After a year and a half of legal wrangling, the Public Service Commission delivered the ruling that Island stakeholders have been hoping for: the Commissioners denied EU’s application to provide wastewater service to the Islands.
At a very brief Commission Conference the morning of June 7th, the 3-Commissioner panel had an opportunity to open discussion and ask questions about the wastewater docket.
Commissioner LaRosa offered a synthesis of the arguments to deny the application. He opened his comments with a tribute to the uniqueness of our bridgeless barrier islands, and how it was a reminder that cases need to be assessed on an individual basis. He spoke about the lack of need for service, mentioning the absence of any requests for sewer service from individuals or from a developer as well as the overwhelming opposition to the proposal. He also said that in his experience, if a County supports a proposal they are usually well represented in the case before the PSC. He found the absence of strong participation on behalf of Charlotte County noteworthy.
Commissioner Passidomo had a question regarding Charlotte County’s mandatory connection ordinance and whether it could be construed as an argument supporting the need for service. Ryan Sandy [senior attorney] addressed this by explaining that hookup becomes a requirement where sewer is available, which would be after the utility had certification from the PSC. In addition, the preponderance of the “need for service” arguments weighed in favor of denying the application. He also mentioned the conflict with the County’s Comprehensive Plan. Commissioner Passidomo seemed satisfied and requested that this be included in the docket’s Final Order.
Staff suggested that the Commissioners vote on issues #A, 1-9 and 14 first, since following the recommendations provided on these issues would make the remaining issues moot. The Commissioners then voted to accept the staff recommendations including denying the application and closing the docket.
Please remember that a final victory lap is premature. EU has 30 days from the posting of the Final Order (due late June) to file an appeal of this decision. According to our attorney, no new evidence is permitted in an appeal. The appeal would be solely based on legal arguments as to whether the PSC decision remained within the guidelines of what is permitted by law.
The video of the entire Commission Conference can be viewed HERE. You can forward through the agenda items preceding the EU docket (we are last, item #11), but the whole meeting was very brief.
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.
THE TECHNICAL HEARING
This is the courtroom drama portion of the hearing. The parties that will be participating in the Technical Hearing are:
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)
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.
----- THE TECHNICAL HEARING -----
Tuesday, February 8th, 2022 starting at 10:00 AM
Robert L. Anderson Administrative Center, Commission Chamber,
4000 South Tamiami Trail, Venice, Florida.
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 -----
Tuesday, February 8th, 2022 starting at 6:00 PM
Wednesday, February 9th, 2022 starting at 9:30 AM
Robert L. Anderson Administrative Center, Commission Chamber,
4000 South Tamiami Trail, Venice, Florida.
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.
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 email@example.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.
----- PLEASE NOTE -----
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.
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.
Clerk of the Commission firstname.lastname@example.org
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:
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.