Today (05.25.22) PIE received an email from our attorney Brad Kelsky with the subject line “Staff is recommending denial.” Attached was the comprehensive, 54-page Memorandum from the PSC staff to the Commissioners outlining each of the 14 issues associated with the wastewater application. 

Under Issue 2 “Need for Service”, the staff examined the arguments and determined that EU has not established a need for central sewer service here.  In Item 9 “Public Interest” the PSC staff states as follows:

“As discussed in Issue 2 [ed. note. Need for Service], staff recommends that the Utility has not demonstrated a need for service in the proposed service territory. Staff believes that this is of significant concern. The Utility has not provided any request for service from existing residents of the proposed service territory, and written correspondence has indicated that the existing residence are largely opposed to EU’s application. EU has not provided evidence that any environmental regulator mandated the conversion of septic systems to central sewer, and no evidence has been provided substantiating EU’s claim of an environmental or health related need. Nor were any County leaders present during the hearing to clarify the needs of the County. Finally, although customer preference is not an appropriate basis for granting or denying a certificate application, in terms of demonstrating a need for the service, the overwhelming majority of prospective customers who testified before the Commission stated they were in opposition to the application.

Since EU has not demonstrated a need for service, staff believes that EU’s financial and technical capability is irrelevant. Since no need for service exists, and the existing residents are largely opposed to EU’s application, staff believes the Utility’s application is not in the public interest. Therefore, staff recommends that EU’s application for a wastewater certificate should be denied.”

Note the references to the substantial opposition to EU’s proposal.  In the case background, staff wrote: “A total of 53 customers spoke at the service hearings and over 1,000 written customer comments were received.” It was clear that the participation of an engaged community was influential in the recommendations. 

Our Island communities should be very proud of the impact we have had in these proceedings. Every action– writing emails, watching and speaking at the hearings and donating to the legal Action Fund – made a huge difference.

A summary of the staff recommendations appears on the Commission Conference Agenda for June 7th (CLICK HERE to view). This is where the Commissioners will make their final ruling on the sewer docket by approving or discarding the staff recommendations.

CLICK HERE to view the detailed Memorandum from the PSC staff.

After a few cancelled dates, the new fire house ribbon-cutting was under way. The weather was letter-perfect, the turn-out was good and the new building was most impressive!

The Administrative Hearing for EU's central sewer application will take place over two days. There are 2 parts to the Hearing: 1) The Technical Hearing and 2) The Customer Service Hearings.  Here is a breakdown of what to expect at the Technical Hearing.

This is the courtroom drama portion of the hearing. The parties that will be participating in the Technical Hearing are:
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1. EU (represented by Martin Friedman and John L. Wharton of Dean Mead Law Firm, Esquires)
2. PIE (represented by Brad Kelsky, Esquire)
3. Linda Cotherman
4. The Office of Public Counsel (represented by Richard Gentry and Anastacia Pirrello, Esquires)
5. The PSC Staff (Jennifer S. Crawford and Ryan Sandy, Esquires)
6. Advisor to the Public Service Commission (Mary Anne Helton, Esquire, Deputy General Counsel)

Each of the parties will be giving a brief opening statement.  Then each side will present their witnesses.

FIRST: DIRECT TESTIMONY

Each of the witnesses have already filed Direct Testimony with the PSC, including Exhibits to support their arguments. So, at the Technical Hearing, each witness will have up to 5 minutes to summarize their direct testimony. After the summary, they will be subject to cross-examination.  This is the order of appearance of the witnesses:

IN SUPPORT OF THE APPLICATION (EU)
John R. Boyer (EU Owner/Operator)
Jonathan H. Cole (Engineer)
Deborah D. Swain (Accountant)

OPPOSED TO THE APPLICATION (PIE)
Meryl Schaffer (PIE President)
Ellen Hardgrove (Land Use Expert)
Robert Weisberg (Water Quality Expert)
Stephen J. Suggs (Engineer)

OPPOSED TO THE APPLICATION (Independent)
Linda Cotherman 

In this procedure, "friendly" cross-examination will not be allowed.  So, for example, PIE's attorney may only cross-examine the witnesses from EU and the attorneys from Dean Mead may only cross-examine the witnesses from PIE and Linda Cotherman. 

NEXT: REBUTTAL TESTIMONY

Following the Direct Testimony, three witnesses will present their rebuttal testimony: Again, the rebuttal testimony was pre-filed with the PSC before the hearing. But this is the opportunity for the opposition to cross examine these witnesses again, based on their rebuttal testimony.

1. John R. Boyer
2. Jonathan H. Cole
3. Deborah D. Swain

​If you want to dig in the tall weeds, CLICK HERE to view the official “Pre-Hearing Order”. This contains all of the information about how the Technical Hearing will proceed.  TIP: Scroll down to page 6 Part VIII “Issues and Positions”. Here you can read the 14 issues identified by the PSC related to the application, the position on each issue taken by each of the parties and which witness will provide testimony on that issue. It’s an interesting read.

If you cannot attend the hearings on 2/8 & 9, you can watch or listen to the proceedings on the live video broadcast the day of the hearings. Go to the Commission website at www.FloridaPSC.com. Look for the “Watch Live Broadcast” icon on the left side of the homepage. An audio only option is available by dialing 850-413-7999. The archived video will also be available after the hearings.

 There are two types of hearings that make up the Administrative Hearing:  the TECHNICAL HEARING and the SERVICE HEARINGS. 
If you enjoy the legal-ese, CLICK HERE to view the official Notice of Customer Service Hearings. EU recently sent this Notice via USPS.​
If not so much, read on below.

This is the portion of the Administrative Hearing where the attorneys and their witnesses present their arguments to the PSC.  Time has been reserved on Wednesday, February 9, 2022, for more of the technical hearing if needed. The continuation of the technical hearing would start immediately following the service hearing on Wednesday, 2/9.

We are encouraging all stakeholders to attend the technical hearing.  We are aware this will make for a long day in Venice, but we need to show solidarity in opposing this sewer proposal.

The customer service hearings is the opportunity for prospective customers of the Utility to speak to the Commissioners about this application for a wastewater certificate.  There will be two customer service hearings. You can register to speak at either hearing in one of three ways.
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1. You can register using the Commission’s online registration form. 
2. You may register to speak by calling the PSC at 1-850-413-7080 or by emailing speakersignup@psc.state.fl.us. Specify which date you would like to speak. Registration (online, phone or email) is open now. The deadline to pre-register has passed.  
3. However, if you have not registered to speak prior to the service hearing, you may register when you arrive at the venue.

Please note that the order in which persons will speak is based on the order in which they register. 

For legal purposes, speakers at the hearings are considered “witnesses” and will be providing “public testimony”. As such, the Commissioners and others are permitted to ask questions, but we are told this is rare. All who wish to speak should appear promptly at the beginning of the scheduled service hearing since the hearing may be adjourned early if no one is present to testify.

Please send an email to stopprivatesewer@gmail.com to let PIE know if you will be attending and also if you are registering to speak to the Commission. It will help us monitor attendance and encourage more folks to participate.

​If you cannot attend the hearings on 2/8 & 9, you can watch or listen to the proceedings on the live video broadcast the day of the hearings. Go to the Commission website at www.FloridaPSC.com. Look for the “Watch Live Broadcast” icon on the left side of the webpage. An audio only option is available by dialing 850-413-7999. The archived video will also be available after the hearings.

Your email matters!
​If you haven’t had a chance to send in your objection to EU’s private sewer proposal, it’s not too late. Take 10 minutes and answer any of these questions in simple terms.
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 ​1. Do you feel there is a proven need for the service?
2. Did you request sewer service on the Island?
3. Does the lack of information regarding the finances of this project concern you?
4. Does the lack of technical expertise of EU concern you?
5. Are you comfortable with the rates and charges associated with this project?
 
Simply forward your email to the following commissioners. Make sure to identify yourself with your name, address and email. Don’t forget to ask the PSC to deny EU’s application for wastewater service.

EMAIL TO:
Clerk of the Commission clerk@psc.state.fl.us
Commissioner LaRosa: Commissioner.LaRosa@psc.state.fl.us
Commissioner Clark: Commissioner.Clark@psc.state.fl.us
Commissioner Passidomo: Commissioner.Passidomo@psc.state.fl.us

​USE THE SUBJECT LINE:  RE. Docket #20200226-SU

We have not included a form letter template, as we've been advised that these letters should be personalized.  However, if you're stuck, we have lots of extra information that can help. Would you be interested in our list of Potential Impacts to Stakeholders? CLICK HERE.

Thank you for helping us stop this private sewer. And please urge your spouses, partners, friends and neighbors to write as well. Every email counts.

The Chief opened the floor to questions:

1. What do I do in an emergency?  Call 911 immediately. Dispatch needs your correct physical address. Turn on all of the lights in your house to better aid responders in locating the emergency. If someone is available, send them out to the end of the driveway to be visible and to assist responders to your emergency.  You may also notify Security or the Sheriff.
2. What about after-hours emergencies?  The new protocol is that Comms. (Dispatch) will alert the barge directly. There is a barge captain on call 24-7, and the response time is 15 minutes.What if my cell phone is from a different area code?Location identification is not done by cellphone number area code. It is now accomplished using cell phone tower triangulation.
3. Are there any problem locations on the island?  The addressing up at the Resort is still a problem.  Frequently renters don’t know the building name or number for identification.
4. What caused the recent fire at the house in the Resort?  HVAC failed.
5. Does the Fire Department have the code to the Resort main gate?  Yes.
6. What if there is only one egress at the property? You need to find some kind of alternative.
7. What if there is a fire on the beach? (not on a property) Call the Sheriff’s non-emergency #, not the Fire Dept.
8. Are beach accesses labeled? Yes, both within the Resort and down Island. There are 13 easements that are labeled “private” providing access for owners and their guests. There are 3 public easements: 1 each centrally located on Knight Island and Don Pedro Island, and one just south of the Resort gates.
9. Can I choose which hospital I am sent to? Yes and No.  It will depend on your emergency situation and whether it is classified as a “trauma alert”, in which case the FD will make the call.
10. Where does the Medevac land? There are multiple helicopter locations on the island, including at the ferry landing.
11. What about home equipment? Fire extinguisher: Type A, B or C. Use the acronym “P.A.S.S.”. Pull the pin. Aim at the base of the fire. Squeeze the trigger. Sweep from side to side. If you use it, use all of the contents until the cannister is empty. Smoke Alarms: Replace the batteries every year, replace the unit every 10 years.
12. When will the new Station 10 be open? Chief Fair is anticipating completion by mid-January. The driveway was poured on the day of the Q&A.
13. Is there room for shelter at the new firehouse? No.
14. What are the plans for the old station? Chief Fair indicated that the Fire Dept. has no say in what happens to the old firehouse.  Charlotte County classifies the property as “surplus” for sale and make the decision about how to proceed. Our Island Fire & EMS Advisory Committee is working with the CC representative to explore possible plans.

 
Chief Fair discussed extra costs that will impact future tax rates for our MSBU.  These include equipment replacement costs and also increasing the number of firefighters stationed on the Island.  Charlotte County has a 6-month study underway to determine the need for personnel, equipment, and new facilities county-wide. Our ad valorem taxes (General) covers the cost for 1 person/ all shifts and our Fire & EMS taxing unit (MSBU) pays for 1 person/ all shifts.
 
There was discussion of increasing the personnel with the 24/7 coverage. Fire protocol dictates that for every 2 firefighters that enter a building, there must be 2 firefighters that remain out. This protocol can only deviate if life is in danger. We only have 3 firefighters on per shift at this time.  Chief Fair also reminded us that Station 10 personnel are exclusive to the Island. They do not leave to respond to emergencies anywhere else.
 
Finally, the Chief talked about the Red Dot Program, which homeowners can use to indicate the ready availability of emergency information for the responders.  Literature was provided.  Information about the Red Dot program is available at the firehouse.

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.