Relevant Correspondence

At our meeting on Thursday 4 Aug 2011, you asked for sight of the communication from FDEP so that you could review the amortized payment term of assessments with the County Administrator. I forwarded the email to you so that could be done.

I had also shown why the first sentence of the Crystal River Sewer Assessment document in relation to Health Hazard could not be substantiated when viewed in context of the application made in 1999, by the City of Crystal River to FDEP for the DSC grant and its associated CWSRF loans. Furthermore, the City Manager informed the BOCC at their meeting on 24 May 2011, that no testing had been done on septic systems adjacent to Kings Bay to detect whether leakage of effluent actually entered those waters.

It is also noted that as part of the process to implement the 2010 changes to F.S. Section 381.0065, in regard to OWTS, "DOH shall establish procedures for implementing a 5–year evaluation cycle, pump–out or repair of a failing system, and enforcement for failure of a system owner to obtain an evaluation of the system and failure of the contractor to timely submit evaluation results to DOH and the system owner. State–wide implementation for the evaluation and assessment program is January 1, 2016. Also, subsection 381.0065(7), F.S., has been created to ban the land application of septage from onsite sewage treatment and disposal systems after January 1, 2016".

County Commissioners and City Council members alike frequently aver that somehow the elimination of the targeted septic systems will materially help clean up Kings Bay. The mathematics and the scientific report into nutrient sources discharged from the springs say otherwise. Page 107, of the 1994 report, shows the discharge of 212 tons per year of nitrogen from Kings Bay springs as attributed to effluent from the 17,000 Septic–tanks in the entire springshed area of Citrus County. The conclusions of the report highlight an increasing nitrogen trend. Today's measurements indicate continuation of that trend with nitrogen concentrations in spring discharge water having trebled to 0.6 mg/L since being reported in 1994, at 0.2mg/L. The second Recommendation of the report calls for septic tanks in central Citrus County to be eliminated by 2015.

Notwithstanding this undermining of its major premises of health hazard and cleansing Kings Bay, the Interlocal Agreement also seeks to regulate how property owners may make use of their property. The public hearing required by the Florida Constitution and F.S.281.011in these circumstances, was not given to the Interlocal Agreement. Moreover, albeit in context of the comprehensive planning process, F.S.163.3181 (1), emphasizes a need to "provide real property owners with notice of all official actions which will regulate the use of their property." It is noted that the freeholders have paid to install their OWTS systems to the approved, permitted and inspected by DoH to County specifications.

The Interlocal Agreement is thus exposed as moot and unenforceable.

Although this may also challenge the validity of the Municipal Service Benefit Unit Ordinance 2010–04, it would not upset the DSC grant and CWSRF funding of the plan accepted by FDEP for the municipality of the City of Crystal River to expand their sewer system into three unincorporated areas of Citrus County designated in that plan approved by FDEP. FDEP have advised, that the criteria for the DSC grant and associated CWSRF loan rests with the municipality and not with any service area accepted by FDEP for application of those funds.

Moreover, the portion of the grant and loan funds allocated to pay for approved project costs for works within the public right of way are limited to direct costs actually incurred.

Note that no "Fort Island Trail corridor" nor for that matter any code–numbered areas appear in the plan accepted by FDEP for application of those funds. (The code numbers have served to keep knowledge of intentions from citizenry since their existence is denied by the Property Appraiser's office when inquiries as to their location have been made ). Part of Fort Island Trail is embraced within the area scheduled for year two of the plan but not included in the area for year three of the plan. (The County's GIS map dated 23 November, 2010 differs from the approved plan in that regard). The statement made at the 24 May 2011 meeting that the sewer should continue along Fort Island Trail to the Beach in context of the public funding could only express a personal desire.

F.S.381.00655 (2)(a) provides for the decision authority to rest with the local governing body of the jurisdiction in which the onsite sewage treatment and disposal systems reside, which is the County and not the City. The Crystal River Sewer Assessment document would appear to reflect payments to the City of Crystal River twice for the same thing. The City, having been paid out of Public grant and loan funds, demands also to be paid "Expansion Fees"(*) from the County's freeholder constituents, to the extent of some $1,452,200.00. The County is not empowered to aid and abet the City to indulge in any such unjust enrichment. (*This was also qualified by the City manager during conversation with Mrs Louise Allman during a meeting in his office to mean the works within the public right of way and specific enhancements for waste water treatment to accommodate the increased loading.)

At our meeting of August 4, I also mentioned the possibility of CDBG grant funds being made available to the County to pay the freeholder connection costs as suggested by FDEP. We need to keep that in mind as time quickly passes so that any new CDBG could coincide with the termination of the current CDBG approved under Agenda item D1–g. at the County Commission Meeting of June, 14, 2011. Bearing in mind that CDBG grants are awarded on a competitive basis and some matching funds for that purpose should be included in the 2012 Budget (as I petitioned the Board on 27 July, 2011, on behalf of the County's freeholder constituents affected by the Interlocal Agreement).

Two further issues remain to be decided by the County (it is suggested that vacant lots do not qualify as an AU and the duplex arrangements described qualify as a single AU):

• With regard to vacant lots, no rhyme nor reason for them to be targeted for assessment seems to exist; they have no need for any sewer service and enjoy no benefit from being connected and indeed cannot be connected until an occupied building can flush domestic sewage waste into the sewer connection. The spreadsheet sent to you following our meeting of 4 August, 2011, takes the omission of vacant lots into account.
• The landlord of a single level duplex building of about 2,000 square feet has a single OWTS installed connected to a single delivery pipe from the building serving the needs of both tenants as permitted by the County. This arrangement allows only a singe sewer system connection and would predicate only a single AU per building. Water bills from Ozello Water are rendered direct to the landlord.

We trust that this alternative view to that offered by the Interlocal Agreement will help to resolve the stress upon the freeholders and provide them some measure of recompense.

Sincerely, Norman Hopkins.
Director, the Amy H Remley Foundation
On behalf of the Freeholders affected by the said Interlocal Agreement.

Further to my e–mails to you on 18 and 19 August, 2011, I now need to bring the following to your notice.

1. The consensus of freeholder constituents comprised of a steering group deplores the confusing division of responsibility between City and County created by the Interlocal Agreement. Concerns range from responsibility for disfigurement of property to uncertainty of responsibility in the event of an emergency leakage and accountability for charges and rates to freeholders.

2. The remedy would appear to lay with clear separation of the responsibilities of City and County.

• The City should bear responsibility for the receipt and expenditure of DSC grant and CWSRF loan funds in order to enable and fulfill the construction required to execute the 1999, plan approved by the FDEP. Full accountability should rest with the City for all activity and service within the bounds of City limits and construction on the public right of way within County areas paid for by the funding provided to them under the auspices of FDEP.
• The County is the accountable authority for all activity within the areas administered by the County and not the City.

It follows that any agreement between the City and the County should be limited to the agreed conditions by which the County makes use of those sewer facilities for the purpose intended in the 1999, approved plan and what it pays to the City for the privilege of so doing. Accrual of charges by the County for the collection and disposal of domestic sewage enable the payment due from the County to be paid to the City for that service provided by the City. FDEP have suggested using CDBG grant funds to pay the connection charges and the attendant expenses of making those connections.

3. It remains for the County to decide what charges need to be collected from its freeholder constituents for any connection to the sewer line and for the collection and disposal of the domestic sewage arising on the properties concerned. Note that considerable economic advantage is enjoyed by the City from having the Crystal River/Kings Bay restored and made safe for recreation and as sanctuary for the protected manatee species. Of course, residents and visitors alike are attracted to benefit the County's institutions and facilities also.

Fair proportional maintenance charges for the use made by the County of the City's resources could be accrued along with the usage charges for collection and disposal of the domestic sewage.

4. The insurable risk of unforeseen leakage from sewer systems should be born by the City or the County according to the location of any such leakage and determined by such potential issues of design sufficiency, adequacy of maintenance, and system loading. Any isolated risk of leakage from a poorly maintained or under engineered OWTS installation is simply incomparable to the concentration of risk in a leakage of raw sewage from a sewer.

• The F.A.C. 62–604.400 gives a range of standards that could be permitted, for example, of a sewer's aerial crossing over flowing surface water destined to enter a protected water body such Kings Bay. Such issues which are not only of critical significance to the health and recovery of the County's coastal river systems, but also impact the well–being of property owners downstream from any leakage, and are exacerbated by the economic impact of such a potential disaster. Such considerations cannot be left to the interpretation of a contractor under pressure to make a least cost bid for business.

The County must exercise its over–arching responsibility to insist upon the highest protective standards possible for suspension and encasement of sewer pipes of such crossings.

5. A much more difficult task is to set standards which protect against contamination of the groundwater conduit pathways to the springs which sustain the coastal river systems. Leakage into such pathways can take a very long time before becoming apparent due to inherent transit times as opposed to visual observance of a water crossing leakage.

6. Two other areas of risk needful of effectiveness and appearance standards are: a. the sewer's connection to a building's plumbing or to effluent outlets from a septic tank, together with, b. water ingress of sewers by flood or by saturated land from persistent heavy rains (as advised by Tampa based FDEP staff).

Sincerely, Norman Hopkins.
Director, the Amy H Remley Foundation
On behalf of the Freeholders affected by the said Interlocal Agreement.

Thank you for your e-mail of 2 September 2011, which is much appreciated.

We have always sought to respect your position and not debate any legal issues with you. Our intention has been solely to research the facts, making use of our extensive experience to research and analyze environmental issues over the years and in so doing assist the affected freeholders as they have requested us to do.

The petition to the Commissioners submitted on the 27 July, 2011, was made at the request of the freeholders at a public meeting to give a heads up of a matter that had been raised in the local Press. An offer of matching funds could prove to be be prudent in a competitive situation in order for the County to secure a grant to ease the financial burden upon their constituents. This was seen as a helpful thing to do.

We are grateful that you were able to raise the matter that we discussed on 4 August 2011, with Administration, to ease the constituents' burden by spreading the payment of the assessment over the term of the DSC grant's Associated Loan WW58316S, provided for that express purpose by FDEP. That that petition has effectively been denied renders any inclusion in the budget agenda unwise at this time.

Incidentally, we have noted the fact that the fifth WHEREAS, of the Interlocal Agreement, fails to mention Associated Loan WW58316S which together with the grant provides funding for 100% of the system expansion and line laying construction related costs. WW58316S was first referred to in Subsection 8., in the first amendment to DSC grant SG583140 acknowledged by the City, in February 2003, and first quantified in the second amendment executed on 8 November 2004, The second amendment makes it abundantly clear in Subsection 1.01(8). that the "Project" ... was " financed by this Grant and Associated Loan WW58316S." Moreover, the copy of the Crystal River account spreadsheet SG583140/WW58316S DISBURSEMENT #12 dated 6/21/2011 leaves no room for any possible doubt.

I questioned the wording of the first sentence in the Crystal River Sewer Assessment documentation given to me at our July meeting during our meeting on 4 August, 2011. It began, "Based upon environmental testing performed in 1999, it was determined that installation of a wastewater collection and disposal system was necessary for the public health, safety and general welfare of the County and its citizens in the Fort Island Trail Corridor and other unincorporated area's of Citrus County bordering and/or in close proximity of the Crystal River and Kings Bay."

As that wording constituted a major premise of both the Interlocal Agreement and the MSBU Ordinance 2010–04 (WHEREAS means "It being a fact that") I asked to see a copy of the said environmental testing report. I was informed that it was not available at the County. I was later advised since then that some wording in that document package was supplied by the City of Crystal River .

When I had posed the same question of the City's Public Works Director in his office and was informed that the City could not produce any testing documentation nor a copy of the grant application, I had approached the FDEP and they supplied a complete set of documentation to me including the application submitted by the City in 1999, together with subsequent documentation. I showed the relevant pages at our meeting of 4 August 2011, and supplied a copy of an FDEP e–mail as requested to substantiate that FDEP made the Associate Loans, covering the 15%, for 20 years at a maximum rate of 2.55% per annum.

The documentation from FDEP revealed that no health hazard could have existed as professed in the application. Nor could any degradation of Crystal River or Kings Bay waters have been reversed by replacing a relative few septic systems alleged to leak when inundated, compared to the thousands of inland septic system drain fields injecting residual nitrate concentrations directly into the groundwater being discharged from the spring systems into those waters.

With benefit of hindsight and many weeks of diligent research it now would appear that the Board of County Commissioners may have had to decide issues related to both the Interlocal Agreement and the Ordinance 2010–04 on incomplete information, complicated by the lengthy passage of time and many incumbent changes at the City and the County since 1999.

Furthermore, during my research my attention was drawn to the words of Florida Attorney General, Robert A. Butterworth, in an Advisory Legal Opinion, AGO 90–75 Dated: September 11, 1990, on the current Attorney General's website.

AGO 90–75 avers that the Service must be "essential" or "vital" and the properties affected must derive a "special benefit".

I note the fact that the Crystal River Sewer Assessment document (above), in its third outcome of the public hearing conducted within the regularly scheduled BOCC meeting on December 7, 2010, pursuant to F.S. 197.2012, refers to the non–ad valorem assessments against the properties which specially benefited from the wastewater collection and disposal system ... (A phrase absent from both the Interlocal Agreement and the Ordinance 2010–04)

Observing that all the properties described in the Ordinance 2010–04 have septic systems duly specified, approved and permitted by the County, and inspected by the health department as such, that no essential or vital sewer service is needed to replace them. Nor can it be considered any special benefit to the properties concerned (nor to their owners) to have to benefit the City of Crystal River collectively to the tune of some $1.4million for the privilege of accepting the non–essential service offered to them.

I had requested FDEP to advise in regard to another matter whether they, as a state department, could refer to the Florida Attorney General's office. Their reply indicated that it would be for the County to make any reference required. In the circumstances it could be wise for the County to do that prior to the public hearing tentatively scheduled for July 2012, as indicated on the second page of the Crystal River Sewer Assessment package. That would clearly be for the County to decide.

Please let me know what action is proposed in response to this communication. I had thought it appropriate to ask for an agenda item to put the case to the Commissioners but it may be unnecessary should the Commissioners decide upon an equitable remedy without it.

I have had several discussions with the state DOH General Counsel and spoke to him yesterday with respect to this matter. The advice of the General Counsel was that so long as the availability of the sewer service is properly affirmed according to the statute, the mandatory connection has not been waived, and, after written demands have been served upon property owners that connection must be made then the 365 day connection period applies.

Whilst the advice the County has been given is correct as far as goes, as I have indicated the County and not the City is the authority in this case as determined by the local government jurisdiction within which the affected properties reside. (F.S. 381.00655 (2)(a)). Moreover, although the DOH may over ride waiver due to public health considerations, (F.S. 381.00655 (2)(b)) provides that mandatory connection to the sewage collection and disposal service may be waived if such connection is not required in the public interest.

There is no trace of any environmental testing having been done in 1999, either at the County or the City, and surely if it had it been conducted it would have featured in the case for Health Hazard submitted on July 22, 1999, as a part of the grant application - which it did not. It follows that the assertions that a central sewer system is required for public health reasons and claimed to be fact in both the Interlocal Agreement and the Ordinance 2010-04 simply cannot be considered factual.

What reason could there be why mandatory connection should not be waived as allowed by the law?

In a recent e-mail I commented upon the contribution to the City of some $1.4 million at the expense of the County's affected freeholders when the project was being financed 100% with public money. That calculation did not include any assessment payable on vacant lots. Adding only 135 vacant lot assessments to the figure raises it by $462,325.00 to more than $1.9million.

Each day I drive past the workers laying the sewer pipe along Fort Island Trail (in advance of its accepted planned date within area 114) and dwell on the utter absurdity of the apparent unjust enrichment of the City in the Interlocal Agreement with the City. I am caused to consider what other possible reasons there may be for the County to advocate it.

It is well known that the possible loss of the Plantation Inn as a flagship resort would harm the economic welfare of the County. It is perhaps less well known that talks have been held with the City with regard to making available the Lagoons 9-hole course, as a 46 acre site for development to encourage the owners of the resort to hang in for better times.(The Lagoons had been annexed into the City on 6.15.09 and registered as such on 7.28.2009).

When one looks at the record and the timing of annexation of the golf courses into the City a couple of weeks prior to enacting the Interlocal Agreement - so easy to do without a resident there to object. Then to witness the decision to annex the Plantation Inn into the City on June 13, 2011, after the very same meeting of the City Council had studiously ignored the earnest pleas of the County's freeholders, and decided to commission the contractor to begin laying sewer pipes even before funding had been assured. Could such courage have been backed by reliance upon the punitive assessment rates upon those same freeholders assured to the City courtesy of the County's signature on the Interlocal Agreement?

I trust that no such nefarious plot existed. Again, it is not for us to discus any legal issues but perhaps the question should be asked to clear the air.

Incidentally, seventy one of the freeholders chose that name for themselves at a meeting. in July, 2011.

With kind regards, Norman