Item B
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Executive Office
FLORIDA KEYS AQUEDUCT AUTHORITY
1100 Kennedy Drive
Post Office Box 1239
Key West, Florida 33041-1239
Telephone Number (305) 296-2454
Facsimile Number (305 296-3521
TELECOPYTRANSNDTTAL
TO:
Firm:
Attention:
Jim Roberts
Reference:
Proposed Rule 28-18.100 & 18-18.200
Date:
November 16, 2001
Te/ecopy Number Transmitted To:
292-4544
FROM:
Roger Braun
Number of pages telecopied NOT including this cover sheet
6
COMMENTS:
NOV-16-01 14,19 FROM,FLA KEVS AQUEDUCT AUTH
10,3052963521
Florida Keys
Aqueduct Authority
November 16, 2001
Mr. Mike McDaniel
Growth Administrator
Florida Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
PAGE
2/7
John M Ktlltnig, Sr.
Chairman
Key West
Albert O. Appell
Vice-Chairman
Duck Key
Mary l: Rice
Secretary-Treasurer
Marat/'lon
Linda B. Wheeler
Key West
Harry E. Cronin
Key Largo
Roger Braun
Executive Director
SUBJECT: Current Draft of Proposed Rule 28-18.100 and 28-18.200, F.A.C. and changes
to 28-20.100 F .A.C.
Dear Mr. McDaniel:
As .you are aware, the Florida Keys Aqueduct Authority is featured as a review
agency and implementing partner agency in many of the work plan objectives in both of
these rules. For purposes of clarification, information and consultation on the proposed rule
has not been requested of the FKAA as to the devetopment of the proposed language.
FKAA received an incomplete draft of Rule Changes tor 28-20.100, which did not reflect or
reference the proposed rule 28-19.200, at the October 25,2001, Monroe County
Comprehensive Plan Task Force meeting. FKAA sought and retrieved an electronic
version of the actual proposed changes on November 71h as was published in the Florida
Administrative Weekly, November 2.2001.
Staff reviewed the published rule and consulted with the FKAA Board of Directors at their
scheduled November 14, 2001 meeting. Per applicable FKAA references to both the City of
Marathon and Monroe County proposed rule/changes, we hereby officially provide the
following comments, requests and recommendations:
CITY OF MARATHON
28-18.200, F.A.C. YEAR FIVE (July 13, 2001 through July 12,2002)
B. Complete final draft of the carrying capacity study including acceptance by review
agencies.
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Comment: FKAA is listed second in order for achieving this objective. Reference
"Complete final draft" it is assumed that this is the direct responsibility of DCAlCorps of
Engineers.
Request: We request that the State describe what "acceptance" means as regards.
FKAA. Request estimated review timeframe.
Recommendation; N/A
D. Continue eliminating cesspits and inoperative septic tanks in areas outside of Hot Spots.
Comment: FKAA is listed second in order for achieving this objective. This language is
inconsistent with the August 22, 2000, City of Marathon Resolution #00-08-38.
Request: N/A
Recommendation: Amend this work plan element to be consistent with the designation of
the City of Marathon as a "hot spot."
YEAR SIX (July 13,2002 through July 12,2003)
B. Implement the carrying capacity study by, among other things, the adoption of all
necessary plan amendments to establish a rate of growth and a set of development
standards that ensure that any and all new development does not exceed the capacity of
the county's environment and marine system to accommodate additional impacts.
Comment: FKAA is listed second in order for achieving this objective.
Request: We request that the state describe what "adoption" means as regards FKAA
Recommendation: N/A
C. Initiate construction of Phase /I of the Marathon Facility and complete construction and
begin operating the Little Venice Facility.
Comment: FKAA is listed second in order for achieving this objective. By rule the city has
primary responsibility for implementation; however, FKAA has legal jurisdiction as sewer
provider in Marathon and is proceeding with the RFP process and commitment of financing.
Public expectation of grant subsidy has been elevated by Federal authorization of one
hundred million dollars for Keys wastewater improvements and commitment of matching
funds by the Governor. In the absence of timely finn commitment of state/federal grant
funds, physical plant site limitations and potential mitigation of wetlands with DEP/Corps of
Engineers. potential legal challenges, cost reasonableness, of which any or all may be
beyond the control of FKAA in the anticipated initiation of Phase II. Therefore, FKAA is
reluctant to have shared responsibility for the initiation of construction of Phase " of the
Marathon Facility, as pertains specifically to this work plan element (for which the city can
be penalized new construction permits if not achieved, as presently written in this objective.)
Request: Revisit the proposed as to the relationships among DCA, City of Marathon,
and FKAA.
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Recommendation: N/A.
D. Complete the e/~mination of all cesspits in areas outside of Hot Spots.
Comment: FKAA is listed second in order for achieving this objective. Again, this is an
inapplicable requirement (per previous comment) about Hot Spots in Marathon.
Request: N/A.
Recommendation: N/A.
YEAR SEVEN (July 13,2003 through July 12,2004
B. Continue construction of the Marathon FaciHty.
Comment: FKAA is listed second in order for achieving this objective. The same
comment as for the initiation of construction of the Marathon Facility is applicable.
Request: N/A.
Recommendation: N/A
MONROE COUNTY
28-20.100, F.A.C. YEAR THREE (January 1, 1999 through July 12, 2000)
A. .. .begin developing facility plans for priority Hot Spots. Execute interagency agreements
to define facility plan, design and construction schedules for each Hot Spot facility.
Comment: FKAA is listed second in order for achieving this objective. While noted that
YEAR THREE is past, the language of this work plan element has relationship to work plan
elements in succeeding years. "Facility plans. have not been developed for priority Hot
Spots. Interagency agreements that define facility plan, des;gn and construction schedules
for each Hot Spot facility have not been developed.
Request: N/A.
Recommendation: N/A.
YEAR FOUR (July 13, 2000 through July 12, 2001)
A. Continue implementation of the Wastewater Master Plan, execute interagency
agreements to define construction schedule by phases, and continue developing facility .
plans for selected pFieFity Hot Spots in each ROGO area. Secure funding to implement the
Wastewater Master Plan. Document that reduction in nutrients has been achieved within
each of the sub-areas.
Comment: FKAA is listed second in order for achieving this objective. While noted that .
YEAR FOUR is past, it is not dear that interagency agreements have been executed to
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define construction schedules by phases for selected ~Fi9Fity Hot Spots in each ROGO area.
FKAA is not aware which Hot Spots have been "selected".
Request
Detennine/describe the governmental process for "selected hot spots." _. .
~ .
Recommendation: N/A
F. .. .ensure that a minimum of 88 cesspits are replaced.
Comment: FKAA is listed second in order for achieving this objective. While noted that
YEAR FOUR is past. FKAA was not an official agency in the stated cesspit replacement
program. The implementation program was an inter-local government agreement among
DEP, DCA, DOH and Monroe County.
Request:
Consider for clarification accuracy FKAA reference to be deleted.
Recommendation: N/A
YEAR FIVE (July 13, 2001 through July 12, 2002)
A. Begin construction of wastewater facl7ities in selected priority Hot Spots.
Comment; FKAA is listed second in order for achieving this objective. First. FKAA is not
aware of which Hot Spots have been officially "selected." Without the acknowledgment of
the officially selected Hot Spots, "construction" of wastewater facilities in such Hot Spots
cannot begin; only planning, site acquisition. permitting and .competitive" bid processes
could be initiated by the end of YEAR FIVE. Accordingly, as presently written, FKAA cannot
be responsible for meeting the stated compliance deadline.
Request:
Determine/describe the governmental process for .selected hot spots."
Recommendation: Revise language to reflect "selected hot spots" process and replace
"construction" with planning. site acquisition. and permitting review process.
Do Complete final draft of the carrying capacity study including acceptance by review
agencies.
Comment: FKAA is listed second in order for achieving this objective. Reference
"Complete final draft" it is assumed that this is the direct responsibility of DCA/Corps of
Engineers.
Request: We request that the State describe what "acceptance" means as regards
FKAA. Request estimated review timeframe.
Recommendation; N/A
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YEAR SIX (July 13,2002 through July 12, 2003)
A. Continue construction of wastewater facilities in Hot Spots begun in previous year.
Contract to design and constl1Jct addl1ional wastewater treatment fact1ities in Hot Spots in
accordance with the schedule of the Wastewater Master Plan. Continue implementation of
Wastewater Master Plan with emphasis on Hot Spots.
Comment: FKAA Is listed second in order for achieving this objective. As previously
stated under YEAR FIVE (A), FKAA awaits the intergovernmental process defining "selected
hot spots". Upon the establishment of "selection", FKAA envisions beginning construction
of said facilities in YEAR SIX, so therefore, as presently written, commitment to constructing
additional facilities under YEAR SIX may not practically feasible. Recent actions and
proposed actions by Monroe County (BOCC) reference wastewater issues have been not in
legal, jurisdictional and administrative accordance with Chapter 76-441 as amended,
executed Memoranda of Understanding with FKAA, and FKAA's role as designated in Rule
28-20.100, Florida Administrative Code and proposed amendments to Rule 28-20.
Requests: See concluding remarks.
Recommendations: Pending BOCC official response to FKAA Resolution #02-02, adopted
November 14,2001.
B. Implement the carrying capacfty study by, among other things, the adoption of all
necessary plan amendments to establish a rate of growth and a set of development
standards that ensure that any and all new development does not exceed the capacity of
the county's environment and marine system to accommodate additional impacts.
Comment: FKAA is listed second in order for achieving this objective.
Request: We request that the state describe what "adoption" means as regards FKAA.
Recommendation: N/A
YEAR SEVEN (July 13. 2003 through July 12, 2004)
A. Finalize construction and begin operating wastewater facilities in Hot Spots.
Comment: FKM Is listed second in order for achieving this Objective. As presently
written, FKAA cannot commit to finalizing construction and operating wastewater facilities in
Hot Spots as it is not clear they will be built as provided for in previous YEAR objectives and
the FKAA's above listed Comments, Requests and Recommendations.
Requests: Pending
Recommendations: Pending
Concluding Statements:
Until there ;s clarification to the BOCe's recent and pending actions concerning wastewater
issues in Monroe County per F.S. Chapter 76-441 as amended; official BOee requests for
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change to existing Memoranda of Understanding and official response to FKAA's Resolution
02'()2, then FKAA is unwilling to assume responsibility that could have negative
consequences for Monroe County new building construction as a penalty for non-
achievement of the County's work plan goals. The FKAA remains committed and active. in
its authority and. responsibility for wastewater initiatives both in the City of Marathon and
unincorporated Monroe County.
We look to both verbal and written dialogue per this correspondence and submittal of
documentation at the scheduled Public Hearing. It is our understanding that the Public
Hearing has been officially requested. If not, FKAA requests that a hearing be held as
provided for in the advertisement of these rules in the Florida Administrative Weekly,
Volume 27, Number 44, November 2,2001. Please contact Jack Teague, Wastewater
Programs Administrator, Environmental Service Department (305)-296-5856 or myself at
(305) 296-2454 if we may answer any questions.
Respectfully submitted,
Rog r Braun
Executive Director
cc: Board of Directors, FKAA
Robert Feldman, Legal Counsel, FKAA
Jim Roberts, County Administrator, Monroe County
Tim McGarry, Director. Growth Management, Monroe County
Nora Williams, Growth ManagementlWastewater County Liaison Commissioner
Teresa Tinker, Office of Policy and Budget, Office of the Governor
11/16/01 14:01 FAX 3052892854
GROWTH MC)lT
14i0l
,
County of Monroe
Growth Mana2ement Division
2798 Oversea<: Highway
Suite 400
Marathon, Florida 330~O
Voice; (305) 289-2517
FAX: (305) 289-2854
Board of County Commissioners
Mayor George Neugent. Dist. 2
Mayor Pro Tem Nora Wil/iams. Disl. 4
Camm. Charles "Sonny"McCoy, Dlst 3
Comm. Murray E. Nelson. Disl. 5
Comm. Dixie Spehar. Disl. I
FAX COVER SHEET
TO:
Management Division
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FAX #:
FROM:
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REMARKS:
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Questions:
Nutrient Credits and Building Permits (8):
MC Have we reached a crisis in permitting because of our lack of nutrient credits?
DOH Could you explain why wastewater improvements under the interim standards
legislation do not qualify for nutrient reduction credits?
DOH How many credits are allowed for a household hooking up to a central sewer
meeting Advanced Wastewater Standards?
MC The proposed change to the Monroe CO\U1ty Plan will allow us to produce nutrient
reduction credits from coming facilities as soon as we have a construction contract and a
DEP permit in place. Given that there is the possibility that that aspect of the rule change
may be appealed by the intervenors to the Monroe County Comp Plan, could you explain
for US what the implications are for the troubles we face on permitting if this change is
put in place and if it is not?
DCA As Tim McGarry has pointed out, we're about to reach a crisis situation in terms of
nutrient reductions credits. To limit those negative impacts on the building industry, the
changes to the Monroe County Rule that allow the release of nutrient credits for coming
wastewater treatment facillitier prior to their completion is crucial. Now some will protest
that until they're completed, the shouldn't be released. Could you explain why DCA is
comfortable with this aspect of the rule change?
DEP (after Bobbi) DOH has interim standards for areas expecting centralized sewage, as
defined by the State Legislature. DEP, which deals with package plants rather than onsite
system,s does not. But nonetheless, you have an approach to try to avoid making people
pay twice for upgrades. In Cold Spot areas, package plants that are not planning to
expand will be required to fully upgrade by 2010. If they have plans to expand, they must
come up to the high standards now required immediately_ What a lot of people don't
realize is that hot spots without a fully enforceable contract in place are subject to the
same rules as Cold Spots - even though it is expected that they will eventually be hooked
up to a centralized system. To put it plainly, Hot Spot package plants do not qualify for
interim systems unless there is a fully enforceable contract for the centralized system in
place. Could you explain what having a fully enforceable contract in place for a
centralized system wiIJ do for package plants in that area?
Tim McGarry: The frrst project to come on line in the Lower Keys is KWRU hook-up of
the rest of South Stock Island. How many months will it be before we are at the point of
being able to release nutrient reduction credits from those hook-ups and how many
should be produced?
FKAA: What is our timetable in the Middle Keys for production of nutrient credits from
the hook-up of Conch Key to what is currently the Hawk's Cay facility?
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Other Questions involving the "interim" between now and system installation (1)
DEP A few package plants in the Keys are discharging through shallow well injections
that do not meet the requirements of their permits, requirements established even before
the new law. What is the process by which we would avoid the double payment in these
situations for areas under a fully enforceable contract?
Funding for wastewater treatment - oDsite and other
Onsile system {undinl! (4):
EPA (before the FKAA questions) EPA has generously selected the Keys to be the
recipient of some $3.8 million in grant funding for on site system replacement. Where are
those dolJars, what are they for and how certain are we to receive them?
FKAA Why haven't you submitted the final papeTWork to receive the $3.8 million
dollars. What can we do to help make sure those dollars come to the Keys and get used to
help homeowners?
FKAA What is the match requirement for the $3.8 million onsite replacement grant funds
from EPA? How do you envision that match will be made?
FKAA (1 will ask Tim McGarry the "crisis question on NRCs prior) Do you believe that
that grant program will help us with our coming crisis in nutrient reduction credits in the
Lower and Upper Keys?
FEMA Unmet Needs Fundin~ (4)
FEMA At the time the agreement was reached about the dispersal of Fema Unmet Needs
Funds to the tune of just over $10 million dollars for unincorporated Monroe's water
quality improvement endeavors, it was noted that th,=re was a "performance period" in
which we were required to have the money contractually obligated. Is that period over
and, if it is, exactly when did it end?
FEMA Yet the money isn't actually gone yet. Precisely what was done to keep that
money from disappearing and at what point will it disappear if we do not have
contractual obligation?
FEMA A project in each ROGO area of the Keys is currently counting on FEMA
funding. As time passes, if we get nervous that funds may be lost from failure to make
adequate progress - and you've already seen this - there may be talk of shifting funding
from one area to another, there may be talk of changing the authority for a project from
one entity to another - as there has been in Key Largo with the Legislative request - and
there may be talk of shifting funding from one type of project to another within an
approved area - i.e. a hot spot rather than a centralized system. What would be the
impacts on the FEMA funding if any of those actions were taken?
~
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FEMA If the decision was made, because possibility of further coming federal funds
under the Water Quality Improvements Act, to move forward with a design proposal or
an RFP for design only, what impact would that have on our FEMA funding?
The Federal Authorization (10)
ACOE The Conference Report shows that $500,000 will be appropriated as part of the
FKWQI A. Was that funding appropriated as a grant, and, if not, what is the implication
of that for future appropriations?
ACOE It is my understanding that these funds will be used for a Project Management
Plan. We have heard some people afraid that this is yet another "study" of a long-
standing problem rather than moving forward toward solutions. Describe for us what that
project management plan will do, how we can address these concerns and how the
consensus local govermnents have reached will fit in with the plan?
ACOE There seem to be three options then in pursuing future appropriations. (1) a
straightforward grant program in which the Corps simply passes the money over to the
entities responsible for water quality projects in the Keys; (2) the Corps works as a
partner with the local responsible entity by providing construction management for the
various approved projects; and (3) the Corps performs design, construction and
construction management of the funded water quality improvements in the Keys. Can
you tell us the pros and cons of each of these approaches from the Corps perspective?
ACOE Given that you move forward this fiscal year with the Project Management Plan,
you will need to make a budgetary request for the next fiscal year. Describe for us the
process by which you will determine what that budgetary request will be and are we
likely to start seeing funding for actual construction?
DCA: The Governor pledged to match these funds with a 17.5 million dollar grant from
the State, and we were told that those funds could be forthcoming, not all at once, but in
increments even prior to the release of the federal funds. What can we expect and will
there by a $5 million allocation in this year's state budget?
DCA You worked with DEP and DOH on the Readiness to Proceed standards that have
been approved by local government and involved state agencies for the $100 million
dollar federal grant authorization. Those standards will define whom, among the various
municipalities hoping for those funds, is qualified to receive them. Would you explain
exactly what must be accomplished before projects are considered eligible for receipt of
funds.
ACOE In looking over projects funded this year in the same conference report in which
we were funded, I noted that Broward County received funds marked as "reimbursable."
If the municipal governments move forward with projects prior to the appropriation of
future federal funds, what is the likelihood we can include reimbursement language that
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would allow for us to be paid back for those expenditures and what do you feel is the
likelihood that future funds WILL be forthcoming?
EP A You're the federal agency that has provided most of the grant funding for
wastewater treatment projects for the federal government, yet you're not the agency
designated to deal with the Florida Water Quality Improvement Act. Given your
experience with this, as a semi-disinterested party, what is your assessment of what we
need to be doing to make sure that the federal government feels comfortable committing
serious funds to our projects?
SFWMD: Your agency is already working hand in hand with ACOE on projects expected
to cost 8 million dollars in Everglades Restudy Package. In your experience with ACOE,
what do you feel are the most important things we can do locally to keep the federal
government and our state partners feeling good about funding our efforts?
DEP How does SRF funding play into the whole picture and what does it mean that we
have "lost" that funding in Key Largo?
Our relationship with the FKAA (3)
FKAA The BOCC agreed to a memorandum of understanding with the FKAA May 14,
1998 that read: The bOOcc will not approve another provider of wastewater services
regulated under 367 FS or a governmental agency, as part of its normal process of
completing development review and approval or as part of a request for a special taxing
district or similar taxing structure for wastewater, without prior approval ofthe board of
the FKAA." Do you consider our request for legislation to remove your authority in Key
Largo in violation of the agreement that we passed in 1998 and does it have implications
for wastewater treatment elsewhere in the Keys?
FKAA Your Board's resolution passed tl>is past Wednesday indicated that the Board does
not desire our taking ANY action on Key Largo, except to ask for the repeal of the
legislation. Is that a correct assessment? And, given that response, is the FKAA willing to
give up any of its authority on wastewater in unincorporated Monroe to the BOCC?
DEP (after FKAA. Anderson) What are your concerns about our legislative request?
Work Plan Issues (6)
DCA Our work plan only <-alls, specifically, for wastewater treatment in a single hot spot
in each of the three ROGO areas during the seven years of tasks detailed. Would you
consider us in compliance if that was aU we accomplished?
DEP Given that our citizens will be facing extraordinarily high system replacement costs
in or after 2010 if the standards remain the same with little grant help available for
individual efforts. it is pretty obvious why we've tried to find more cost-effective ways to
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deal with this issue. But there has been an ongoing argument about big systems VS. small
ones. What are pros and cons of big vs. small systems?
DCA Could you detail for us exactly what is required in the 2010 legislation?
MC Ifwe were to do the mimimwn specified in the Comp Plan Work Plan, i.e. just treat
three hot spots: Bay Poinr, Conch Key, and Lake Surprise/Sexton Cove in Key Largo,
how many people would be left with systems needing replacement?
MC Ifwe move forward with a centralized system that is largely island-wide in Key
Largo, and if we move forward with a Lower Lower Keys Regional System from Stock
Island to Bay Point and if we expand Hawk's Cay's facility to include Duck Key along
with Conch Key, how many residences will be remaining that will need to replace their
systems, not counting the many package plants that will need costly upgrades?
EP A (BK) From all the work you have done in your years on this issue in the Florida
Keys, why is upgrading our wastewater treatment important and how will those upgrades
help us in terms of both nearshore water quality, and the public health issues recently
documented in residential canals.
END