PIE sponsored a day of service to commemorate the 20th anniversary of 9-11 with a food drive to benefit the Englewood food pantries and a ceremony at the flag pole.  At sunrise, the flag was lowered to half-staff in honor of the fallen.  At sunset, Islanders gathered at the flagpole to bring their donations and watch the changing of the flag.  Islander Ray Smith, who organized the ceremony, read a proclamation from the President. Then our Island firefighters Eddie and Tyler joined Ray and Gary Galloway in retiring the old flag and raising the new flag.  It was a lovely and meaningful event.

It's unusual for a sea turtle to nest in the daylight, and even more rare to have a photographer on site to capture the moment!
On July 23rd, at about 9:30 in the morning, a lone sea turtle crawled out of the surf to lay her nest on Don Pedro Island north of the Colony Don Pedro. Onlookers said that the loggerhead brushed past a beach chair that was propping up a kayak, knocking the kayak off of it's perch.  The turtle then crawled up the beach, stopping to carve out a nest and lay her eggs.
Award-winning photographer Mary Lundeberg (www.marylundeberg.com) was on-site with the Turtle Patrol, and we appreciate the lovely photos that she shared with us.

We continue our timeline of activity for EU's application for wastewater certification on the Island.

On February 2nd the PSC posted the NOTICE OF PROPOSED AGENCY ACTION ORDER DENYING PETITION FOR TEMPORARY WAIVER OF RULE 25-30.033(1)(p) and (q), F.A.C., BY ENVIRONMENTAL UTILITIES, LLC.  This document details the decision made at the Commission Conference on January 5th denying EU's Motion to Bifurcate and Temporary Rule Waiver.  You can view the video of the Commission Conference at our Sewer/Utility Reporting page. 

The informal Action Committee who had been working in opposition to EU's application was formally approved at the PIE Board meeting on February 8th.  The members are Linda Cotherman (Chair), Theresa Blanco, Heather Stout and Meryl Schaffer.  At the same meeting, the Board voted to approve the $10,000 expenditure to retain attorney Kelsky Law, with further expenditures not to exceed 10% of the original $10,000 retainer without board approval.

On February 4th, Little Gasparilla Island Property Owners Association (LGIPOA) officially became a Party of Record.  This means that they are now active participants in the future Administrative Hearing for this application.

Charlotte County joined the PSC docket list of "Interested Persons" on February 12th.  An "Interested Person" is someone (or an entity) that requests notification of any orders or decisions made by the PSC in this docket.  The letter from the Office of the Charlotte County Attorney lists both Jean Stasio (Assistant County Attorney) and Craig Rudy (Charlotte County Utilities) as contacts. As of March 1, there are 121 interested persons in the docket. 

On February 19th, the PSC granted EU's request for confidential classification of certain financial documents filed with their application.  According to the Order that was posted, the information contained in EU's Application, for which confidentiality was requested, consisted of “personal financial and other information such as personal residence, personal vehicles owned, personal property owned, personal investment, personal indebtedness, etc.”  The PSC determined that the information in question satisfied the criteria set forth in Florida state law for classification as proprietary confidential business information.

Kelsky Law quickly filed a Motion for Reconsideration on February 25th. It argues that "Environmental Utilities, LLC’s financial health is central to the determination of whether it can satisfy the requirements necessary to obtain a Certificate of Authorization"  and requests that the Commission "reconsider its February 19, 2019 order and require the publication of the financial information the order protects."

​There has been no response to the Motion posted to the docket at this time.

At the PIE. Annual Membership Meeting held on January 2nd, the P.I.E. Board was directed in a nearly unanimous motion to hire an attorney to fight the granting of the application by Environmental Utilities, Inc. to provide sewer service to the Island.  

On January 11th the Board of Directors met and discussed the issue. Board member Theresa Blanco, an attorney from PA, had been investigating possible lawyers in Tampa to hire for representation to PSC. PIE member Jeff Provost mentioned contacting Susan F. Clark of Radey Law Firm, a former PSC Commissioner. She referred him to D. Bruce May at Holland & Knight.  

PIE already had an informal Action Committee who had been working in opposition to EU's application for several weeks. Following the Board meeting, the committee met and determined that the best value and and quality lawyer to hire was Kelsky Law Firm in Plantation, FL. Kelsky Law is the same counsel representing the Cape Haze POA. Here are the reasons behind the decision:

1. Cost savings. CHPOA agreed to permit Kelsky to represent both PIE and CHPOA as clients.  The two associations will share equally (50% each) in all costs that are joint expenses related to the case, including the cost of expert witnesses.  Any costs that are specific to PIE will be billed separately.  When combined, our retainer added to the CHPOA retainer should give us a good amount of mileage in this case.  In addition, we have the advantage of not having to pay to bring a lawyer “up to speed” on the particulars of the docket item.
2. Strength in numbers. Whether or not the subtleties of CHPOA’s position with respect to central sewer align with ours, the purpose of the current exercise is to stop Environmental Utilities, LLC from being certified in this area.  Coming together under the same roof has the advantage of not only providing a united front, but also sharing resources and expertise to be found in each association.
3. Best Option: We investigated several suggestions. One was an Tom Crabb, an attorney at Radey Law firm who works closely with Susan F. Clark. Theresa Blanco contacted Truett Gardner from Gardner-Brewer-Martinez-Monfort in Tampa.  These large law firms frequently represent the developers and utility companies in these issues and are not inclined to take on "the opposition". Besides, their hourly rates are staggering.

Brad Kelsky is a referral from William Dahms, VP of the Cape Haze POA.  He has been counsel for the "Friends of Cape Haze" for many years. The POA has used his services twice before on both infrastructure and Comprehensive Plan issues in opposition to Charlotte County.  Both times they prevailed.

PIE Board member Theresa Blanco had a screening call with Mr. Kelsky – attorney to attorney – and was comfortable with our choice.  The Board President then spoke with him and was satisfied with his willingness to work with our own committee for research purposes to keep costs down. Mr. Kelsky gets high grades from his peers for ethics.

The President signed an agreement with Kelsky Law on January 25th. Mr. Kelsky then filed a formal "Notice of Appearance" on Monday, February 1st. He is listed in the docket summary as representing Cape Haze POA and PIE.

NOTE: This is not an official transcript, but rather a detailed summary of the discussion held at the Conference of the Florida Public Service Commission (FPSC) on Tuesday, January 5, 2021 related to Agenda Item 3, Docket 20200226 – the Application for Certificate to provide wastewater service in Charlotte County, by Environmental Utilities, LLC [EU].

Present from the FPSC were: Commissioner Gary F. Clark (Chairman), Commissioner Julie I. Brown, Commissioner Art Graham, Commissioner Andrew G. Fay, Commissioner Mike LaRosa, Mary Anne Helton (Deputy General Counsel). Jennifer Crawford (Attorney Supervisor) was present on the phone.

On Tuesday, January 5th the Florida Public Service Commission (FPSC) met for a Commission Conference where item 3 on the Agenda was Docket 20200226, the Application for certificate to provide wastewater service in Charlotte County, by Environmental Utilities, LLC [EU}.
 
Before the Commission was a Motion to Bifurcate and Temporary Rule Waiver which would allow the applicant, EU, to separate the rate-making component (project costs, estimated connection fees and maintenance rates) from the certification of the service area.
 
The discussion began with a summary of the item by Mary Anne Helton, Deputy General Counsel for the FPSC.  She indicated that staff recommends the Commissioners approve the temporary rule waiver on the grounds that strict application of the rule would result in financial hardship to the utility.
 
Ms. Helton then noted that about 144 customers sent emails over the weekend, a majority of them objecting, and that more had come in overnight, also objecting to the waiver. She summarized the objections given in the emails as follows:

• If the motion were granted, there would be no information available about rates until 2022.
• The lack of financial strength of EU and the owner/operators Jack and Diane Boyer.
• 6 customer emails claiming the financial hardship needed for the waiver was not demonstrated.

 
Chairman Gary L. Clark then called for registered “interested parties” to speak. Linda Cotherman spoke first, representing both herself as an individual, and as a Board member of the Palm Island Estates Association. Her arguments in front of the commission included:

• Deficiency of notice to residents. Many stakeholders did not receive their notices due to COVID, slow down of USPS and the holiday season.  Also, the very title of the Notice indicated that rates and charges were included for review in the application.
• Financial stability. Because there is no in-depth information known about the owners’ liens or foreclosures, the financial stability of EU needs to be reviewed.
• Misleading cost to property owners. Mr. Boyer has publicly used a cost figure of $20,000.00 including connection fees and removal of old septic systems. He has shown no basis for these numbers.
• Intimidation. Mr. Boyer has stated to elderly residents that any increase in his attorney’s fees caused by customer protest will be added to the customers’ sewer charges.  The customers have more of a hardship in not knowing the estimated rates and charges than Mr. Boyer in his need to provide them.
• Lack of Financing. Why continue to review the project if he does not have the financing nor can he secure a commitment for financing?

None of the Commissioners had questions for Linda Cotherman.
 
Next Barbara Dwyer from Little Gasparilla Island Property Owners Association spoke. “How can you rule to bifurcate from the plan before certificate is issued? You are essentially saying that the certificate will pass before the consumer has had adequate time to review and announce their concerns.”

Chairman Clark then called for questions.
 
Commissioner Fay pointed out the large number of emails on the docket. “Staff had mentioned the correspondence that came in yesterday afternoon and last night, and um, it seems a little bit unusual to me that when I’m looking at the numbers starting from the filings yesterday there’s hundreds of those.” ”Did we receive all of them yesterday or were they just put into the system yesterday? It seems significant that we would need to take these into account.”
 
Deputy General Counsel Helton replied “It’s my understanding from my clerk that they came in over the weekend.”

Martin Friedman, Attorney for Environmental Utilities then spoke. He gave a brief background of the 2017 Sewer Master Plan, which he said was referenced in the Bulk Wastewater Treatment Agreement between Charlotte County and EU). He made the following points:

• the proposed service area scored 4-5 (the worst) on the rating scale so they are high on the list for conversion from septic to sewer within a 3-5 year period
• Commission considers County’s master plan when they consider applications
• today is only about bifurcation, all other issues are for another day
• statute requires that prior to getting a DEP permit, EU needs permits for the engineering needed to provide estimates of rates and charges but he needs the certificate to get those permits. This is why they can’t estimate cost.  Bifurcation allows utility to go ahead with permitting, permitting allows the engineering to find out what the costs are going to be.
• Since 2005 commission has allowed bifurcating rates from the certificate
• A concerted effort has been made against the project by customers in the affected communities because nobody wants to pay the fees to hook up to sewer. “But the County has made the decision that these Islands and Cape Haze have to be sewered because they want to protect the environment.”

 
Commissioner Julie Brown questioned Mr. Friedman, asking “I’m assuming you have to have some kind of construction documents, right?”

Mr. Friedman responded “We do have a preliminary engineering study that sets forth several alternatives, but whatever we build has got to be consistent with County standards.” 
 
Commissioner Brown returned, “But you have to have some type of preliminary budget in support of your preliminary construction?”
 
Mr. Friedman replied “No. Not necessarily.”  He went on to say “not anything near what you’d be required to complete the financial documentation for the commission to grant rates & charges.  "That’s why the numbers out there, 10-20 thousand dollars, are just guesses until it’s permitted.” He continued by saying EU believes they can put together a plan to sewer these areas that is financially feasible. And they don’t want to make a substantial investment in something that doesn’t happen.
 
Commissioner Brown cut him off, noting “So no cost estimates until 2022?” Brown also said that Environmental Utilities had the burden to prove substantial financial hardship.
 
Commissioner Brown then asked Staffer Mary Anne Helton if bifurcation is the norm. Miss Helton deferred to Jennifer Crawford (on the phone), who said she has not done a rigorous search for “true originals” where there is no pre-existing utility and no plant-on-the-ground. Bifurcation is usually done for existing plants. She explained some preexisting companies ask for bifurcation, and said she was guessing that a ballpark of 30% of true originals (completely new start-ups) have been given bifurcation.
   
Commissioner Brown noted she was worried about the “volume of concern” from potential customers, and asked Ms. Crawford “What is the recourse of the customers who have genuine concerns?”  She replied that with the certificate, the customer has opportunity to protest the certificate and request an administrative hearing.  If bifurcation is allowed, when rates are set later customers will have the opportunity to protest the rates.
 
Commissioner Brown replied “I hope the customers are hearing that.  I don’t think waivers should be the norm, and I think the burden of a substantial hardship … is on the utility.   If we continue, this will be the standard going forward.”

Commission Chair Gary Clark asked “What is our obligation from that point on in regards to approving the new rates? What latitude do we have?” He was concerned about the rates being too burdensome when they are finally supplied. For example, if the rates provided were $20,000 or more for the connection fees, how do they grapple with the cost of the project vs. what is fair, just and reasonable rates for the utility? Ms. Helton suggested that if the customer takes issue with the rates provided by EU based on their costs, then they or the Office of Public Counsel can request a hearing to challenge the rates.

“If we see a legitimate cost-based rate that is not fair and reasonable, we begin to have an issue there” Commission Chair Gary Clark said. “I don’t want there to be any misconception that this is a green light to proceed and you’re coming back with $20,000.00 in connection charges, this commission will set you back on your heels.” He was assured by Ms. Helton that allowing the waiver was not a green light for the project to go forward. More discussion followed about the responsibility of the PSC to set rates that are based on cost but are also fair and reasonable.

Commissioner Fay turned the discussion back to the legal components required by the waiver and if granted, does it become the norm. Commissioner Fay concluded with “Legally applying the waiver requires substantial hardship to be demonstrated and I’m not sure this is done here.” More discussion followed about setting precedent with this waiver. Ms. Crawford was asked if it was probable that they would be seeing similarly situated utilities in the future.  She responded that “for true originals, yes, I would expect that we would see more of these in the future.  We don’t get but so many true originals from year to year” indicating that is a fairly novel issue.

It was mentioned that if the waiver wasn’t granted it would essentially delay the process. Mr. Friedman was asked how long it might take to begin service. “Hopefully we would begin providing as early as 2022” he responded.

The attorney from the Office of Public Counsel (OPC) was asked if they have been contacted by many of these customers. OPC said that they had. She thanked them for their involvement and comments at the hearing but had no comment with respect to the bifurcation.

Chairman Clark called for a motion, and it was moved to accept the staff recommendation and vote yes for the waiver. At that point, the Chairman called for a second. No one would second and the motion to grant the waiver died for lack of a second.

It was then suggested that a deferral would be appropriate. It nearly ended there but Deputy General Counsel Helton reminded the commissioners there was a deadline to generate a vote. According to the staff recommendation, the Commission has a limited window of 90 days to either grant or deny the waiver. The 90-day period expires on January 12, 2021 so the Commission could not defer the matter but instead had to make a final ruling on the request for a waiver.

A motion was then made to deny the request, and there was a second. The motion carried with 4 commissioners assenting and 1 dissenting. The bifurcation waiver would not be granted.

[CLICK HERE to view PSC DOCUMENT_Motion Denied]

END

The denial of the Motion to Bifurcate and Temporary Rule Waiver does not close the application to provide central sewer on the Island, nor does it end the process. It simply requires that EU file their anticipated rates and connection fees along to complete their application prior to the Commission vote on certification. According to reliable sources at the County, EU plans to continue with its application for a wastewater certificate.
 
The 30-day period from the date that EU's notice of mailing was posted on the PSC docket expires on January 16th, 2021. This is the deadline to submit a formal letter of objection to EU's application and to request a public hearing. We will notify you if any date changes appear on the docket.  PIE received approval from its membership at the Annual Meeting on January 2nd to use the legal fund to hire an attorney to represent Island stakeholders for the purpose of becoming an "intervenor" in the process and at the administrative hearing.
 
The PIE Board meets again on Monday January 11th, where further discussion will be held. More involvement of the membership may be necessary if EU does not withdraw its application.

At the 2021 PIE Annual Membership Meeting held on Saturday January 2, 2021, the membership, in a nearly unanimous vote, approved having PIE represent its membership by opposing the application by a private utility (Environmental Utilities, LLC) for a central sewer system on the Island. 

Included in the discussion was: 

(1) sending a letter from PIE (as an organization) to the PSC by the January 4th deadline, requesting that EU’s Motion to Bifurcate and Temporary Rule Waiver be denied, and

(2) writing a letter from PIE opposing EU’s application for certification by the 30-day deadline to respond to notice.  

Using the legal fund to hire an attorney to represent the membership in objecting to the application was also discussed as part of the motion approved.

It was reiterated several times that the position that PIE will represent on behalf of the membership does not oppose central sewer in general, but specifically opposes central sewer constructed and maintained by a private utility.

12.30.20
The following are notes from the draft meeting minutes for the 12.14.20 PIE Board meeting. 

Palm Island Estates Homeowners Association
12/14/20 Board Meeting
 
President LouEllen Wilson called the meeting to order at 5:06. 
 
Present: Craig Baresel, Pat Gordon, Sally Johnson, Heather Stout, Lindsay Yates.
Zoom attendees: Candy Cohen, Linda Cotherman, Cori Palmere, Meryl Schaffer.
A quorum was established. 
 
Guests in attendance: Jack & Diane Boyer, Richard Leyden (LGIPOA), Monica Errico, Jayne Kebe, Teressa Fesperman, Lynne Petersen, Jon Goranson.

Guest Presentation:

Jack Boyer, representing Environmental Utilities, LLC [EU], provided information on a wastewater treatment service area that would include Cape Haze I and II, Little Gasparilla Island, Don Pedro/Knight Islands plus the Resort. 
 
Letters proposing that EU, LLC provide bulk water service to the “certificated service area” [CSA] will be mailed out to all stakeholders December 17, 2020.  All have 30 days to respond.  The vote to accept EU as the provider would come before the Charlotte County Commission on 4/1/2021.
 
Other information provided:
1. 2,183 potential units (including vacant lots) are included in the CSA
2. The Public Service Commission [PSC] uses 3 factors in considering justification for moving from septic to sewer:

• Is there a need?
• What is the applicant’s experience in utility management
• Financial ability of the applicant

3. Time frame could be 3-5 years, with Cape Haze being first hooked up
4. Pros and cons of the two types of systems (low pressure & vacuum) are to be considered. 

EU would be able to provide 418,000 gallons/day bulk water.
 
Jack would prefer to install a vacuum system because it has less maintenance. The low-pressure (grinder pump) system would initially cost less but would incur higher maintenance costs.  The vacuum system would cost more initially which could be offset utilizing grant money (for which there is supposedly a lot available). The grinder pump (low-pressure) system would require an approx. 4-1/2‘x 5’ booster pump on each property.  The vacuum system may require a lift station at the ferry landing. CLICK HERE for a simple PRIMER on the types of sewer systems used for wastewater removal.
 
Question: What is the time frame and rates?
Jack estimates1 year permitting, 1-year installation period (construction), 1 year to connect. The project will be done in phases:
Phase 1 - Cape Haze (first connected, 1-2 years for next)
Phase 2 - Don Pedro, Palm Island, Knight Island
Phase 3 - Little Gasparilla
He anticipates a 3- to 5-year window to begin and said that what takes the longest is to survey everything. The vacuum system would need to be connected all at once, but the low-pressure system can be hooked up as you go. 
RE. rates: they are hiring a financial consultant to work on fees which will be published on the PSC website.  Right now he doesn’t know.
The Resort would be purchasing bulk water only as they are already hooked up to their utility (Knight Island Utility, Inc. or KIU).
 
Question: Are you a private utility? Jack responded that 50% of utilities are private in the US. Will it cost more than Charlotte County Utilities? He can construct at the same rates as the County but can’t maintain it at the same rates. Three options to lower costs: eliminating tangible tax is a possibility – he has never seen it done in this county but it has been done in other FL counties and therefore is not impossible.  Jack is looking for grants to support setting up the connections. 
 
Question:  What entity controls the rate EU is allowed to charge?  The Florida Public Service Commission. What is the maximum profit allowable per year currently?  8.6%
 
Question:  Would connecting to sewer require destruction of old septic?  Yes, EU would be required to crush & fill in septic system at hookup.  What will the cost be? To be determined.
 
Question:  Why can’t Charlotte County be the provider for all the Islands, just like the mainland?  Charlotte County doesn’t want it. They got burned on the Rotonda Sewer Utility years ago.
 
Question:  Do we have any other options?
(1) Charlotte County is the best alternative
(2) We can form a separate utility district, which would include an elected board of directors. A Special District is a unit of local special-purpose government that operates within limited boundaries. This would combine all of the water and sewer utilities on the Islands into one entity (Water systems on LGI, Bocilla Utility, Inc., Knight Island Utility, Inc. and sewer Environmental Utilities, Inc).
 
Presentation ended at 5:49.