County administrator calls for formal response by end of week
Three environmental organizations that filed a federal lawsuit against Sarasota County last year have notified the county that it is not in compliance with a settlement the County Commission agreed to in September 2019, The Sarasota News Leader has learned.
The nonprofits’ concerns are focused on reporting deficiencies and deadlines, their attorneys say in a May 11 letter to county staff.
The 2019 complaint, filed in the U.S. District Court in the Middle District of Florida, in Tampa, used documentation to show that the county had illegally discharged close to 1 billion gallons of treated wastewater from a storage pond at its Bee Ridge Water Reclamation Facility (WRF) over a period of years. That reclaimed water contained “high levels of nutrients,” the nonprofits pointed out in their lawsuit, adding that the water was “not treated for surface water discharges.”
Spills from the other county water reclamation facilities also were noted in the complaint.
In October 2019, the plaintiffs and the county agreed to a Stipulated Order of Dismissal of the lawsuit, as well as the court’s retention of jurisdiction in the case.
In their May 11 letter to Assistant County Attorney David Pearce, the lead attorneys for the plaintiffs — Justin Bloom, director of the Suncoast Waterkeeper in Sarasota, and Kathryn Schmidt of the Van Ness Feldman law firm in Washington, D.C. — provided details about the noncompliance issues. They were writing on behalf of the Suncoast Waterkeeper, Our Children’s Earth Foundation and the Ecological Rights Foundation.
For example, they noted issues with the March 10, semi-annual report prepared by the county’s consultant, Kimley-Horn and Associates of Sarasota.
The letter says the report “substantially lacks information regarding the County’s status and progress since the Court’s entry of the Stipulated Order.”
“In addition,” Bloom and Schmidt continued, “we are aware of additional work being performed by the County that is not being reported in the [Kimley-Horn document] that should be included … In Federal Clean Water Act settlements such as the Stipulated Order negotiated in this matter,” they wrote, “it is imperative and in the County’s interest that the County document its compliance for the record in its semi-annual reports.”
In a May 11 memorandum to county Public Utilities Director Mike Mylett, Kevin Draganchuk, president of the nonprofits’ consulting firm — CEA Engineers in Bloomingburg, N.Y. — explained, “Based on my years of experience in compliance monitoring of court orders, the [Kimley-Horn] Status Update does not meet the standards for inclusion of detailed information, work and project schedules, and completion required in federal court settlements. Because periodic reports in these cases are ‘for the record’ as the method where the municipality documents its compliance, it benefits a municipality to report as much information as possible regarding all work done in the prior six-month reporting period and all work planned for the upcoming six months for each separate work requirement of the court order.”
Given what Kimley-Horn had provided, Draganchuck continued, “[I]t is impossible to tell the extent to which Sarasota is complying with the [stipulated court order].
In response to a News Leader request for comments on the need to send the letter, Bloom of the Suncoast Waterkeeper emphasized in a May 12 email that the nonprofits were “not invoking the dispute mechanism in the settlement at this time. Our approach here is to build on the good dialogue we’ve had with the county and to offer them time to respond and some suggestions and resources to help them.”
Bloom added, “I anticipate that our concerns will be resolved.”
Nonetheless, Bloom and Schmidt did formally notify Assistant County Attorney Pearce in the letter that, in accord with the stipulated court order, the nonprofits were demanding “stipulated payments in the amount of $150/day accruing every day since March 11, 2020 that the County fails to provide the information required [in the semi-annual report],” with emphasis in the letter.
If the county agrees in writing to provide the missing information by June 15, Bloom and Schmidt added, and the details are satisfactory to Draganchuck, the nonprofits “will consider decreasing stipulated payments.”
Assistant County Administrator Mark Cunningham informed the county commissioners about the letter in a May 11 email. A meeting would be scheduled among representatives from the Office of the County Attorney, county administrative staff and representatives of the Public Utilities Department, he added, with the goal of having a response “finalized by the end of the week.” He would provide a copy of that response to the commissioners, he added.
Replying to Cunningham, and copying the commissioners, three minutes after Cunningham’s email was sent, County Administrator Jonathan Lewis made it clear to the commissioners that the response would be ready “by the end of the week.”
The environmental groups proposed “a simple and quick resolution” to all the issues detailed in the May 11 letter: The county can remedy them by June 15 “in a Second Non-Material Modification to the Stipulated Order.” The organizations attached a proposed draft of that document and called for county representatives to sign it by May 25. Otherwise, they indicated, they would be forced to pursue the formal dispute resolution process outlined in the stipulated court order.
A focus on cooperation and praise for efforts underway
Bloom and Schmidt did note in their letter, “We recognize that the [county] may be lacking resources due to COVID19, and if COVID19 is impacting the [county’s] ability to perform work under the Stipulated [court] Order or to document its progress under [a] Consent Order [the commission also agreed to last year with the Florida Department of Environmental Protection], we are open to discussing alternative solutions.”
“The Environmental Groups support and acknowledge the County’s work on its wastewater infrastructure,” they added, “especially the County’s efforts toward establishing interim and permanent solutions to prevent overflows from the Bee Ridge WRF Storage Pond, ensuring the necessary booster pumps are in place in time for the next rainy season to convey water out of the Pond, making progress through its pilot project to achieve effluent concentrations of Total Nitrogen below 10 [milligrams per liter] required for aquifer recharge, and staying on-course toward Advanced Wastewater Treatment and new deep wells at that Bee Ridge WRF,” the letter continues.
Nitrogen has been identified as the main source of food for the red tide algae, Karenia brevis, researchers have explained. Last year, after the federal lawsuit was filed, county staff began working on strategies to eliminate the types of illegal spills identified in the complaint. Among the measures that then-Interim Public Utilities Director Mylett and his staff proposed were construction of the aquifer recharge wells at the Bee Ridge facility, along with conversion of that plant to Advanced Wastewater Treatment status at a potential expense of $160 million.
After the Advanced Wastewater Treatment project has been completed, Mylett told the commissioners, the reclaimed water from the Bee Ridge plant would have a nitrogen load of close to 3 milligrams per liter, instead of the range of 10 to 14 milligrams per liter noted during a May 2019 presentation to the board.
The aquifer recharge well project is underway, as Mylett pointed out during a news media tour in early March. The wells, which will be about 1,700 feet deep, will be used to prevent overflows from the Bee Ridge WRF storage pond, and they will replenish the aquifer, Mylett explained.
As a short-term fix — until the wells can be completed — county staff last year began working on the installation of booster pumps to enhance the pressure and flow of water between the Bee Ridge WRF and the Central County WRF, which is located on Palmer Ranch. Mylett noted that reclaimed water then could be diverted, as needed, into the existing deep-water injection well at the Central County WRF site.
Shortly before the County Commission agreed to the lawsuit settlement — on a 4-1 vote, with Commissioner Christian Ziegler in the minority — another 75,804 million gallons of reclaimed water had flowed out of the Bee Ridge WRF’s storage pond into a wetland in the Phillippi Creek watershed; that occurred between Aug. 15 and Sept. 5, 2019, as documented by the Florida Department of Environmental Protection (FDEP). County staff cited continuing rains and flooding as the reason for those spills.
The environmental nonprofits’ letter also said, “We further note the County’s new public alert system [Alert Sarasota County], which hopefully will prove to be an additional, reliable mechanism for informing the public about sewage spills,” the letter added. “Most importantly,” it continued, “we credit the County for maintaining open communications and a collaborative stance with Mr. Draganchuk, who shares the County’s objective of solving problems and completing the work as planned.”
Bloom and Schmidt’s May 11 letter also pointed out that the county was required to develop a written Sanitary Sewer Overflow Response Plan (SSORP) by Dec. 31, 2019. That plan was to include “standard operating procedures” for responding to such overflows. Those would address cleaning up and disinfecting the impacted areas; determining the cause of each overflow; remedying the cause; preventing public contact with the areas affected by the overflows; and notifications to the public about the events, among other details, the letter said, in reprinting a section of the settlement.
On Jan. 27, the letter continued, their consultant, Draganchuk of CEA Engineers, “provided his review and comments on the County’s SSORP to County staff, explaining its deficiencies and recommending changes to the SSROP necessary to achieve compliance with an industry standard SSORP.”
In that Jan. 27 memo to Mylett of Public Utilities and Gregory Rouse, the county’s utility planning manager, Draganchuk pointed out that an SSORP “must provide the detailed strategy and procedures to deploy County staff, equipment, and materials to stop and remedy [sanitary sewer overflows and spills] and protect the public from the potential adverse health impacts …”
For one example of the deficiencies, Draganchuk wrote that a section of the county SSORP says only “that all necessary steps will be taken to secure the spill, every effort will be made to keep the spill from entering the waters of the State, and powered lime will be used to disinfect.”
It offers no details to guide staff in taking those actions, he pointed out.
For another example, he cited the lack of specific procedures for notifying the public within the vicinity of a spill, in an effort to prevent access to the affected area because of concerns about health risks. Section 4.0 of the county SSORP states only that “cones, barricades and warning signs will be posted in the affected area,” he noted.