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Item J1■I! k i # v VEIN 3113 IT.'s N I NO *ag;ji3 10 " m Meeting Date: Februn 20, 2013 Division: Growth Mpagernent Bulk Item: Yes No X Staff Contact Person/Phone #: Christine Hurlgy,289-2517 AGENDA ITEM WORDING: Discussion regarding the Key Largo Wastewater Treatment District CR- 905 improvement project relative to the Coastal Barrier Resources System (CBRS) Unit #FL-35 and the expenditure of federal funds. 0111#42amm w1amw M7NU The subject improvements include the installation of a force main within the CR-905 right of way (ROW) with branch lines in the ROW of the local subdivision streets being served. The individual homes to be served are to grant an easement to the KLWTD so that the KLWTD can then install a low pressure lift station and a small force main on the private lot within that easement. This lift station will be connected to the KLWTD's force mains. The individual lift stations and connecting force mains will be owned and maintained by the KLWTD even though they will be installed on private property (within the respective easements). The individual home owners will be responsible for connection of their sanitary sewage line to the YJ-V+ITD's low pressure lift station; the decommission of any existing onsite wastewater system (septic, aerobic, etc.); and running electric to the lift station. Home owners will need permits for the plumbing and electrical connections (2 separate permits). The County has adopted Comprehensive Plan Policies and Land Development Regulations which both discourage and prohibit the extension of utilities, including wastewater, to or through areas designated as units of the CBRS. (See Attachment A) opinion - Attachment Q however, as a result of the tibove r�ferenced adopted Comprehensive Plan Policies and Land Development Regulations, the County cannot issue building permits (plumbing and electrical) t* individual property owners in order to connect to the individual lift stations along CR-905, if the residences to be served are located within land designated as a unit of the CBRS. PREVIOUS RELEVANT BOCC ACTION: On December 12, 2012, the BOCC discussed the Key Largo Wastewater Treatment District (KLWTD) wastewater project, related to the expansion of service along CR-905 and into a portion of CBRS Unit #FL-35. At the BOCC meeting, the BOCC requested that KLWTD provide an analysis of their use of federal funds in the wastewater plant and if this prohibits them from extending the wastewater system to a USES unit. The KLWTD has submitted its legal interpretation, included as Attachment 1. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: NIA TOTAL COST: INDIRECT COST- —BUDGETED: Yes —No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes — No AMOUNT PER MONTG­ Year APPROVED BY: County Airy OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Attachment I Key Largo Wastewater Treatment Distr'ct 98880 Overseas Highway — PO Box 491 Key Largo, FL 33037 305-451-40:19 . ..... ... . Email message sent on: January 17, 2013 From: Ray Giglio Mome UmMmURVIN P101 No. The Coastal Barrier Resources Act prohibits the Federal Government (and only the Federi Government) from making expenditures in CBRS areas. M74MVIA I VINN �IAVXLj 11�� U, funds or doing any non -federally funded construction in a CBRS area --even if that entity has previously received federal funds. OW Key Largo. The current phase of that project consists of the installation of a force main wi the C-905 right-of-way. No part of this C-905 project has utilized or will utilize any federall funds, either directly or indirectly. 0 f Corps of Engineers (ACE). In each case, this money was earmaried by the federal en7tity fo lt� specific projects related to the planning, design and construction of the KLWTD's regional wastewater treatment and collection facility. which amended a January 11, 2 008 Agreement between the parties, and which provided, inter alia, that: vacuum sewer collection system in Basin D — Phase 3 that will serve over 200 EDU's (Equivalent Dwelling Units). The project includes approximately 70 vacuum pits, one buffer tank, and 9599 linear feet of vacuum sewer collection mains and will encompass collection facilities in the following streets: La Paloma Road (South of Alhambra), Gibralter Road, Valencia Road, Alhambra Drive (East of Marid), Mahogany Drive (East of Oleander), First Lane (between La Paloma and Valencia), and Fourth Lane (between La Paloma and Valencia)." "6. A force main the length of US Highway I from MM 91 to MM 101 to transport wastewater collected in Basins F, G, H, 1, J, and K to the treatment plant." At the present time, all of the projects funded by federal entities have been completed. All federal funding has been duly applied to those projects. 10MIMMIN2110101" The Coastal Barrier Resources Act, 16 U. S - C 3 501 et seq., which was enacted in 1982, designated various undeveloped coastal barrier islands for inclusion in the Coastal Barrier Resources System. With certain listed exceptions, designated areas were made ineligible for including flood insurance. the CBRA, which imposes "LIMITATIONS ON FEDERAL EXPENDITURES AFFECTING THE SYSTEM." The language (not to mention the title) of § 3504 clearly indicates that this is a restriction on "Federal Expenditures"—i.e. on expenditures by the Federal Government, Neither this section, nor any other section of Federal Law, restricts the Key Largo Wastewater Treatment District, Monroe County —or any non-federal entity —from expending funds on projects in the Coastal W,arrier Resources System. Indeed, subsection (a) of § 3504 clearly indicates that, with certain exceptions, expenditures or new financial assistance •maybe made available under authority of any Federal law for any purpose within the Coastal Barrier Resources System ... ." [emphasis added]. Therefore, this section clearly limits or restricts only the Federal Government with respect to expenditures in the CBRS. It is worth noting that the statute does not, for example, say that no �axj.e,m4turec within tke C#f mff I --ftwier Resourrey $yelem inry be nis4-- iy-any entit., y w4delehas received money or assistancefrom the Federal Government. administering CBRA) explains on its website that: -VV7A= not prevent aeveiopment, an it imposes no restrictions on development conducted with non -Federal funds, Congress enacted CBRA to minimize the loss of human life, wasteful Federal expenditures, and the damage to natural resources associated with coastal barriers." (http://www.fws.gov/CBRA/Do&CBRAPropertyDetertninafionsProcessFS.pdf) I He Uo� LUX �� I X�I -1 M no y iner entity Truen F7 received federal money or assistance from making expenditures in CBRS areas, The plain language of the CBRA suggests that it prohibits the Federal Government (and only the Federal Government) from making expenditures in CBRS areas Therefore, an entity such as the KLWTD is NOT prohibited from doing non -federally funded Key Largo Wastewater Treatment District 98880 Overseas Hwy - PO Box 491 Key Largo, FL 33037 (305) 340-9198 My.gyi Ylio6t4khytd.c�om Aachen t A 1111111 111111111 V "Mint RON I IfIti-40 I GW-f" I UWAIDDE-1 Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. Policy 102.8.1 Monroe County shall discourage developments which are proposed in its of Coastal Barrier Resources System (CBRS). Policy 102.8.2 Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new bridges, new causeways, new paved roads or new commercial marinas to or on units of the Coastal Barrier Resources System (CBRS). Policy 102.8.3 By January 4, 1997, shoreline hardening structures, including seawalls, bulkheads, groins, rip -rap, etc., shall not be permitted along shorelines of CBRS units, Policy 102.8.4 By January 4, 1998, privately -owned undeveloped land located within the CBRS is shall be considered for acquisition by Monroe County for conservation purposes through the Monroe County Natural Heritage and Park Program. Policy 102.8.5 Monroe County shall [take] efforts to discourage the extension of facilities and services provided by the Florida Keys Aqueduct Authority and private providers of electricity and telephone service to CBRS units. These efforts shall include providing each of the utility providers with: 1. a map of the areas of Monroe County which are included in CBRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources System published by the U.S. Department of the Interior, Coastal Barriers Study Group, which specifies restrictions to federally subsidized development in CBRS units; 3. Monroe County policies regarding local efforts to discourage both private and public investment in CBRS units Policy 103.2.4 Upon adoption of the Comprehensive Plan, Monroe County shall require that the following analyses b% undertaken prior to finalizin plans for the 6ting. Q�L!:Li4L-z"i-p �jlig fqvcAifi!�s *r -Q (greater than 25 percent) of existing public facilities: 1. assessment of needs 2. evaluation of alternative sites and design alternatives for the selected sites; and 3. assessment of impacts on surrounding land uses and natural resources. The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or welfare. Policy 103.2.10 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related policies.) GOAL 209 Monroe County shall discourage private land uses on its mainland, offshore islands and undeveloped coastal barriers, and shall protect existing conservation lands from adverse impacts associated with private land uses on adjoining lands. Objective 209.3 Monroe County shall take immediate actions to discourage private development in areas designated as units of the Coastal Barrier Resources System (CBRS), Policy 215.2.3 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands not currently 11111� ��I I I V I I$ I rf I DORM$ I L=U14jt-7V% I tVJ I ML-1111 K2all-714 Sol Policy 217.4.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of th* Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not currently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. Policy 502.1.5 Monroe County shall support a proposal to amend the Coastal Barrier Resources System Map adopted by the Coastal Barrier Improvement Act of 1990, to delete the improved port property along the Safe Harbor entrance channel from the system unit, FL 57. Policy 1301.7.12 By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resource Systems (CBRS) units. Policy 1401.2.2 No public expenditures shall be made for new or expanded facilities in areas designated as units of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or offshore islands not curTently accessible by road, with the exception of expenditures for conservation and parklands consistent with natural resource protection, and expenditures necessary for public health and safety. 105 r, ri T 7-TKS in ". I'L WX,* M #7 j Z, I W. "M I I =. ff = 511•�' Sec. 101-1. —Definitions Coastal Barrier Resources System (CBRS) means those 15 (CBRS) units in the county designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprising undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore waters. See. 130-122. - Coastal barrier resources system overlay district. (a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement the policies of the comprehensive plan by prohibiting the extension and expansion of specific types of public utilities to or through lands designated as a unit of the coastal barrier resources system. (b) Application. The coastal barrier resources system overlay district shall be overlaid on all areas, except for Stock Island, within federally designated boundaries of a coastal barrier resources system unit on current flood insurance rate maps approved by the Federal Emergency Management Agency, which are hereby adopted by reference and declared part of this chapter. Within this overlay district, the transmission and/or collection lines of the following types of public utilities shall be prohibited from extension or expansion: central wastewater treatment collection systems; potable water; electricity, and telephone and cable. This prohibition shall not preclude the maintenance and upgrading of existing public utilities in place on the effective date of the ordinance from which this section is derived and shall not apply to wastewater nutrient reduction cluster systems, (Code 1979, § 9.5-258-, Ord. No. 43-2001, § 1) An act relating to the Key Largo Wastewater Treatment District, Monroe County; amending chapter 2002-337, Laws of Florida; pro- viding that the district is not subject to local regulations governing discharge of e uent is not o ligated to obtain licenses, permits, or authorizations required by local regulating agencies; requiring the district to provide the county with a notice of development; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (6) is added to section 3 of section 1 of chapter 2002- 337, Laws of Florida, to read: Section 3. District; creation, jurisdiction, and purpose.— Section 2. This act shall take effect upon becoming a law. Aftachment C C( oi .UNTY oIIONROE KEY WEST FLORIDAS33040 (305)294A644 Robert R. ShOnger, County Attorney" Pedro J. Mercado, Assistant County Attorney ** Susan M. Grims1ey, Assistant County Attorney** Natileene W. Cassel, Assistant County Attorney** Cynthia L. Hall, Assistant County Attorney ** Ckistine Lim�ert-V,2naws, Assismat "., lzvy Attomey Derek V, Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney Steven T, Williams, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law 1 11 Danny L. Kolhage, District I David Rice, District 4 Sylvia J. Murphy, District 5 Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 Is the Key Largo Wastewater Treatment District (KLWTD) exempt from permitting regulations under the law and do certain individual property owners share that exemption? Yes, KLWTD is exempt from permitting regulations. However individual property owners are not exempt from permitting regulations. Under Chapter 2008-291, Laws of Florida, the legislature created an exemption from permitting obligations for KLWTD. While it is clear that KLWTD is exempt from oermitting obli atiots, 'CL\IITD ""sMl con wit�l tke SuJ'Fs-tz-f't!1V-P-W-a-t 111� IRMO 00 on 0 allil ............... CONCLUSION, Based upon the above background the KLWTD is exempt from permitting regulations. Based upon the above background and the requirements in the Florida Building Code and MCC Chapter 6 wherein plumbing and electric or requires permits, the individual property owners are required to apply for permits within 30 days of written notification that the system is available for connection and are not exempt from permitting regulations. DRAFT Letter County of Monroe r I C ----- DIRartmegt 2798 OvIIII erseas Highway, Suite 410 Marathon, FL 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 We strive to be caring, profm November 27, 2012 �- WIIMO� ffimi Post Office Box 491 Key Largo, FL 33037 [is . M114 0 L1.1101 I [too UWN-ILYZIN 0 41 1 Board of Counly Commissiopers Mayor George IIIIII NeuIII gent, Dist. 2 Mayor Pro Tern Heather Canuthers, Dist. 3 Danny Kolhage, Dist. I David Rice, Dist 4 Sylvia J. Murphy, Dist 5 WWWRFULPAJUX 1 11 CR-905 right of way (ROW) with branch lines in the ROW of the local subdivision streets being served. The individual home owners will grant an easement to the KLW71T) so that the KLWTD may install a low pressure lift station and a small force main on the individual private lots within the easement. This lift station will be connected to the KLWTD's force mains by KLWTD. The individual lift stations and its G*M.-wcti&g f%-Qe-!i ,S -Nil! bs-viirei azad MR-kazin-c-I k'y &T-NWJr-zVe.-r-th#g% i��rillk )rz kAulle4 on private property. understanding is the TF�n—Zfffv property owners WUFR—r—esponsible for connection of their house sanitary sewage line to the YLWTD's low pressure lift station as well as the decommission of any existing on -site wastewater system currently on their property (septic, aerobic, etc.). Finally, the homeowner will be responsible for the plumbing and electrical connection from the house to the lift station. MEN I W'11gligim or I I L4 a WIMIgg" I 116K*Eqlr. I Igairg t-IOMMMI I US I It [Alto 44 IN . I - I I 0111 Nall onroe County Attorney property to the CBRS; and (3) the CBRA 5- kt have occurred to System units by natural v/cbra/Act/index.htmI), 19 Maks IMMIM-MYNINT-M) Eties, within CBRS units. M the siting of any new or the significant expansion (greater than 25 percent) of any existing public facility: I - assessment of needs; 2. evaluation of alternative sites and design alternativesfor the alternative sites; and, 3. assessment ofdirect and secondary impacts on surrounding land uses and natural resources. which the proposedpublicfacility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state andlor federal governments, offshore islands, and designated Tier I areas. I Exceptfor passive recreationalfacilities on publicly -owned land no newpublic community or utility facility other than water distribution and sewer collection lines or pumplvacuumllifit stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless it can be accomplished without clearing of hammock or pinelands, Exceptions to this requirement may be made to protect the public health, safety, and welfare, if all thefollowing criteria are met. 1. No reasonable alternatives exist to theproposed location; and 2. The proposed location is approved by a supermajority of the Board of County Commissioners. The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an allo wed clearing of up to acres sha 11 n o t be s ubject to th is p o W Objective 102.8 Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System, Policy 102.8.1 Monroe County shall discourage developments which are proposed in units of Coastal Barrier Resources System (CBRS). bull not create new a6dess via Policy 102.8.... bulkheads, groins� rrip- land located within the CBRS units shall be 0. 11. WON M— —5111-m I VW-11 r conservation purposes through the Monroe NOW 61, CBRS um& Yhese efforts shall include providing each of the utility providers with: 1. a map qihe areas of Monroe County which are included in CVRS units; 2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources Syste, published by th� US, P4drtment of the Interior, Coastal Barriers Study Group, which speci I f restrictio ns to jeder6 W subsidized developmen t in CRRS uni ts; 3. Monroe County policies regarding local efforts to discourage both private and pulbl investment in CBRS units Policy 103.Z4 W P oil or endangered by the state andlorfederal governments, offshore islands, and Conservation Land Protection Areas. Monroe County shall require that public facilities be developed on the least environmentally sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no feasible alternative exists and such facilities are required to protect the public health, safety, or wel(are. Policy 103.ZIO -6011"Pf- A i" '�8 and related policies) GOAL 209 Monroe County shall discourage private land uses Inlanit oands and undeveloied coastal barriers and ha 7MIT'Yo-4 Objective 209.3 Policy 215.Z3 ii� xpeendituresjbr conservation andparklands consistent with =44iMl tection, and:"xpenditures necessary for public health and safety. I LW not currently accJ proposal to amend the Coastal Barrier Resources System Map Improvement Act of 1990, to delete the improved port property channelfrom the system unit, FL 57. Policy 130L 7.12 By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures which could be taken to discourage or prohibit extension offacilities and services to Coastal Barrier Resource Systems (CBRS) units. Policy 1401.2.2 11 parklands consistent with natural resource protection, and expenditures necessaryforpublic health and safety. See. 101-1. —Definitions Coastal Barrier Resources System (CBRS) means those 15 (CBRS) units in the county designated under jhjl7eleral Coastaiiiirriji jjvju e, 92J. I ki- jj giving inwic'ung welflun, shore waters. (b) Application. The coastal barrier resourc except for Stock Island, within federally des* a R'd boundaries of a ME from which this seitia is deii Townsley Schwab Senior Director of Planning & Environmental Resources ff ;ansion of specific types of ri . er resources system. M n shall not precludM I e the 4 1 1 011 Enclosures: 1) U.S. Fish and Wildlife Service CBRS map of North Key Largo Unit FL-35 2) Monroe County Attu rney's Office Legal Opinion of KLWTD permitting requirements 3) Chapter 2008-291, Laws of Florida I cBoard of County Commissioners (w/o enclosures) Bob Shillinger, County Attorney (w/o enclosures) RomanGastesi# County Administrator 10 enclosures) Christine Hurley, Growth ManagementDivision Director (w/o enclosures) Jerry , Building Official (w/o closures) 004STAL"iU fft KEG 1 tw L RADABOB KEY Nff FL4$P' 6'.. .. mra s•2s � Was, rP" ftsawtv® I t 49* M hn bw Octobw4, logo t CC OIUNTY olIONROE KEY WEST FLORID 33040 K105)294-4641 Robert R. ShiHinger, County Attorney" Pedro I Mercado, Assistant County Attorney ** Susan M. Grinisley, Assistant County Attorney** Natileene W. Cassel, Assistant County Attorney** Cynthia L. Hall, Assistant County Attorney ** Christine Limbert-barrov.vs, Assistant Cuxntf Att#rney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney Steven T. Williams, Assistant County Attorney ** Board Certified In City, County A Local Govt, Law 4M fl 11 1' 11110117111 RIF 1� 1111 I I I q iq�l 11 1-11� 1 111111 flffifl � � � I Attachment 2 Danny L. Kolhage, District I David Rice, District 4 3 Sylvia J. Murphy, District 5 I I 11 126 Street Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (3 05) 292-3 516 — Fax Is the Key Largo Wastewater Treatment District (KLWTD) exempt from permitting regulations under the law and do certain individual property owners share that exemption? Yes, KLWTD is exempt from permitting regulations. However individual property #wners are not exempt from permitting regulations. Under Chapter 2008-291, Laws of Florida, the legislature created an exemption from permitting obligations for KLWTD. While it is clear that KLVVTD is exempt from LLtt 7 '11 ALIA J jLq .01 1 with FEMA and FWS regulations. In the past, KLWTD did apply for and receive opinion letters from FWS. However, Chapter 2008-291, Laws of Florida, does not contain any language that exempts individual property owners from permitting regulations. As a result and pursuant to F.S. 381.00655(l)(a), the property owner must connect to the central sewer system within a definite number of days after the system is available. The definition of available as found in F.S. 381.0065 (2)(a), in pertinent part is "'as applied to a publicly owned Or investor -owned sewerage system, means that the publicly owned or investor - owned sewerage system is capable of being connected to the plumbing of an establishment or residence, is not under a Department of Environment Protection moratorium, and has adequate permitted capacity to accept the sewerage to be generated by the establishment or residence ...... Also Monroe County Code (MCC) § 20- 51 states that property owners must connect within 30 days after written notification that the system is available for connection. CONCLUSION: Based upon the above background the KLWTD is exempt from permitting regulations. Based upon the above background and the requirements in the Florida Building Code and MCC Chapter 6 wherein plumbing and electric work requires permits, the individual property owners are required to apply for permits within 30 days of written notification that the system is available for connection and are not exempt from ,#-..ermitting regulations. J- 11:01111,11IN I: it• 10115MISM We vim III III 1111,111111111111111111 111111111 1 11 Z B I g ► 3. District; creation, jurisdiction, and ♦t construction of wastewater infrastructure or related facilities. �Vfflllnf 19MMERIM