading, and the like. They also will include an overall monitoring plan to test their
effectiveness.
Why are TMDLs developed?
For the past twenty-five years, point source discharges have been regulated under the Clean
Water Act (CWA). Over time, it has become clear in many instances that every individual discharge
into a water body may meet effluent discharge requirements and yet that water body may still fail to
meet the standards defining good water quality. This circumstance has proved true even as the
limits on point source discharges have become more and more stringent, especially in
Florida. There clearly are other sources of pollution for which existing control measures are simply
not adequate. These sources are associated with diffuse runoff and habitat destruction, and
originate in both urban and rural areas.
The EPA requires states to set priorities for cleaning up impaired waters by establishing a TMDL
for each one. Under the authority of section 303(d) of the CWA, EPA requires that TMDLs be
developed where technology -based effluent limitations or other legally required pollution control
mechanisms are not stringent enough to protect water quality. Florida has hundreds of impaired
water bodies or water body segments that likely will have to be addressed through the
development and implementation of TMDLs.
The development of Total Maximum Daily Loads (TMDLs) will take place in the context of chapter
99-223. Laws of Florida, which details the process for listing impaired waters, determining which
waters will be subjected to TMDL calculations, adopting by rule those calculations and associated
allocations of pollutant loadings, and implementing the management strategies designed to reduce
the loadings and enable the water body to meet water quality standards.
How are TMDLs Established?
As noted, TMDLs are established for waters that fail to meet water quality standards, and
characterize how much of each pollutant the water body can assimilate without violating those
standards. The DEP considers future growth and development to the extent possible in
establishing a TMDL, and accounts for the pollutant inputs from all sources, including discharges
from industrial plants and sewage treatment facilities, runoff from farms, forests and urban areas,
and natural sources.
In deriving a TMDL and subsequently setting forth the mechanisms that may be employed to
enable the water body to meet standards, the DEP must balance the quantities of pollutants from
all sources so that the total amount does not exceed the limits necessary to maintain water quality.
Through these assessments, DEP can better determine permit effluent limits, best management
practices, pollution prevention strategies, and other resource management activities necessary to
ensure that waters are suitable for fishing, drinking, recreation, and aquatic life.
Using a TMDL approach for water bodies does not replace existing water quality control programs
or standard treatment technologies. It provides a framework for evaluating all possible water quality
control efforts and promotes closer coordination of local, state, and federal efforts to better
guarantee that we collectively meet water quality goals.
What is the 303(d) list?
Under section 303(d) of the Clean Water Act, every two years each state must identify water
bodies that do not meet water quality standards. These water bodies are "water quality -limited"
estuaries, lakes, and streams that fall short of surface water quality standards, and that are not
expected to improve within the subsequent two years. Florida's water quality standards are
designed to ensure that our waters can be used for their designated purposes, such as swimming,
drinking, industrial and agricultural uses, and wildlife habitat. Florida's 303(d) list identifies
hundreds of "impaired" water segments, with the four most common water quality concerns being
coliforms, nutrients, oxygen demanding substances, and turbidity. These water segments are
candidates for more detailed assessments of water quality and, where necessary, the development
and implementation of TMDLs.
How is the Florida 303(d) list developed?
The 303(d) list is developed based on the Florida Water Quality Assessment [305(b)
report]. Section 305(b) of the CWA requires states to report biennially to the EPA on their water
quality. The 305(b) report describes the existing programs to protect the quality of Florida's surface
waters, ground water, and wetlands. In the 305(b) report, water quality is evaluated using biological
data, chemistry data from the federal water quality database (STORET), violations of Florida's
water quality standards, mercury fish consumption advisories, qualitative nonpoint source
assessments, and other information solicited through public workshops. The information in the
report is reviewed and water bodies are placed on the 303(d) list of impaired waters based on
specific criteria designed to identify the highest priority water bodies in need of restoration based
on the best available data.
What is a Basin Management Action Plan (BMAP)?
It is the "blueprint" for restoring impaired waters by reducing pollutant loadings to meet the
allowable loadings established in a Total Maximum Daily Load (TMDL). It represents a
comprehensive set of strategies --permit limits on wastewater facilities, urban and agricultural best
management practices, conservation programs, financial assistance and revenue generating
activities, etc. —designed to implement the pollutant reductions established by the TMDL. These
broad -based plans are developed with local stakeholders --they rely on local input and local
commitment —and they are adopted by Secretarial Order to be enforceable.
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
Memorandum from Cynthia Hall, Assistant County Attorney
Re: Funding Alternatives, Canal Restoration Projects
MEMORANDUM
Office of the Monroe County Attorney
TO: Mayor and Commissioners:
Through: Bob Shillinger, County Attorney
FROM: Cynthia L. Hall, Assistant County Attorney
Cc: Assistant County Attorneys Pedro Mercado and Nat Cassel
DATE: September 8, 2015
SUBJECT: Funding Alternatives, Canal Restoration Projects
You requested a memo outlining alternatives for funding the following:
(1) Ongoing operation and maintenance costs for current pilot projects (after initial 2-
year period); and
(2) Construction costs for future canal restoration projects (rollouts of pilot projects); and
(3) Ongoing operation and maintenance costs for future canal restoration projects.'
BRIEF ANSWER
The County could likely use non -ad valorem special assessments to pay for the Project
Costs, provided they meet the two legal requirements (special benefit to the property, and fairly
and reasonably apportioned). Special assessments in turn can be used as a pledge for issuance of
revenue bonds.
The County could also use ad valorem taxes to pay for the projects. It is less likely that
the County could create a municipal service taxing unit (MSTU) to delineate a geographic area,
if it wishes to collect the taxes in something less than the unincorporated county as a whole.
While the County is authorized to create MSTUs under Section 125.01(1)(q), Fla. Stat., canal
improvement projects are not explicitly within the list of acceptable uses for a MSTU delineated
in the statute and there are no cases holding that similar types of projects can be funded using an
MSTU. Ad valorem taxes do not require a referendum.
1 Collectively, these costs are referred to herein as "Project Costs."
Assuming no legal challenges, the time period for levying a special assessment is
approximately twelve (12) months from the time of the first resolution until the day on which the
assessments begin to be collected. The time period for collection of ad valorem taxes is shorter
than special assessments: approximately six (6) months.
ANALYSIS
A. Special Assessments (With or Without the Creation of an MSBU) Could Be Used
For Canal Project Costs.
1. The Legal Test for Special Assessments.
"[A] valid special assessment must meet two requirements: (1) the property assessed
must derive a special benefit from the service provided; and (2) the assessment must be fairly
and reasonably apportioned according to the benefits received." Sarasota County v. Sarasota
Church of Christ, 667 So. 2d 180, 183 (Fla. 1995) (citing City of Boca Raton v. State, 595 So. 2d
25, 30 (Fla. 1992)).
a. Special Benefit
The test to determine whether a special benefit is conferred by the provision of a service
or construction of a public improvement was articulated in the case of Lake County v. Water Oak
Mgmt. Corp., 695 So. 2d 667 (Fla. 1997):
In evaluating whether a special benefit is conferred to property by the services for
which the assessment is imposed, the test is not whether the services confer a "unique"
benefit or are different in type or degree from the benefit provided to the community as a
whole; rather, the test is whether there is a "logical relationship" between the services
provided and the benefit to real property.
Id. at 669 (footnotes and internal citations omitted). In Lake County, the Supreme Court found
that there was a logical relationship between the services at issue (solid waste disposal and fire
protection services) and the properties at issue. In Lake County, the court found that there was a
logical relationship between the fire protection services and the properties. Id. ("[F]ire
protection services do, at a minimum, specially benefit real property by providing for lower
insurance premiums and enhancing the value of the property. Thus, there is a "logical
relationship" between the services provided and the benefit to real property.").
Several other Florida counties have levied special assessments for canal improvement
costs. See, e.g. Manatee County Chapter 2-23 (listing five canal dredging municipal service
benefit units (MSBUs)) and Manatee County Code section 2-2-51 (stating that the county is
authorized to impose special assessments for "construction, reconstruction, repair, renovation,
excavation, dredging, grading, stabilization, and upgrading of greenbelts, swales, culverts,
sanitary sewers, storm outfalls, canals, primary, secondary, and tertiary drains, water bodies,
marshlands, natural areas, and all or part of a comprehensive storm water management system,
including the necessary appurtenances and structures thereto and including, but not limited to
dams, weirs, and pumps); and St. Johns County, Florida, Ordinance No. 2013-23 (Treasure
Beach Canal MSBU) (attached).
I was unable to find any published decisions specifically involving special assessments
for canal improvement projects. However, special assessments have been upheld in other
decisions on the grounds that the assessments confer a special benefit on the properties that
benefit from stormwater utility facilities;2 law enforcement and mosquito control services;3
wastewater facilities and services;4 beach erosion facilities;5 and "all expenses including
purchase price" for the inland waterway then being constructed to run from Jacksonville to
Miami.b It is therefore reasonable to assume that a special assessment for canals would be
upheld in the event of legal challenge, provided the assessment meets other legal criteria.
b. Assessment Fairly and Reasonably Apportioned
Assessed costs must be apportioned among the benefited parcels in a manner consistent
with the logical relationship to the property of the service or improvement assessed. The method
of apportionment can vary within the legislative discretion of the governing body. See Meyer v.
City of Oakland Park, 219 So. 2d 417, 419 (Fla. 1969) (upholding sewer assessment based on
square footage of property); Sarasota County v. Sarasota Church of Christ (upholding a
stormwater assessment that differentiated between residential and commercial properties, and did
not assess vacant properties); State v. Sarasota County, 693 So. 2d 546 (Fla. 1997) (upholding a
stormwater assessment that imposed a higher rate on developed properties with impervious
surfaces than those without impervious surfaces, on the grounds that the former contributed more
to stormwater runoff).
In Morris v. City of Cape Coral, 163 So. 3d 1174 (Fla. 2015), the Florida Supreme Court
recently held that a two-tier assessment for fire protection services was fairly and reasonably
proportioned. In this assessment program, all properties received the same base assessment (Tier
1, covering 70% of total fire service costs), and developed properties were assessed an additional
amount based on the value of structures and other improvements on the property (Tier 2). The
Supreme Court upheld the two-tier methodology:
By adopting the approach recommended in the study, the City has attempted to
apportion the costs based on both the general availability of fire protection services to
everyone (Tier 1) and the additional benefit of improved property owners of protecting
structures from damage (Tier 2). We have not previously addressed a bifurcated
` Sarasota County v. Sarasota Church of Christ, 667 So. 2d at 186-87.
3 Quietwater Entm't, Inc. v. Escambia Cnty., 890 So. 2d 525, 526 (Fla. Dist. Ct. App. 2005).
4 Citizens Advocating Responsible Envtl. Solutions, Inc. v. City of Marco Island, 959 So. 2d 203, 207 (Fla. 2007).
5 "[F]inancing of restoration and extension of ocean beaches by sands brought in from offshore dredging by general
obligation bond was not improper on theory that only property owners alongside ocean shore would be benefited
and therefore the erosion problem should be financed by special assessment." Hillsboro Island House Condo.
Apartments. Inc. v. Town of Hillsboro Beach, 263 So. 2d 209 (Fla. 1972).
6 State ex rel. Board of Commissioners of Florida Inland Nay. Dist. v. Latham, 163 So. 890 (Fla. 1935).
approach to fire service assessments. However, this sort of approach closely resembles
the approach we approved in Sarasota Church of Christ.
It is likely that the County could construct a two tiered assessments program, in which
Tier I would be an assessment for all properties, and Tier 2 would be an assessment for "wet"
lots adjacent to the benefited canals.
If the construction costs for the rollout are included within the Project Costs, it is quite
possible that property owners may complain, on the grounds that the owners at the pilot stage did
not pay the construction costs. I was unable to find any cases addressing this. Current cases
addressing the "apportionment" prong focus on apportionment vis-a-vis other properties within
the benefit area, rather than the cost of an assessment in one program or MSBU vis-a-vis the cost
of an assessment in another program or MSBU.
2. Defining the Geographic Area / Setting up a Municipal Service Benefit Unit
The County has the authority under Section 125.01(1)(q), Fla. Stat., to create a municipal
service benefit unit (MSBU) to receive the assessments. 7 MSBUs are not required for special
assessments, because the geographic areas in which the assessments are imposed are delineated
in any event by the initial and final assessment resolutions, as required by Section 197.3632, Fla.
Stat. However, for the purpose of this discussion, this memo will use the word "MSBU" to mean
"the geographic area in which the assessment is levied."
One of the challenges will be how to define the MSBU, in a way that means that the costs
are fairly apportioned among the benefited parcels "in a manner consistent with the logical
relationship to the property of the service or improvement assessed." A few thoughts:
• Because property owners in the pilot projects do not have to pay for construction
costs (only future maintenance costs), it would make sense to create separate
MSBUs for the existing pilot projects to collect the assessments for those future
maintenance costs. A separate MSBU could be created for each pilot project
location, unless the future maintenance costs can be grouped and averaged.
Multiple MSBUs could be created to cover all properties serviced by a particular
type of technology at time of rollout — for example, "all properties covered by the
muck removal process". The advantage to having one MSBU per type of
technology is that the costs are likely to be similar, if not exactly the same. The
disadvantage of this approach is that it is possible that the MSBU could hold
properties in very different parts of the Keys, and it would be more difficult to
argue that the properties receive the overall "Tier 1" benefit of water quality
improvement. If the cost of the technology is different in one part of the Keys
than another, it also becomes more difficult to argue that a common assessment
represents a "local relationship ... [with] the service or improvement ...."
The term "taxing unit" is used when taxes are being collected, and the term "benefit unit' is used when special
assessments are being collected. See Madison County v. Foxx, 636 So. 2d 39, 42 n.8 (Fla. I" DCA 1994) (citing
amici curiae brief filed by Robert I. Nabors, Esq. of Nabors, Giblin & Nickerson on behalf of FACA).
• Alternatively, one MSBU could be created to collect assessments for all the canal
technologies in the aggregate. It might be more difficult to make an argument
that each property within the MSBU has a "logical relationship [with] the service
or improvement assessed" if different canals have different technologies (and
different associated costs). S
• The assessment does not have to represent 100% of the Project Costs. The
Commissioners can make a policy decision to limit the assessment to a portion of
the overall Project Costs, as was done with wastewater.
3. Timetable for Special Assessments
The following sequence of events required for a special assessment is laid out in Section
197.3632, Fla. Stat., the uniform method for collection of non -ad valorem assessments. There is
approximately a 12-month time period between when the County adopts its first resolution and
when the assessment appears on a tax bill (barring unforeseen delays, including legal
challenges).
Prior to January of the year in which the special assessment will be levied for the
first time, the County must adopt a resolution stating its intent to use the uniform
method to levy and collect the assessments. The resolution must be approved at a
public hearing after published notice. The resolution must be sent to the Property
Appraiser and the Tax Collector by January 10. (F.S. 197.3632(3).) The
resolution simply states the County's intent to use the uniform method.
Therefore, the Project Costs are not needed for the language of the resolution,
however, in the past, the Commissioners have expressed a preference for knowing
the figure at this point before proceeding.
• In April — June of the year in which the assessment will be levied, the County
must adopt an initial assessment resolution (IAR). In order to prepare the IAR,
County staff and consultants will need to know the total Project Costs (whatever
will be covered by the assessment) by January or February. Following adoption,
the assessment roll is prepared. (F.S. 197.3632(3).)9
• July (August at the latest), the County adopts the final assessment resolution, after
a public hearing. (F.S. 197.3632(4).)
° St. Johns County has created the Treasure Beach Canal MSBU. Inquiries with the St. Johns County Attorney's
Office regarding that MSBU are pending. Camille Tharpe from GSG also advises that she has worked with a
number of counties setting up MSBUs for canal projects, but I have not yet had a conversation with her about the
methodology, particularly with respect to (a) different technologies and (b) non-contiguous geographical areas.
9 The County currently has two chapters in Monroe County Code laying out the procedure for levying and
collecting special assessments: Chapters 20 (Wastewater) and 21 (Solid Waste). If the County were to adopt a
canal assessment, we would need either to add a new chapter for the canal assessments, or move the two existing
assessment programs into one new chapter and add language about the canal assessment.
• The assessment roll is certified by September 15. The non -ad valorem
assessments will appear on the tax bill issued on November 1. (F.S. 197.3632(5),
(7)•)
Non -ad valorem assessments are collected beginning on November 1. The funds are
remitted periodically to the County by the Tax Collector (weekly for the first several months, and
then monthly).
Special assessments can be collected in phases. For example, the County could initially
adopt the resolution collecting assessments to cover maintenance costs only for the pilot projects
only, and could wait until a subsequent tax year to adopt the resolution imposing special
assessments for the rollout phase.
B. Ad Valorem Taxes Can Be Also Used For Canal Project Costs.
The Florida Constitution and Section 125.01(1), Fla. Stat., grant to all county governing
bodies all powers not inconsistent with general or special law. This includes, but is not limited
to, the power to establish and administer programs of navigation and drainage; 10 provide and
regulate water and alternative water supplies; and "[p]erform any other acts not inconsistent with
law, which acts are in the common interest of the people of the county, and exercise all powers
and privileges not specifically prohibited by law."11
Concomitant with the grant of authority to perform the acts is the need to raise money.
Thus, Section 125.01(1)(r) grants to counties the power to levy and collect taxes, both for county
purposes and for the providing of municipal services within any municipal service taxing unit, as
well as special assessments.12
The maximum millage levied for all county purposes may not exceed ten mills in the
aggregate for county purposes. Art. VII, s. 9(b), Fla. Const.; AGO 89-89.13 Subject to consent
by ordinance of a governing body of an affected municipality, an MSTU may include all or part
of the boundaries of a municipality.
10 Section 125.01(1)0), Fla. Stat.
11 Section 125.01(l)(w), Fla. Stat.
lz Section 125.01(1)(r), Fla. Stat.
The constitutional millage limitation in Art. VII, s. 9(b) is as follows:
• 10 mills for the county;
• 10 mills for municipal purposes;
• to the extent authorized by law, a county furnishing municipal services may levy additional taxes within the
limit for municipal purposes;
• special districts may levy a millage authorized by law and approved by voters; and
• the 10 mill limitations for counties and municipal purposes may be exceeded, but only for approved by
electors for (a) two years for general governmental purposes or (b) payment of bonds.
Stat.14
No referendum is required for the levy of ad valorem taxes. Section 125.01(1)(r), Fla.
C. Creation of an MSTU Is Required For Levy of Taxes In Less Than The Entire
Unincorporated Area of the County.
Counties are authorized by Sections 125.01(l)(q) and (r), Fla. Stat., to establish MSTUs
or MSBUs in order to collect taxes or assessments for certain purposes on less than a countywide
basis, in the unincorporated area of the county.
An MSTU must be created for the collection of taxes on something less than a
countywide basis. 15
The list of purposes for which an MSTU (or MSBU) may be created is outlined in
Section 125.01(1)(q):
(1) The legislative and governing body of a county shall have the power to carry
on county government. To the extent not inconsistent with general or special law, this
power includes, but is not restricted to, the power to:
(q) Establish, and subsequently merge or abolish those created hereunder,
municipal service taxing or benefit units for any part or all of the
unincorporated area of the county, within which may be provided fire
protection; law enforcement; beach erosion control; recreation service and
facilities; water; alternative water supplies, including, but not limited to,
reclaimed water and water from aquifer storage and recovery and
desalination systems; streets; sidewalks; street lighting; garbage and trash
collection and disposal; waste and sewage collection and disposal; drainage;
transportation; indigent health care services; mental health care services;
and other essential facilities and municipal services from funds derived
14 Section 125.012(2) also grants to "any county and the board of county commissioners" the power to construct,
maintain, repair and operate any project as defined in s. 125.011", and also the power to "construct and improve ...
all navigable and nonnavigable waters" as well as the authority to "construct and maintain such canals, slips, turning
basins, and channels and upon such terms and conditions as may be required by the United States ...." F.S.
125.012(1) and (2). F.S. 125.011(2)(a) even specifically defines the term "project" to include canals. However, F.S.
125.011(1) specifically defines the term "county" as used in sections 125.011 through 125.019 as a charter county
operating under a home rule charter adopted pursuant to ss. 10, 11, and 24, Art. VIII of the Constitution of
1885, as preserved by Art. VIII, s. 6(e) of the Constitution of 1968 (emphasis added). No court has held that the
term as used in these sections applies to a non -charter county. While Monroe County's ability to adopt a charter
under Art. VIII, s. 10 of the 1885 Constitution was preserved in Art. VIII, s. 6 of the 1968 Constitution, that process
contemplates consolidating any or all local governments within Monroe County with the City of Key West.
Accordingly, while this certainly is a theoretical option, it is not likely to be pursued. A simpler option would be to
seek a legislative change to the definition of the term county in F.S. 125.01 l(1).
15 An MSBU is optional but not required for collection of special assessments, because the statutory method for
levying and collecting a special assessment using the uniform method outlined in Section 197.3632, Fla. Stat. allows
the Board of County Commissioners to define the properties to be covered by the assessments via a resolution
adopted after a publicly -noticed hearing, without the need for an MSBU.
Stat. to No referendum is required for the levy of ad valorem taxes. Section 125.01(1)(r), Fla.
C. Creation of an MSTU Is Required For Levy of Taxes In Less Than The Entire
Unincorporated Area of the County.
Counties are authorized by Sections 125.01(1)(q) and (r), Fla. Stat., to establish MSTUs
or MSBUs in order to collect taxes or assessments for certain purposes on less than a countywide
basis, in the unincorporated area of the county.
An MSTU must be created for the collection of taxes on something less than a
countywide basis. 15
The list of purposes for which an MSTU (or MSBU) may be created is outlined in
Section 125.01(1)(q):
(1) The legislative and governing body of a county shall have the power to carry
on county government. To the extent not inconsistent with general or special law, this
power includes, but is not restricted to, the power to:
(q) Establish, and subsequently merge or abolish those created hereunder,
municipal service taxing or benefit units for any part or all of the
unincorporated area of the county, within which may be provided fire
protection; law enforcement; beach erosion control; recreation service and
facilities; water; alternative water supplies, including, but not limited to,
reclaimed water and water from aquifer storage and recovery and
desalination systems; streets; sidewalks; street lighting; garbage and trash
collection and disposal; waste and sewage collection and disposal; drainage;
transportation; indigent health care services; mental health care services;
and other essential facilities and municipal services from funds derived
14 Section 125.012(2) also grants to "any county and the board of county commissioners" the power to construct,
maintain, repair and operate any project as defined in s. 125.011", and also the power to "construct and improve ...
all navigable and nonnavigable waters" as well as the authority to "construct and maintain such canals, slips, turning
basins, and channels and upon such terms and conditions as may be required by the United States ...." F.S.
125.012(1) and (2). F.S. 125.011(2)(a) even specifically defines the term "project" to include canals. However, F.S.
125.011(1) specifically defines the term "county" as used in sections 125.011 through 125.019 as a charter county
operating under a home rule charter adopted pursuant to ss. 10, 11, and 24, Art. VIII of the Constitution of
1885, as preserved by Art. VIII, s. 6(e) of the Constitution of 1968 (emphasis added). No court has held that the
term as used in these sections applies to a non -charter county. While Monroe County's ability to adopt a charter
under Art. VIII, s. 10 of the 1885 Constitution was preserved in Art. VIII, s. 6 of the 1968 Constitution, that process
contemplates consolidating any or all local governments within Monroe County with the City of Key West.
Accordingly, while this certainly is a theoretical option, it is not likely to be pursued. A simpler option would be to
seek a legislative change to the definition of the term county in F.S. 125.01 l(1).
is An MSBU is optional but not required for collection of special assessments, because the statutory method for
levying and collecting a special assessment using the uniform method outlined in Section 197.3632, Fla. Stat. allows
the Board of County Commissioners to define the properties to be covered by the assessments via a resolution
adopted after a publicly -noticed hearing, without the need for an MSBU.
from service charges, special assessments, or taxes within such unit only.
This paragraph authorizes all counties to levy additional taxes, within the
limits fixed for municipal purposes, within such municipal service taxing
units under the authority of the second sentence of s. 9(b), Art. VII of the
State Constitution.
A new MSTU will probably be required. Chapter 22 of the Monroe County Code, Article
Il, the codification of Ordinance 5-1977, sets up eight (8) MSTUs for law enforcement, beach
erosion control, recreation service and facilities, streets, sidewalks, street lighting, drainage or
transportation equipment; four (4) MSTUs for fire and EMS in addition to the above; plus one
(1) MSTU to raise money for local road patrol law enforcement.16 Article Il provides rules
applicable to the governing bodies of these MSTUs. (Separately, Articles III through VI creates
ten (10) additional MSTUs specific to the collection of ad valorem taxes for wastewater and/or
reclaimed water projects.)
None of the existing MSTUs appears to match the canal restoration project, either in the
stated purpose or in the description of the anticipated geographic boundaries. Therefore, if ad
valorem taxes are used to fund the project, and if an MSTU is required, a new MSTU should be
created.
The time period for collecting ad valorem taxes is approximately six (6) months if an
MSTU is required.
ADDITIONAL OPTIONS
Additional options for funding the canal restoration program include state and federal
sources of funding including but not limited to funds generated through Amendment 117 and
RESTORE Act18 funds. These options are beyond the scope of this memo.
16 The provisions regarding MSTUs and MSBUs are within Chapter 22 ("Special Districts") despite the fact that
MSTUs and MSBUs are not special districts. See AGO 92-31. Special districts are created pursuant to Section
125.01(5)(a), whereas taxes and special assessments are levied pursuant to Section 125.01(1)(q) and (r).
17 Art. X, s.28, Fla. Const., the Land Acquisition Trust Fund.
is 33 U.S.C.A. s. 1321
8
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
An Existing Monroe County Example of a Privately Funded Canal Restoration -
Breezeswept Beach Estates Municipal Service Culvert District
BOARD OF COUNTY CQMMISSIONERS
AGENDA ITEM SUMMARY
MeatUg Drat: September 4, 2002 Division: County Attorney
AGENDA ITEM WORDING:
Approval of an ordinance creating the Breezeswept Beach Estates Municipal Service
Culvert District with authority to levy a one time per lot assessment of approximately
$670 for acquisition of land and Installation of a culvert to improve the water quality
Of the seventeen canals within the District; approval of advertising 4 times a. public
hearing for a Resolution directing the Clerk to send certified copy of Resolution to
Property Appraiser, Tax Collector, and Florida Department of Revenue; approval of
placement on the ballot at the General Election In Monroe County to be held on
November 5, 2002, the referendum question: Should there be created Within the
Service Culvert District with authority to levy a one time per lot assessmBreezeswept Beach Estates Subdivision the Breezeswept Beach Estates Munient of
cipal
approximately $670 for the Installation of a culvert to improve the water quality of
the seventeen canals within the District?
ITEM BACKGROUND:
Homeowners In subdivision have requested, by vote of Homeowners Assodationce
referendum on general election ballot. , plament of
PREVIOUS RELEVANT BOCC ACTION:
May 16, 2002, and August 21, 2002 approval to advertise public hearing.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: BUDGETED: Yes D No o
COST TO COUNTY:
APPROVED BY: County Attorney MBOur+chasi 0 Risk mJ Management D
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included 7 ]AMES T. ENORICK
To Follow n of Required O
AGENDA ITEM # �, /
Board of County Commissioners
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORID& CREATING THE BREEZESWEPT BEACH
ESTATES MUNICIPAL SERVICE CULVERT DISTRICT WITH AUTHORITY
TO LEVY A ONE TIME PER LOT ASSESSMENT OF ApPROXZMATELY
$670 FOR ACQUISITION OF LAND AND INSTALLATION OF A CULVERT
TO IMPROVE THE WATER QUALITY OF THE SEVENTEEN CANALS
WITHIN THE DISTRICT; PROVIDING THAT THE ASSESSMENTS -MAY
BE COLLECTED AS MON-AD VALOREM ASSESSMENTS OR AD VALOREM
ASSESSMENTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH;
PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA that:
mil. The Breezeswept Beach Estates Municipal Service Culvert District
(hereafter District) Is created under Sec. 125.01(1)(q) and (r), Fla. Stat. The District
consists of the Breezeswept Beach Estates Subdivision, Plat Book 4 at Page 143, less Block
19, Lots 1 - 99. The Monroe County Board of County Commissioners has determined that
the real property In the District will be specially benefited by the Improvements described In
Section 3.
52GUM 2• The governing body of the District Is the Monroe County Board of
County Commissioners. The Chairman of the governing body is the Mayor.
. The District purpose is to Improve the water circulation and quality of
the canals located in the District through installation of a culvert under West Indies Drive
and Block 19, Lot 32 of Breezeswept Beach Estates Subdivision. The governing body has
all the authority granted by general law necessary to carry out the District purpose
Including borrowing funds through the sale of District tax anticipation notes or warrants.
,=an-1 The estimated cost of the acquisition of land and the Installation of a
culvert, Including design and administrative cost, required to improve the water circulation
In the District canals Is approximately $336,000. That estimate, when broken down on a
per lot basis, is approximately $670 per lot. Therefore, each lot in the District Is to be
assessed the amount of $670, without regard to lot ownership unless the owner is exempt
under state law. The per lot assessment may be Increased by the sum necessary to cover
the expense of borrowing the estimated Installation costs through tax anticipation notes or
warrants if the governing body so elects. The District assessments may be collected as
non -ad valorem assessments or as ad valorem assessments by Florida . Statute. The
method of assessment shall be set by resolution of the Board of County Commissioners.
In addition, the District budget must be approved under all general laws applicable to the
adoption and preparation of county budgets.
01100. The District funds must be received, held and secured by the Clerk of
the Circuit Court In the same way as other County funds. The DI trict funds must be
maintained in a separate account and may only be used for the purposes authorized by this
ordinance. The District funds may only be disbursed on the direction of the governing body
under a requisition signed by the Chairperson/Mayor and countersigned by the Clerk.
S9010-fi. If any section, subsection, sentence, clause or provision of this
ordinance Is held Invalid, the remainder of this ordinance shall not be affected by such
Invalidity.
Section 7• All ordinances or parts of ordinances in conflict with this ordinance are
hereby repealed to the extent of said conflict.
sooka.& The provisions of this ordinance shall be included and incorporated in
the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment
thereto, and shall be appropriately renumbered to conform to the uniform numbering
system of the Code.
5202112, This ordinance must be flied In the Office of the Secretary of State of
the State of Florida, but will not take effect until a referendum approving the ordinance has
been passed by a majority of the electors of the District voting In the referendum, and an
easement for the proposed culvert has been granted and recorded In the Official Records of
Monroe County, Florida.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at
a regular meeting of said Board held on the day of 2002.
Mayor Charles McCoy
Mayor Pro Tern Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner Bert ?imenez
(SEAL)
Attest: DANNY L.KOLHAGE, perk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
�' By
veputy Clerk Ma or/Chas
Y rperson
jdTDord
APPROVED As TO FOR
AND AL SUFFaa
BY
i4NE H OP!
OP!
A TC
NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that the Board of County Commissioners of
Monroe County, Florida, have caused to be placed on the ballot at the General Election In Monroe
County to be held on November 5, 2002, the following referendum question:
CREATION OF BREEZESWEPT BEACH ESTATES
MUNICIPAL SERVICE CULVERT DISTRICT
TO IMPROVE DISTRICT CANAL WATER QUALITY
"SHOULD THERE BE CREATED WITHIN THE BREEZESWEPT BEACH ESTATES
SUBDIVISION THE BREEZESWEPT BEACH ESTATES MUNICIPAL SERVICE CULVERT
DISTRICT WITH AUTHORIN TO LEVY A ONE TIME PER LOT ASSESSMENT OF
APPROXIMATELY W0 FOR THE INSTALLATION OF A CULVERT TO IMPROVE THE
WATER QUALITY OF THE SEVENTEEN CANALS WITHIN THE DISTRICT"
YES for the creation of the District
NO against the creation of the District
Only those electors residing In the Breezeswept Beach Estates Subdivision less Block 19, Lots 1 -
99, may vote In the referendum.
Avlsase a los Interesados quienes por la presente vleren, que la ]unta de Comisionados del Condado
de Monroe, la Florida, ha determinado someter a votadon durante los Comidos Generates, que
tendran lugar el S de noviembre, 2002, at siguiente asunto en referendum:
LA CREACION DEL DISTRITO DE SERVICIO MUNICIPAL DE
DESAGUE DE BREEZESWEPT BEACH ESTATES PARA MEJORAR
LA CALIDAD DEL AGUA EN LOS CANALES DEL DISTRITO
DEBERA CREARSE, DENTRO DE LA URBANIZACION BREEZESWEPT BEACH ESTATES,
EL DISTRITO DE SERVICIO MUNICIPAL DE DESAGUE DE BREEZESWEpT BEACH
ESTATES, CON AUTORIDAD PARA GRAVAR, UNA SOLA Y UNICA VEZ, UN IMPUESTO
POR PARCELA DE APROXIMADAMENTE $670 PARA LA CONSTRUCCION DE DESAGUES
DE DRAWE PARA MEJORAR LA CALIDAD DE AGUA EN LOS CANALES DENTRO DEL
REFERIDO DISTRITO?"
SI Para la creadon del distrito
NO en contra de la Creaclon del distrito
Solamento aquellos votantes residentes en la Urbanizadon Sree2eswept Beach Estates, menos
Parcelas i - 99 en Bloque 19, padran voter en el referendum.
DATED at Key West, Florida, this day of 2002.
(SEAL) DANNY L KOLHAGE, Clerk of the Circuit Court
and ex offido Clerk of the Board of County
Commissioners of Monroe County, Florida
P
i
Board of County Commissioners
•200
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA TO USE THE UNIFORM AD VALOREM
METHOD FOR THE COLLECTION OF ASSESSMENTS IN THE
BREEZESWEPT BEACH wESTATES SUBPZVISION MUNICIPAL SERVICE
COUNTY,
BE IT RESOLVED BY THE BOARD
FLORIDA: OF COUNTY COMMISSIONERS OF MONROE
Uction The Board of County Commissioners as the governing body of the
Breezeswept Beach Estates Subdivision Municipal Service Culvert District (District) declares
Its intent to use the uniform ad valorem method for the collection of non -ad valorem
assessments as authorized by Sec. 197.3632, Fla. Stat., or ad valorem assessments as
authorized by Sec. 200.066, Fla. Stat. The assessments will be levied against non-exempt
real property within the District. The District is more particularly described as follows:
Breezeswept Beach Estates Subdivision as recorded in Plat Book 4 at Page 143.
SAUMZ The canal water quality within the District is poor. The levy is needed to
finance the Installation of a culvert under West Indies Drive and Block 19, Lot 32 of
Breezeswept Beach Estates Subdivision, to Improve the circulation of water in the canals of
the District and hence to improve water quality.
SAGU911Z The Clerk is directed to send certified copies of this Resolution by
September 12002, to:
a) The Property Appraiser
b) The Tax Collector
c) The Florida Department of Revenue
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 2002. day of
Mayor Charles McCoy
Mayor Pro Tern Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neagent
Commissloner Bert Jimenez ---
(SEAL)
Attest: DANNY L.KOUJAGE, Clerk BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
Deputy Clerk By
WiDRes Mayor/Chaltperson
APPROVED AS TO F
AND GA' SUFFICI
BY
NE ON
Hate 2—
rrialhtalned In a separate account and may only be used for thePurposes
ordinance. The District funds may only be disbursed on the dlrWon Of the governng body
under a requisition signed by the Chas rperson/Mayor and countersigned by the Clerk.
• If any section, subsection, sentence, clause or
vision of this
ordinance is held invalid, the remainder of this ordinance shall not be aroffected by such
Invalidity.
All ordinances or parts of ordinances In conflict with this ordinance are
hereby repealed to the extent of said conflict.
&WIML& The provisions of this ordinance shall be included and Incorporated in
the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment
thereto, and shall be appropriately renumbered to conform to the uniform numbering
system of the Code. g
5909119-L This ordinance must be filed In the Office of the Secretary of State of
the State of Florida, but will not take effect until a referendum approving the ordinance has
been passed by a majority of the electors of the District voting in the referendum, and an
easement for the proposed culvert has been granted and recorded In the Official Records of
Monroe County, Florida.
PASSED AND ADopTED by the Board of County Commissioners of Monroe County, Florida, at
a regular meeting of said Board held on the
day of 2002_
Mayor Charles McCoy
Mayor Pro Tern Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner Bert ]lmenez
(SEAL)
Attest: DANNY LKOLHAGE, Clerk
By
ueAutY Clerk
)dTDord
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
Mayor/Chairperson
APPROVED AS TO FO
AND t SUM 1 Y
RY SuZANNE A UTT
....� 2 0
. NOTICE OF R�oeu
N0710E IS HEREBY GIVEN TO WHOM IT MAY CONCERN that the Boa
Monroe County, Florida, have caused to rd of County be placed on the ballot at the General Election In s of
County to be held on November S, 2002, the following referendum question:
CREATION OF BREEZESWEPT BEACH ESTATES
MUNICIPAL SERVICE CULVERT DISTRICT
TO IMPROVE DISTRICT CANAL WATER QUALITY
"SHOULD THERE BE. CREATED WITHIN THE BREEZESWEPT BEACH ESTATES
SUBDIVISION THE BREEZESWEPT BEACH ESTATES MUNICIPAL SERVICE CULVERT
DISTRICT WITH AUTHORITY TO LEVY A ONE TIME PER LOT ASSESSMENTAPPROXIMATELY $670 FOR THE INSTALLATION OF A CULVERT TO IMPROVE THOF
E
WATER LITY OF THE SEVENTEEN CANALS WITHIN THE DISTRICT7"
QUA
YES for the creation of the District
NO against the creation of the District
Only those electors residing in the Breezeswept Beach referendum. Estates Subdivision may vote in the
AVisase a los Interesados quienes por la presents vieren
de Monroe, la Florida, he determinado someter a votaclon durante los Com(cios Generales, ue
tendran sugar el 5 de noviembre, 2002, el sigulente asunto en laJu
ntade Comisionados del Condado
erendum:
q
LA CREACION DEL DISTRICO DE SERVICIO MUNICIPAL DE
DESAGUE DE BREEZESWEPT BEACH ESTATES PARA MEJORAR
LA CALIDAD DEL AQUA EN LOS CANALES DEL DISTRICO
" DEBERA CREARSE, DENTRO DE LA URBANIZACION BREEZESWEPT BEACH ESTATES,
EL DISTRITO DE SERVICIO MUNICIPAL DE DESAGUE DE
POT ESTper• CON AUTORIDAD PARA GRAVAR, UNA SOLA Y UNI BREEZ, Uly IM BEACH
CELA DE APROXIMADAMENTE $670 PARA LA CO . UN IMPUESTO
DE DRANA7E PARA MEJORAR LA CALIDAp DE AGUA EN UCCION DE DESAGUES
REFERIDO DISTRITO7" CANALES DENTRO DEL
SI Para la creadon del dLstrito
NO en contra de la creadon del distrito
nto
en el refer ndum. votantes residentes on la Urbanlzaclon Breezeswept Beach Estates padran voter
en el referendum.
DATED at Key West, Florlda, this
___ day day of 2062.
(SEAL) DANNY L.. KOLHAGE, Clerk of the Circuit Court
and eX ofTldo Clerk of the Board of County
Commissioners of Monroe County, Florida
Municipal CodR QWpOrSti"
Municipal Code Corporation
infoS-warnunicode cam
P.O. Boa 2235
Tallahassee, FL 32316-2235
Monroe County, FIB Code of Ordinances • 1979(11270)
Supplement 78
Recorded:1=2002 I:50:26 PM
We have received the following material through Nand Copy .
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ordinances received. If you have any questions please contact us at the phone number or
email address listed below.
Thank you for your assistance and cooperation.
D( unwm
[AdlopliAM
Descrition
Ordinance No. 023-
/4/2002
testing die Breezeswept Beach Estates Municipal Service
002
ett District.
finance No. 022.
8/217e,
ding for the establishment of the School Crossing Guard
2002
Fund.
Ordinance No. 021-
8/21/2002
Amending Sec. 11-12, to implement the Dori Slosberg Education
2002
Safet Act.
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Contact the distribution department at: dt#9M9 .munlcode.com C:)r-=-
oar_
.., a
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a
1 •Ift
0
Go
Board of County Commissioners
63
AN ORDINANCE OF THE BOARD OF, COUNTY COMMISSIONERS OF
MONRgiL COUNiYr FLOitIDA, CREATING THE BREEZRSNIEPT BEACH
ESTATES fKUNIQPAL SI�RVICE CRL-VERT, DISTRICT WITH AUTHORITY
T0` LEVY A ONE TINE#1PER LOT A ASSESSMENT OF APPROXIMATELY
$670 FOR ACQUISITION OF LAND AND INSTALLATION OF A CULVERT
TO IMPRiO'VE, THE WATER QUALITY OF THE SEVENTEEN CANALS
WITNIN'!HE DISTRICT; PROVIDING THAT THE ASSESSMENTS MAY
BE COLLECTED AS NONO VALOREM„ASSESSMENTS OR AD VALOREM
M ASSESSENTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR
THE REPEAL OF ALL'^ -ORDINANCES INCONSISTENT HEREVVM;
PROVIDING FOR INCORPORATIQN'Uir6TtiE,MONROE COUNTY CODE
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA Ithit-
secuon
• Sectiol, 5 The District funds must be received, held and secured by the Clerk of
the 'Circuit Court in the same way as other County ftmds. The District funds must be
maintained in a separate account and may only be used for the purposes authorized by this
ordinance. The District funds may only be Clerk.
disburssed governing body
under a requisition signed by the Chakperson/M yo< and countersigned by i
Section. If any section, subsection, sentence, clause or provision of this
ordinance is held invalid, -the remainder of this ordinance shall not be affected by wuch
invalidity.
ftoon . All ordinances or parts of ordinances in conflict with this ordinance are
hereby repeated to the extent of said conflIcL
Sedjon_8, The provisions of this ordinance shall be Included and incorporated in
the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment
thereto, and shall be appropriately renumbered to conform to the uniform numbering
system of the Code.
S%UM 9. This ordinance must be filed in the Office of the Secretary of State of
the State of Florida, but w411 not take effiect until a referendum approving the ordinance has
been passed by a majority of the electors of the Distrid voting In the referendum, and an
easement for the proposed culvert has been granped and recorded In the OMdal Records of
Monroe County, Florida.
. PASSED AND ADOPTED by the Board of County Commisslonew of Monroe County, Florida, at
aspVcLa meeting of said Board held on the grh day of September_ , 2002.
Charles McCoy _Yes_
Tem Dbde Spehar Yss--.—
MN
Murray Nelson -Tsa—
George Neugent Ewa
Bert nnuenez -Zen--
BOARD OF COUNTY COMMISSIONStS
Clerk OF MONROE COUNTY,
Mayor irperson
jdTDord
3
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ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
Principles and Practices of Effective Canal Management Program Development
Strategies for Development of a Canal Management Plan — Principles and Practices
Provided by Elizabeth Treadway, AMEC Foster Wheeler
Principles for Effective Program Development:
1. Definition of Level and Extent of Service
The concepts of "level" and "extent" of service address the roles and responsibilities for engaged
agencies and organization in the delivery of services to manage infrastructure. The Level of Service sets
forth the frequency, investment, and resource allocation for each. LOS is often stated in terms of the
defined outcomes by establishing metrics such as:
a. Number of households served.
b. Frequency of inspections, repairs, cleaning, dredging, litter patrol.
c. Miles of system cleaned.
Extent of service is defined in terms of the overall components that are assigned to each agency or
organization. In the water/wastewater industry this can be defined as the treatment, distribution and
collection systems located in public right of way and ending at the connection of laterals. The Level and
Extent of Service are important concepts and policies to establish so that all parties understand their
appropriate roles and the limits of their liability.
2. Financial Responsibility — Principles for Infrastructure Management
The delivery of publicly funded services in the management of infrastructure is historically based in both
legal structure (ordinances, easements, authorizations) and in practice. Where legal structure is not
explicit, and does not clearly assign a public responsibility, we often look to historical practice. In
financing for infrastructure, if a government agency has consistently delivered a service over time
without explicit authorization by laws, regulations, charters or ordinance, the responsibility is assumed
to fall to the government agency and it is most difficult to change. Providing resources to solve
problems, address service needs, and repair or replace infrastructure is presumed. Likewise, if the
agency has not taken action by practice or legal authority, then the decision to take on infrastructure
management responsibility financially is equally challenging. When this is the case, it is important to:
a. Engage the affected public in an open and transparent dialog regarding the services, goals
and priorities of the community.
b. Build a compelling case for addressing the infrastructure needs through public resources,
with known purpose and desired outcomes.
c. Determine the customer being served, either as a subset of the general public or more
broadly for the good of all within the community.
d. Clarify all the roles and responsibilities for each partner (i.e., local, state and federal
government agency, private citizen, collaborative partners).
e. Define the funding methodology that aligns with the services to be delivered, the
community goals and assigned responsibilities.
Summary of Services and Principles Found in Other Communities in Florida with Residential Canals
1. Canals are managed as public waters (i.e., waters of the county or the city), with open access,
similar to roadways.
2. Dumping of debris and other materials into the canals is prohibited by local ordinance.
3. Services delivered support the overall integrity of the canal infrastructure:
a. Dredging to maintain open, flowing channels.
b. Debris removal using skimmers, for example, to remove trash.
c. Vegetation control and removal.
d. Investigation of complaints.
e. Bridge repair.
f. Tree trimming when excessive overhang occurs.
g. Public education and outreach.
h. Coordination of volunteers for cleaning/debris removal.
4. Level of expenditure is consistent for established services with additional support from grants or
bonds for major rehabilitation.
5. Funding sources are primarily fees for service, charged across the jurisdiction for the basic level
of service with additional support in partnerships, state grants, loans, and general fund.
ATTACHMENT FOR BOCC CANAL RESTORATION WORKSHOP
Example Letter Sent to Homeowners for the Initial Six Canal Restoration
Demonstration Projects
USED FOR HOMEOWNER APPROVAL DURING INITIAL 6 DEMONSTRATION PROJECTS
Insert Date
Insert Homeowner Name and Address
Subject: DETERMINING HOMEOWNER INTEREST IN PARTICIPATING IN
CANAL RESTORATION DEMONSTRATION PROJECT
PARCEL ID , Location
Dear
Monroe County is considering the potential implementation of various water quality improvement
technologies within residential canals throughout the Keys. The Board of County Commissioners
has approved a few demonstration projects and has secured funding for the installation of the
projects. The installation should improve the water in your canal and there will be no charge for
the equipment or installation. On some canals property owners may be asked to pay for the
maintenance of the equipment installed in the canal.
Your canal has been identified as a potential candidate for implementation of a restoration
technology and we are soliciting information from you to assist in the final selection process.
Your participation in the selection process is vital and necessary to determine whether your canal
will be selected. Please take a few moments to answer the following questions related to your
canal:
Your canal has been identified as being a suitable candidate for installation of a
(insert technology). Please refer to the attached preliminary design
information for an overview of the technologies. Are you interested in Monroe County
implementing these water quality improvements in your canal and being a part of the
demonstration project?
Yes:
No:
Comments:
AMEC Environment & Infrastructure, Inc.
5845 N.W. 158th Street
Miami Lakes, Florida 33014
Tel (305) 826-5588
Fax (305) 826-1799 www.amec.com
DETERMINING HOMEOWNER INTEREST IN PARTICIPATING IN
CANAL RESTORATION DEMONSTRATION PROJECT
AMEC PROJECT NUMBER 6783-13-2561
December 11, 2013
In certain cases, demonstration projects will require
structures which will have to be maintained after
comments on whether you believe your community
proposed restoration components after installation?
Yes:
No:
Comments:
Authorized Signature:
Printed Name:
the installation of equipment or
installation. Please provide your
would be willing to maintain the
Date:
Please complete and sign this form and return to Wendy Blondin, Monroe County's consultant
coordinating the homeowner approvals for the canal demonstration projects at the below
address within 2 weeks of receipt of this letter. Failure to respond may result in your canal
being removed from consideration.
For further information please contact Wendy Blondin at 305-298-9431 between the hours of
9 AM and 5 PM.
Sincerely,
AMEC ENVIRONMENT & INFRASTRUCTURE, INC.
Representing Monroe County
Wendy Blondin, P.G.
Principal Geologist
5845 N.W. 158th Street
Miami Lakes, FL 33014
Enclosure: Conceptual Design Information