County settlement of nonprofits’ lawsuit over Clean Water Act violations focuses on conversion of Bee Ridge facility to Advanced Wastewater Treatment status and penalties for future preventable spills

Plaintiffs had asked court to assess the county almost $25 million for discharges over period of years

This graphic provides details about the planned improvements associated with the Bee Ridge Water Reclamation Facility. Image courtesy Sarasota County

With Commissioner Christian Ziegler voting “No,” the Sarasota County Commission on Sept. 10 approved the proposed settlement in a federal lawsuit alleging that the county had committed multiple violations of the U.S. Clean Water Act over a period of years.

The terms call for the county to commit to the conversion of the Bee Ridge Water Reclamation Facility (WRF) to an Advanced Wastewater Treatment system, a project for the commissioners have given their full support in recent months. That action would reduce the levels of pollution flowing into county waterways, the plaintiffs have pointed out.

The conversion must be completed by the end of 2025, under the terms of a Consent Order with the Florida Department of Environmental Protection (FDEP) that the commissioners unanimously approved on Aug. 27. A preliminary staff estimate for the cost of that project is approximately $158 million.

However, the plaintiffs — the Suncoast WaterkeeperOur Children’s Earth Foundation and the Ecological Rights Foundation — had asked the court to assess the county civil penalties of up to $37,500 per day for each Clean Water Act violation from Jan. 12, 2009 to Nov. 2, 2015 and then $54,833 per day per violation for all the illegal discharges after Nov. 2, 2015. The total would have been $25,439,000, based on the date the lawsuit was filed, a Sept. 4 memo from the Office of the County Attorney (OCA) explained.

The settlement also includes a table of penalties the county would have to pay the Sarasota Bay Estuary Program (SBEP) for future sanitary sewer overflows that the county foreseeably could prevent. The biggest amount is $10,000 per day for any sanitary sewer overflow from county facilities that exceeded 1 million gallons.

Each of the other penalties to the SBEP would be one-fifth the amount the county would have to pay FDEP for future illegal discharges, under terms of the Consent Order.

This is the table of penalties for future sanitary sewer overflows the county would have been expected to prevent. ‘SBEP’ stands for the Sarasota Bay Estuary Program. Image courtesy Sarasota County

The agreement points out that the county would not be liable for penalties if the county demonstrated that a sanitary sewer overflow was beyond its “reasonable control”; that the county had been “exercising prudent wastewater utility practices to reduce the frequency [of the overflows]”; and that the county “took timely and appropriate actions to reduce the environmental impact of the [sanitary sewer overflow].”

It does note that overflows resulting from “power outages during storm events, and preventable equipment breakdowns are presumed to be within the County’s reasonable control.”

In April, the three nonprofits filed the complaint “under the citizen enforcement provision of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act,” County Attorney Frederick “Rick” Elbrecht reminded the commissioners this week.

That lawsuit included exhibits showing that the total illegal discharges from the Bee Ridge facility’s 142.5-million-gallon storage pond added up to just under 1 billion gallons between September 2015 and March 26 of this year.

The complaint also documented spills from the Central County WRF and the Venice Gardens WRF.

The settlement also calls for semi-annual reports from the county to the nonprofits, providing updates on the county’s efforts to eliminate illegal discharges.

The latest problems at the Bee Ridge facility

Reclaimed water from the Bee Ridge facility flows into an emergency spillway, as shown in an Aug. 20 county video. Image courtesy Sarasota County

The memo that the Office of the County Attorney provided the commissioners about the proposed settlement was issued one day prior to the Sept. 5 cessation of the latest unauthorized spills from the Bee Ridge WRF property, which is located at 5550 Lorraine Road in Sarasota.

As County Attorney Elbrecht explained in the memo, “The reclaimed water discharged from [the 145.2-million-gallon storage pond] does not pose a human health risk, but rather has elevated levels of nutrients, particularly nitrogen. This reclaimed water overflowed the pond into a wetland in the Phillippi Creek watershed.”

In a final report on the latest incidents, filed with FDEP, county staff pointed out that the total amount of reclaimed water that flowed through an emergency spillway between Aug. 15 and Sept. 5 was 75.804 million gallons.

Continuing rains and flooding resulted in those discharges, county reports to FDEP explained.

In response last week to a Sarasota News Leader request for comment on the ongoing spills, Justin Bloom, an attorney specializing in environmental law who founded the Suncoast Waterkeeper, wrote in an email, “This is not benign water, or stormwater as some have suggested. The spill is a major source of pollution.”

The Sept. 4 memo from the Office of the County Attorney pointed out, “Please note that releases from the [Bee Ridge WRF storage] pond are expected to continue into the immediate future. During each rainy season over the past three years, the duration of each spill lasted more than eighty (80) days. If these spills continue as they have for the past three years,” the memo continued, “the County can expect to pay between [$700,000 and $800,000] each to the FDEP and SBEP for every year this matter remains uncorrected.”

Mike Mylett. Photo courtesy Sarasota County

County Public Utilities Director Mike Mylett has discussed with the commissioners the actions staff is pursuing to prevent future discharges from the pond. Among them have been improvements to the piping between the Bee Ridge WRF and the Central County WRF, next to Palmer Ranch neighborhoods. As a result, Mylett said, excess reclaimed water from the Bee Ridge facility can be transferred into deep injection wells on the Central County WRF property. He told the commissioners on Aug. 27 that the county just had received certification that morning showing that that initiative had been completed.

Staff also is working on a project to construct two aquifer recharge wells on the Bee Ridge WRF site, he has explained. The wells are scheduled to be completed in June 2023.

Attorneys’ fees and other costs

One further stipulation in the lawsuit settlement calls for the county to pay $265,000 for a combination of litigation expenses, attorney’s fees and the monitoring of county activities detailed in the agreement, County Attorney Elbrecht told the commissioners during their Sept. 10 meeting, which was conducted in Venice.

Following Elbrecht’s comments about the settlement, Commissioner Ziegler asked how much of the proposed $265,000 payment involved attorneys’ fees.

The figure was about $150,000, Elbrecht replied. Attorneys who represented the nonprofits charged different hourly rates, Elbrecht added — from $300 to $400. “Something in that range.”

On July 14, the Office of the County Attorney memo said, the three nonprofit organizations provided a breakdown of their litigation costs and attorneys’ fees. “At that time, they had billed $195,453.50 in attorneys’ fees and $37,771.28 in expert witness fees,” the memo pointed out. “Plaintiffs offered to discount their attorneys’ fees by 25%,” the memo continued, and they included an estimate of $12,925 for completion of the settlement documents and an extra 16 hours in expert witness fees; the latter totaled $1,768. “Thus,” the memo said, “the settlement includes approximately $150,000 in attorneys’ fees, $40,000 in expert witness fees, and $75,000 for compliance monitoring over five years.”

Commissioner Alan Maio made the motion to approve the settlement, and Commissioner Nancy Detert seconded it. Ziegler did not offer any comment before Chair Charles Hines called for the vote.