TownCommissionShadeMeeting2 22 2021transcript

PERSSON, COHEN &MOONEY, P.A.
ATTORNEYS AND COUNSELORS AT LA\fl
David P. Persson**
Andrew LI. Cohen
Kelly M. Fernandez* Tclephone (9 4 l) 30647 30
Maggie D. Moouey" Facsirnile (9 4 l) 306.4832
R. David Jackson* Enrail: urtnooney@swflgovlaw.coul
Regina A. Kardash*
Lori M. Dorrnan
AndrewW. Mai
* Board Certified City, County and local Government Law Reply to; Lakewood Rancl-r
*" OfCounsel
March 5,7071
VI-A U.S. MAIL

Trish Shinkle, Town Clerk
Longboat Key Town Hall
501 Bay Isles Road
Longboat Key, FL 34778
Re: FDEP u. Town of Longboat Key, OGC File No. 20-1261
l)ear Trish:
Enclosed is the verbatim shade meeting transcript prepared by the courr reporter from the February
72, Z0Zl Hybrid Special Meeting regarding the above referenced. At the present time, the above referenced
litigation remains pending. lUhen all appeal periods have expired and the Consent Order is deemed final
the litigation will be concluded. Accordingly, the enclosed shade meeting transcript should remain under
seal and exempt from Florida's public records laws until the conclusion of this litigation. I will advise you
when the litigation is concluded.
If you have any questions, pleirse do not hesitate to c()T'ltact me.
Sincerely,
4't'la1fru /rJlhrnS
Maggie L-). Mooney
Signed electronically
lrz{DMr/ag
Enclosures
I-akewood Ranch Venice

6853 Energy Court 236 Pedro Street
I-akewood Rancl'r, Florida 34240 \enice, Florida 34285
1
Page 1
TOViN OE LONGBOAT KEY TOWN COMMISSION

Town Hall, 501 Bay Isl-es Road
Lonqboat Key, Elorida 34228
AGENDA
ATTORNEY-CL]ENT SESS]ON
SPECIAL MEET]NG (HYBRID)
FEBRUARY 22, 2021
2:00 P.M.
APPEAR;N{CES KENNETH SCHNE]ER, MAYOR
MIKE HAYCOCK, VICE MAYOR
JACK DALY, COMMISSIONER
ED ZUNZ, COMM]SSIONER
SHERRY DOMINICK, COMMISS]ONER

Appeared remotely via Zoom
GEORGE SPOLL,COMMISSIONER
BJ BISHOP, COMM]SSIONER
TOM HARMER, TOWN MANAGER
MAGGIE MOONEY, TOWN ATTORNEY

Appeared remotelY via Zoom
EDWARD STEINMEYER, ESQU]RE

JOHN EIVEASH, ESQU]RE
Steinmeyer Fiveash LLP
2282 Killearn Center Boulevard
Tallahassee, Elorida 32409
j 1 f G steinmeYerf iveash . com
eppeared remotely via Zoom as Iitigation
counsel on behalf of Town of Longboat
(Note:CopyofPowerPointpresentationattached)
800.282.8275
Vincent M. Lucente & Associates
Page 2
1 PROCEEDINGS
2 ITAYOR SCHNEIER: Today is February 22,
3 2027. The hybrid special meeting is called to
4 order at 2:00 p.m. for the purpose of hearing
tr
J the Town's legal counsel's request to hold a
6 hybrid attorney/client session that is provided
1 by Florida 1aw to obtain commission direction
B relating to a proposed consent order in the
9 administ.rative matt.er of The Florida Department
10 of Environmental Protection versus Town of
11 Longboat Key, OGC. file number 20-1261.
t2 Pursuant to section 286.0118, Florida
13 Statutes, the hybrid attorney/client sessi-on
L4 wif] convene immediately following the opening
15 of the hybrid speci-al meeting. There wifl be a
T5 separate login for the authorized participants
71 usi-ng Zoom for the attorney/client session.
1B The subject of the attorney/client session
79 shall be confined to topics so authorized by
20 the F1orida Statutes 2 8 6 . 011 . The Town Manager
2t wilf be provided an overview of the hybrid
22 meeting protocols.
23 ![R. IIARMER: Thank you, Mayor,
24 Commissioners.
25 As the commi_ssion is aware, we continue to
Vincent M. Lucente & Associates 800.282.8215

Paqe 3
1 operate under a national state and locaI state

2 of emergency. Even though that we are under a
3 declared emerqency as part of the phase three
4 opening of the Governor's executive order
5 sunset the flexibility of meeting form
6 requi-rements after Oct.ober 31 of this past
1 year.
8 Based on that action the Town shifted to
9 hybrid meeting formats to meet the safety forum
10 requirements.
11 The Town also passed a resolution,
72 2020-28, authoriz:nq hybrid meetings for the
13 commission and al-I the Town's advisory boards.
1.4 This hybrid format requires at least four
15 commissioners physically present in the Town
76 Commission chambers. The remaining commissions
I1 may participate virtuallY.
1B Eor a hybrid meeting we continue to
79 publish the agenda in advance at
20 www.longboatkey.org and include the public
2t inst.ructions f or a hybrid meeting.
22 This particular meeting has two
23 components; a public and a shade component'
24 AIl comments received or presented during the
25 public portion of the meeting wil-l become part
800 .282 .8215

Vincent. M. Lucente & Associates
Page 4
1 of the public record and continue to Zoom to

2 hold our public meetings. We will also live
)
J stream and can be viewed at
4 www.longboatkey.org, and include our closed
5 captioning. There's a slight delay on
6 streaming video to accommodate the closed
1 captioning.
B No forma1 action is required today for
9 these protocols as t.hey are consistent with the
10 resolution 2020-28 adopted by the commission on
11 November 2.
I2 Thank you.
13 MAYOR SCHNEIER: Thank you, Town Manager.
t4 I will now ask the Town Attorney, Maggie
15 Mooney-Portale, for some instructj-ons about our
I6 client/session.
I1 MS. MOONEY: Good afternoon,
1B commissioners.
79 Once again, the purpose of today's meeting
20 is to convene in a stage meeting in the pending
27 matt.er of Fforida DEP versus Town of Longboat
22 Key OGC file number 20- 126L.
23 You will
be discussing matters that are
24 permitted under Florida Statutes 285.011.
atr
I appreciat.e the commission agreeing to

Page 5
1 hold a hybrid attorney/client session as

2 requested.
3 T.{AYOR SCHNEIER: ThANK YOur MAggiC.
4 May I have a motion to approve legal
5 counse.I's request to hold a hybrid
6 attorney/client session pursuant to section
1 286.0118 Florida Statutes.
B COMMISSIONER ZVNZ: So moved. 1 .
9 COMMISSIONER DALY: Moved.

10 MAYOR SCHNEIER: So moved and seconded to
11 approve the request to hold a hybrid
t2 attorney/client session.
13 Are there any comments?
74 Seeing none, will the clerk call the role?
15 THE CLERK: Vice Mayor Haycock?
I6 COMMISSIONER HAYCOCK: Here.
71 THE CLERK: Commi-ssioner SpolI?
1B COMMISSIONER SPOLL: Here .
79 THE CLERK: Commissioner DaIy?
20 COMMISSIONER DAIY: Here .
2t THE CLERK: Commissioner Zunz?

22 COMMISSIONER Zt NZ: Here.
23 THE CLERK: Commissioner Bishop?
24 COMMISSfONER BISHOP: Here.
25 THE CLERK: Commissioner Dominick?

Page 5
1 COMMISSIONER DOMINfCK: Here.

2 THE CLERK: Mayor Schneier?
3 IITAYOR SCHNEIER: HCTC.
4 Mot j-on passes.

5 The subject of the meeting shall be
6 confined to the topics allowed by Florida
1 Statutes. It is anticipated the session will
B Iast approximately one to two hours.
9 Those who will attend the attorney/client
10 session shal-l be limited to the following
11 individuaf s: Kenneth Schneier, Mayor,' Ken
12 Haycock, Vice Mayor; Commissioners Sherry
13 Dominick,' George SpolI; Jack Daly; Ed Zunz;
t4 B.J. Bishop; Town Manaqer, Tom Harmer; Town
15 Att.orney, Maggie Mooney; Assistant. Town
16 Attorney David Jackson; and litigation counsel

71 from the law firm Steinmeyer Eiveash/ LLP, Ed
1B Steinmeyer and John Fiveash.

79 A physical quorum of the Town Commission
20 will be physicalJ-y present in the Town
2t Commission chambers during the shade meeting.

22 The Town Manager and a certified court reporter
23 will afso be physically present in the Town
24 Commission chambers. Two or more memloers of

25 the Town Commission and the Town's J-ega1

Page 1
1 counsel- willbe appearing via Zoom. A

2 transcript of the hybri-d attorney/cLient
3 session will be made or will become availabl-e
4 as a public record upon conclusion of the
5 Iitigati-on.
6 At. the conclusion of t.he attorney/client
1 sessj-on this hybrid special meeting will be
8 reconvened for the public in the commission
9 chambers and resume virtual participation in
10 the public meeting.
11 Any formal Town Commission action that is
l2 necessitated by the attorney/client session
13 will be taken during the public portion of the
L4 hybrid special meeting to fol-Iow this shade
1tr
IJ meeting.
t6 It is 2206 p.m. And we will recess to
71 allow the participants using Zoom to login to
1B the hybrid attorney/ client session.
L9 (Recess. )
20 II{AYOR SCHNEIER: If I recal-l correctly

27 from the last shade meeting we had on the
22 subject, Maggie led us off . But I think sj-nce
23 I see everyone's pictures and who is in-person,
24 f can call and recognize people to speak, if
25 t.hat makes sense.

Page B
1 MS. MOONEY: That. would be great.

2 IIIAYOR SCHNEIER: Do you want to start us
3 off, Maggie?
4 MS. MOONEY: Yes, sir.
5 Just to confirm t hat there is no)oody else
6 in the room other than the members of the
1 commissj-on and the Town Manager before I get
B started, and the court reporter excuse me.
9 MAYOR SCHNEIER: That's correct.
10 MS. MOONEY: Okay.
11 Thank you commissioners for accepting and
72 grantj-ng the shade meeting today to consider
13 the consent order in the action lnitiated by
l4 the in case number 20-126I.
DEP
15 A few prefi-minaries before we get started,
t6 ;ust to remind everybody that all-
71 communications that occur in these shade
1B proceedlngs are attorney/client privileged
19 communications. There should be nobody else
20 appearing by Zoom in the room with you during
2t the course of this shade meeting.
22 A1l dialogue that occurs within this shade
') ')
meeti-ng will be transcribed by the court
z4 reporter who is physical-ly present at Town HaIl
25 and wil-l- be making a verbatim record of al-I

Page 9
1 dialogue that occurs relative t.o the consent

2 order.
3 For that reason, to the extent the Mayor
4 can help facifitate individuals speaking one at
tr
J a time, I'ffi sure that wilf be appreciated by
6 the court reporter, who cannot take down
1 multiple people talking over one anot.her.
8 There willbe a power point that will be
9 presented to the Town Commission in the course
10 of this shade meeting, a copy of which I'm
11 requesting the Town Manager provide to the
72 court reporter for incl-usion in the record.
13 Beyond that, by statute we are limited to
74 the topics of today's discussion. We can only
15 discuss settl-ement negotiat.ions and strategy
76 with respect to this shade proceedlng.
l1 So to the extent anybody veers off of that
1B subject. matter, please don't t.ake offense if we
19 try to reign fol-ks back in to just the l-imited
20 matt.ers that we can speak of today based upon
27 this pending lit.igation.
22 With that said, I'd like to hand over to,
23 Mr. , Lf you agree and if the commiss j-on
Mayor
24 agrees, to our environmental counsel to present
25 the power point that lays out. the most current
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Page 10
1 version of consent order that we have received
2 from the DEP.
3 I.{AYOR SCHNEIER: Please do.
4 MR. STEfNMEYER: Thank you Mayor, members
5 of the commission.
6 And Maggie, I'm goi-ng to try and share my
1 screen again. It looks like it's not going to
8 Iet me do that.
9 MS. MOONEY: I wiII do it.
10 MR. STEINMEYER: Okay. Thank you.
11 MS. MOONEY: Let me know if it's up and
L2 sharing.
13 ldR. STEINMEYER: f L's up. okay.
t4 The cover slide is showing now and we can
15 move to the first sfide.
I6 Essentially we're going to f ol-low the same
1.1 format that we followed i-n the prior meeting of
1B January 5 to discuss the consent order.
t9 We have negotiated, continued to negotiate
20 with the department as per the commission's
2t direction from the prior shade meeting. We
22 as you may recaIl, we had some significant
23 issues that we brought to your attention for
24 topics we had addressed and received direction
atr
LJ from you about
Vincent M. Lucente & Associates 800 . 2 82 -821 5

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1 COMMISSIONER SPOLL: Can I ask You to

2 speak up, please?
3 MR. STEINMEYER: Yes, sir.
4 So we're primarily going to focus on these
5 significant issues that we discussed at the
6 last meeting. There were some other relatively
1 minor changes. I think really the only other
8 changes have to do with extending the deadline
9 for us to provide a report.
10 We will refresh your memory of what the
11 issues were, we'll talk about the changres that
72 we were able to initiate with the DEP on those
.t_ J issues, and then we'1I tal-k about the options
l4 groing f orward with regard to this.
15 COMMISSIONER SPOLL: Your voice keeps
76 fading away. ft's important that we aII be
71 able to hear. Please, speak up.

1B !4R. STEINMEYER: Yes , s ir . I 'm speaking
t9 directly into the microphone on my computer.
20 COMMISSIONER SPOLL: Every sentence tends
2t to trail off into nothing. Thank you.

22 MR. STEINMEYER: The significant issues
)? that we discussed in our last meeting, ds we
24 mentioned, there were four primary issues that
25 we di-scussed with the commission and that we

Page 12
1 continued to negotiate with the department.
2 The first was the requirement in the
3 consent order where the DEP was asking the
4 commlssion to essentially develop a plan that
5 would either construct a redundant line or some
6 other mechanism to transfer the wastewater to
1 the Manatee County facility.
8 The second issue had to do with the
9 penalty assessment.s that the DEP has made for
10 the activities outlined in the consent order,
11 the issues being that those penalties were tied
72 to activities within the existing utility
13 easement, and they were also assessed at the
I4 high end of the DEP's penalty range matrix,
15 which we did not think was appropriate.
L6 The third issue, primary issue was that
T1 the DEP had required the Town to prepare what's
1B cal1ed a CMOM plan, which is an extremely
t9 detailed, Iengthy operation and management plan
20 that is essentially based on the federal EPA
2t guidelines, and they wanted the Town to not
22 only prepare that plan but they wanted to make
23 the elements an enforceabl-e requirement under
24 the consent order.
Z3 And the final issue, significant issue was

Page 13
1 that the department had placed restrictions

2 wi-thin the consent order on the Town's use of
3 bonded funds that had been raised for
4 operations and maintenance of the sewer system.
q
They were putting some constraints on whether
6 the Town could use certain funds for certaln
1 things required i-n the consent order.
8 Those were the primary issues that. we had
9 ident.ified and that. we discussed wlth t.he
10 commission last meeting and that you had given
11 us direction to negotiate furt.her.
12 So Maggie, if you can pull up the next
13 slide, please. The next slide restates the
74 issues that we just went over and we presented
15 a sort of before-and-after format.
76 As I mentioned, the i-ssue one was the
l1 requirement to essentially build a redundant
1B pipellne or some other similar method. And
t9 that was essentially ranked as the commission's
20 priority item, however, out of these four
2t issues.
22 And we were able to negotiate with the
23 department to remove that as a specific
24 requirement from the consent order. And
25 instead what was required 1s that the Town

Page 14
1 Commissj-onessentially just develop a plan that
2 sets forth short-term and long-term actions
3 that the Town wiII take to ensure that there is
4 not another l-eak in the system and that
5 eventually, you know, through whatever means
6 and mechanisms the Town is able to ensure the
'7
safe transmissi-on of wastewater to the Manatee
B County facility.
9 That redundant line was not required in
10 this version. It gives the Town a little more
11 flexibility in terms of what the Town will do
72 both in the short term to address things and in
13 the long term, whether itrs pipe replacement or
74 new l-ine construction or something else.
1tr
.LJ I'm happy to take questions on these as
L6 they come up or we can go through them all- and
T1 we can save the questions for the end, whatever
1B you prefer.
79 MAYOR SCHNEIER: lr' r'l
why don't we
20 entertain questions issue by i s sue, if you

27 don't mlnd, and then we can pick up whatever is
22 left at the end of all four.
23 !4R. STEINMEYER: That wiII be f ine.
24 }IAYOR SCHNEIER:Yes, Vice Mayor Haycock.
25 COMMISSIONER HAYCOCK: Tom, can you kind

Page 15
1 of describe what you think this will look like?

2 So what will the plan entail, and how long will
3 it take, and how much will it cost us?
4 MR. IIARII{ER: So I think putting the plan
5 together is probably, I don't want to say the
6 easy part, but probably the feast expensive
1 part j-s putting the plan together.
o
We woul-d have some outside third-party
9 assistance to do that. The st.ate and the
10 consent orders have asked for both a short-term
11 and long-term plan. I would envision that the
l2 short-term plan would include a reassessment of
13 the pipe so that we coul-d use the latest
t4 technology to determine the conditj-on of the
15 pipe.
l6 And then part of based on that assessment,
l1 part of the follow-up then would be to take any
1B corrective act.ion necessary to address any
79 deficiencies that were identified.
20 We're trying not to specifically calI out
27 in the plan that we're going to install
22 redundant pipe or not. We're trying to focus
Z3 it more on what they wrote in the plan is, you
24 know, the safe t.ransmissi-on of wastewater
25 effluent. Because we have to be able to prove
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Page 16
1 to them that we can safely transmit effluent to
2 the mainland.
3 And so the assessment is the first biq
4 step. And once we have thatr we then wil-l- be
5 able to, out of that, develop the follow-up
6 steps for short term and long term. It may
'7
incl-ude some language in there about developing
B final plan for permitting for redundant pipe
9 for a long-term solution, but we're trying to
10 be careful about how we put that in a plan so
11 it doesn't become part of the enforceable
1,2 order.
13 COMMTSSIONER IIAYCOCK: The pipe
t4 reassessment, do you see us doing that in the
15 next si-x months?
I6 MR. HARMER: Yes, I think we would try and
77 do it as soon as possible. And the exact. time
1B frame we'd have to work out. with a consultant.
t9 We are talking to engr-neerr-ng firms now.
20 And there's been changes in technology
2l since it's been l-ast assessed, so we want to
22 flush out the most appropriate way to assess
23 the existing pipe.
24 COMMISSIONER IIAYCOCK: OkaY .
atr
ZJ And then when we were reviewing it, we

Paqe 71
1 talked about having a kind of an our

2 meter/their meter type thing between us and
J Manatee Countyr so if there's any discrepancy
4 above a certain amount, you know, 24-hours a
5 day we would know somethi-ng's going on.
6 Would that be a part of this?
1 MR. IIARMER: Yes, part of the short-term
B solution.
9 And we're working with Manatee Count.y now
10 with some additional gauges that would be on
11 t-he mainland side that would have an ability to
72 immediately report both the Town and the county
13 of any variations, even outside of the
t4 treatment part.
15 So that would be, I would anticipate, part
76 of the short-term actions to help explain to
71 the State what we're doing to make sure we have
18 safe transmittal of effluent.
79 COMMISSIONER HAYCOCK: Okay.
20 MAYOR SCHNEIER: Commissioner Da1y.
27 DALY: With respect to the
COMMISSIONER
22 current after plan, is there any thought, Tom,
23 with respect to any activities we might ask of
24 the county, Manatee County, to participate in?
25 MR. HARMER: From a I think we haven't

Page 18
1 flushed those out, if there are. They have
2 been cooperating with us on the insta1lation of
3 additional gauges.
4 They're doing a construction project over
tr
J there now and exposing the pipe that leads into
6 the treatment plant. And as part of that,
1 we're working with them to install some
8 additional gauges and they've been cooperative.

o
That's as far as we have gone so far.
10 Ir{AYOR SCHNEIER: And f I ll Sdy, Jack, I tve
11 had meetings in person with two Manatee County
72 commissioners over the fast couple weeks, and
13 in both of them Irve explained the situation,
I4 to the extent they weren't aware of it, and the
15 time differences and the gauge issues and
76 correspondence between
71 COMMISSIONER DALY: Yeah, that's where I
1B was coming from.
t9 MAYOR SCHNEIER: and I suggested that
20 we might be looking to ask them for some
27 contrj-bution , dL least for the sof t costs that
22 we have experienced and intend to experience in
23 resolving this matter.
24 Both have said they would consider it and
25 they didn't back off entirely on that.

Page 1,9
1 We needto figure out how exactly to move

2 forward on that f ront. I don't know whet.her
3 that's appropriate for this meeting or whether
4 we need to do it. in a separate session, but
5 theyrre primed to hear from us more about this.
6 COMMISSIONER DA],Y: GOOd. Thank you.
1 IIfAYOR just say, I
SCHNEIER: And I I ll
8 can't really see Sherry or B.J very welf on my
o
screen, Lf at a1I, so if you have questions or
10 comments, you may need to all right, now I
11 can see you. If you have your hand up and you
72 are not. being cal-l-ed just say somethi-ng.
onr
13 Commissioner Bishop, I see you hand now.
l4 Vaa
15 COMMISSIONER BISHOP: I was just testing

15 to see if you can see my hand up. But woul-d it
l1 be helpful for everyone, if you are not
1B talking, to please mute, because I'm getting a
79 Iot of feedback from people drinking and
20 chewing and papers swishing. So if people
27 aren't talking, very helpful if they're
it's
22 muted because with all of you in the same room
23 we're getting a lot of feedback.
24 IIAYOR SCHNEIER: Okay .
Z) Are there any other comments or questions
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1 on issue number one?
2 Tr-t
I ask one question of Ed. And that is
II
l
3 what we have here is not a mandate but

4 basically an agreement to agree.
5 And my question is if we don't reach
6 agreement on the plan going forward with FDEP,
7 what wiIl be the consequences?

8 MR STEINMEYER: Weff, and I expect there
9 wiII be some back and forth. And we'l-1 talk
10 about that in regard to some of these other
11 requirements in a minute.
l2 But essentially what we have built in the
13 consent order is a little bit of back and forth
t4 where the Town prepares a plan and submits it
15 to DEP, receives comments from the DEP, and
15 then resubmits the plan, presumably addressing
l1 the comments.
1B I expect there will be a little bit of
I9 back and forth, probably not as much as we have
20 had on the consent order, but some. But if we
27 are unable to agree or refuse to agree, then

22 the DEP can treat that as a violation of the
23 consent order and essentially enforce the terms
24 of the consent order and enforce the t.erms of
,\ the cont.ract.

Page 2I
1 IIAYOR SCHNEIER: OkaY. Thank You.
2 Commissioner Bishop. B.J. your hand is
3 up. Did you have a comment or is this the o1d
4 hand?
tr
J COMMISSIONER BISHOP: SorrY.
6 Ed, it's my understanding that we were on
1 a pretty tight timeline that we were meeting
B today and that you, in fact, we needed to have
9 some concurrence from the commission today
10 because we were at a deadline.
11 Is that not a fact?
t2 MR. STEINMEYER: That is correct,
13 commissi-oner. We had an extension of time
t4 essentially until today to execute the consent
15 order.
76 And the DEP has been informed that. this
l1 commission is meeting today to consider it.
1B And so we have to notify the department of the
t9 decision of the commission today. And this is,
20 accordi-ng to the department, the last day we
27 have to accept the order and we have been told
22 there wiII be no more extensions.
Z3 COMMISSIONER BISHOP: AII right.
24 So this is fish or cut bait day?
25 !4R. STEINMEYER: Correct.
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1 COMMISSIONER BISHOP: Okay.
2 }IAYOR SCHNEIER: AII right.
3 I see no more hands raised.
4 Ed, if you want to move on to issue two.
E
J MR. STEINMEYER: Yes, sir.
6 Just a short comment on issue one. We
1 felt like that being a priority of the Town
8 Commission, that that was an acceptable
9 resofution of the concerns the commission had
10 with that provision, and we think that
11 certainly a reasonable requirement that we
72 would explain to the department how we were
13 going to planning to go about addressing
I4 this leak and hopefully ensuring that nothing
15 Iike it happens again.
76 ldR. IIARMER: Mayor, can I jump in?
71 IIAYOR SCHNEIER: Of course.
1B !{R. ITARMER: Just t.o add to your comment,
79 especially about the back and forth that we
20 anticipate.
2l The consent order in that section provides
22 for 90 days for the Town to develop a
23 corrective action plan that we would then
24 submit to them for review. So that's where I
25 think the back and forth will start.

Page 23
1 Upon execution of thisr we have 90 days to
2 submit a corrective action plan that will
3 address the short-term and long-term safety and
4 reliabili-ty of the pipe.
5 ITAYOR SCHNEIER: I guess before leaving
6 number one I will ask if any commissioner

1 disagrees with our accepting the proposal
o
U resolution of issue number one?
9 Let's move ahead to number two.
10 MR. STEINMEYER: OkaY.
11 To briefly recap number two, the
72 department had initially included the Town's
13 easement area up on easement area in the
l4 calculation of the impacts for purposes of
15 assessi-ng the penalties in the consent order.
l5 And after negotiation, the department has
t1 basically told us that, flo, your penalty does
18 not include impacts that occurred within the
19 easement. However, because of t.he destruction
20 of mangroves and the bringing in of fitl
2L materials to create the road to access the
22 worksite, that the mediation activities were
23 going to have to also occur within the
.A
easements.
25 So while the penalty is not cal-culated

Page 24
1 based on the impacts within the easement, the
La DEP is still requiring mitigation both in terms
3 of the replanting and in terms of mitigation
4 bank credit purchase to offset the resource
5 impacts within t.he easement area.
6 And the department also, our meeting after
'7
the l-ast. Town Commission meeti.g, had sent one
o
of their people out to revisit the site and do
9 another inspection. And they determined that
10 at that time that there was additional die-off
11 of mangroves above and beyond what had
t2 initially been impacted by the contractor
13 accessing the property to fix the leak.
74 And so we had to the restoration and
15 mitigation portion of the consent order was
t6 changed somewhat because we don't have those
71 additional impacts quantified at this time.
1B So this provision has morphed into a set
79 number of set acreage and a set requirement for
20 mitigation to a requirement that the Town go
27 out and reassess the area and determine the
22 ful1 extent of the impact, whether it was
23 direct f rom the l-eak repair or whether it's
24 indirect from the effect of the wastewater on
25 the surrounding mangroves.

Page 25
1 And once that, once all of those effects
2 are assessed, then the Town is going to be
)
J required to prepare an analysis that loasically
4 indicates what type and the number of
5 mitigation credits that wiII be necessary to
b offset those impacts.
1 So we cannot. give you exact numbers of
8 what those will be until the assessment is
9 performed according t.o the
10 ITTAYOR SCHNEIER: Questions? Vice Mayor
11 Haycock.
72 COMMISSIONER IIAYCOCK: Yes .
13 Included in our packet was the technical

l4 memorandum from ESA. And in there, I think,
15 was an analysis I assume based on the best
t6 evidence they have on how many mitigation
l1 credits might be required. They came up with a
1B fairly elaborate ca.l-cu.l-ation that then resulted

79 in L.4.
20 Is that where we think we're at now based
27 on
22 MR. STEINMEYER : YE S , sl-r excuse tTI€ r
23 I'm sorry. Go ahead.

24 COMMISSIONER HAYCOCK: No, I was j ust
25 saying it looks like is that based on where we

Page 26
1 think we I re at now, which also included, if you
2 looked at the pi-ctures, some of the damage that
)
J was done in the surrounding area?
4 MR. STEINMEYER: Yes, sir, that's our best
5 indication right now. That analysis was
Ct performed, I believe, back in August, Augrust
1 time frame.
B And so we definitely want to reassess
9 that. We want to have the consuftant an
10 terms of it may have appeared stressed at the
11 time, mdy have recovered once there was some
72 natural flushing and once t.he nutrient.s from
13 the wastewater and that kind of thing.
t4 We're hoping that things will slightly improve
15 out there.
t6 They alsor ds part. of this analysis, will
71 be looking at some soif _r-ssues to determine
1B whether those impacts were can be tied to
19 the wastewater Ieak or whether there was maybe
20 something else that may have either caused or
27 contributed to those impacts.
ZZ But the short answer is that that exhibit,
.)2
that report from ESA is probably you know,
24 it's golng to be fairly close to what we end up
25 with.

Page 21
1 COMMISSIONER HAYCOCK: And that -11 that
2 they calculated, is that the same number that
)
J the FDEP quoted as .54, I think, or are they
4 both referring to the same thing?
5 MR. STEINMEYER: I think they're referring
6 to two different things.
1 The DEP was primarily looking at the
8 direct impacts with the .54.
9 And then sor you know, this wiII be a
10 process similar to the plan we just discussed
11 where the Town's consultants prepared this
t2 report., submit it to the department, and then
13 there will be a lit.tle bit of back and forth in
t4 terms of the values and the numbers and things.
15 COMMISSIONER HAYCOCK: And okay. But
76 what is the 7.4 mitigation credits, how much
l1 does that. cost us?
1B MR. STEINMEYER: The last time we looked
19 into that, credits were about, dS I recall,
20 $300, 000 a credit.
2t MR. HARMER: I think what I recaIl, Ed, is
22 about $f 00,000 for .3. So ye S, pretty cl-ose to
.) ')
LJ about 300,000 for a fuII credit.
24 The .3 is originally identifled, we were
atr told the market rate at that time was about

Paqe 28
1 100,000.
2 COMMISSIONER IIAYCOCK: So we are at
3 $450,000.
4 MR. HARMER: We don't know what the credit
5 amount will be until we do the updated UMAM.
6 COMMISSIONER HAYCOCK: Right .

1 MAYOR SCHNEIER: Commissioner Dominick,
8 did you have your hand up?
9 COMMISSIONER DOMTNICK: Yes. For some
10 reason, I l-ost my hand.
11 I have a question as to whether or not the
l2 amount of credits that we may have to purchase
13 and the overal-l plan itself could be effected
74 by an analysis that perhaps concludes that we
15 need to remove the pipes from underneath the
76 mang.roves period.
71 And that sort of hits home to when I
1B was our sprinkler system had to be repaired
t9 significantly because roots were growing into
20 it. So my analogy, it seems to fr€, you can
2t have issues with having piping under mangroves
22 with the root systems of mangroves.
23 So if the analysis as it progresses says
24 that reaches t.he conclusion that. we
shouldn't be having pipes under the mangroves

Page 29
1 any longer and we need to remove the pipes and
2 re-root things, wiJ-l that that obviously
)
J could effect the plan but wiII that also
4 effect our restoration of the mangrove
tr
J requirements and any potential credits we would
6 have to purchase?
1 MR. STEINMEYER: The analysis that we'.1-l-
B be requi-red to do here wiII not necessarily

9 take j-nto account those future potential
10 activities.
11 This analysis is simply what impact is
72 there right now to the resource, whether that's
13 at wetland or a mangrove tree. And then it's
L4 essentially offsetting the national value of
15 that.
16 discussions about, You know,
We have had
L1 what if we decide to conduct or construct a
1B redundant line in this same road? It doesn't
L9 make sense to have to replant and then we come
20 in and dig it all up again.
27 The department has acknowledged that. We
22 had tried to get additional clarification of
23 that issue, and aII that we have gotten back
24 from the department is we have to prepare a
25 replanting plan. The replanting plan has to

Page 30
1 include the easement area. And after we
2 approve the replanting plan, then you have to
3 replant.
4 Now, we have an overall deadl-ine to
5 complete the activities under the consent order
6 of five years. There are specific deadlines
1 within the consent order in terms of overall.
I We have to have everything going within five
9 years.
10 And we tried to get the department to sdy,
11 you know, as long you plant within five years
72 then you don't have to replant. right away. And
13 for some bizarre reason, they have refused to
L4 clari-f y that with us. But I think at this
15 point that is a reasonable interpretation of
t6 t.he language within the consent order.
71 And if we push them to clarify, they might
1B very well make it very clear that we have to
79 replant immediately. If we don't push them to
20 clarify, then we at least still have the
27 arg'ument that we lust have to do it within five
22 years.
Z3 So that is what we are faced with in terms
24 of what, how much, and when do we have to
25 replant, and where.

Page 31
1 ITAYOR SCHNEIER: Commissioner Spoll .
2 SPOLL: Commissioner Dominick

COMMISSIONER
3 led us in an area that counsel was just tryinq
4 to clarify.
5 That's the area that I find most idiotic
6 in this proposal. And I'm very reluctant. to
1 rely upon the fact that they refuse to give us
8 a clarification and then we then have an
9 argument, since it's that we can then argue
10 Iater.
11 What is obvious to me is the fact that we
L2 were warned a long time ago that we should

13 consider a redundant pipeline and replacing the
74 section on shore that is now in question.
15 And it is simply unacceptable in my view
76 that we be placed in limbo land when during
1.1 that five-year period, or any agreed upon
1B period, when we go ahead and replace or build a
79 parallel pipeli-ne that we have to double

20 repair, only rip up what we have been forced
z)- artificially to repair in the interim.
22 That's an idiotic position and we ought t.o
23 press t.hat very hard.

24 MR. STEINMEYER: f understand
25 commissioner. And, you know, we'11 be happy to

Paqe 32
1 take direction from the commission on that and
2 address it how you see fit.
3 COI.4MISSIONER SPOT,L: I rea11y am
4 uncomfortable with your position that you are
q
willing to leave it in this vague state so that
6 we at least have an argument.
1 It sounds like we have more legal costs
8 coming instead of a reasonable sensible
9 solut.ion, which 1s the obvious.
10 The obvious is that in our best interest
11 we should put in a parallel pipeline or replace
L2 the existing one.
13 And therefore we should take advantage of
74 the time to finish planting and do it and only
15 do the mitigation one time. It is patently
76 insane to take the route of fixing it and then
I1 tearing it up again.
18 And it's not fai-r to our citizens to be
I9 required to do that. And if we have people in
20 the DEP, maybe we have to go to the legislature
2l as we did when we fought with them over
22 mangroves on this island.
23 MR. STEINMEYER: And understood. And we
24 have pushed that point with them. I had agreed

25 with that point early on and we pushed them
Vlncent M. Lucente & Associates 800 -282 -821s

Page 33
1 several- times to clarify. And the response
2 that we got was we will be making no
3 further edits to the and you either accept
4 it or reject it on the 21Lh.
5 COMMISSIONER SPOLL: Wel1, both sides can
6 play hardball-.
1 MR. STEINMEYER: My only point is that
o
O we i-f we do demand they clarify it, we'l-l
9 either get a clarification that says you have
10 to replant immediately, or we'II get a
11 clarification that. says you can replant any
72 time within the five years.
13 And I think that's essentj-al1y where we
74 will end up anyway if we just go through the
15 process.
I6 COMMISSIONER SPOLL: I think we can soften
71 that argument by committing ourselves to the
1B due diligence and try to assure them in
19 whatever way we can that we not only will-
20 consider replacing the line and take advantage
21 of the five years, that we will- move wit.h all
22 due diligence to replace the line quickly,
23 which has to be done anyway. So that we ought
.A
to be mounting t.hat defense and that. of fense.
,tr And quite frankly, that's the way I feel

Paqe 34
1 very, very strongly. That position you are
2 willing to accept is very weak.
J
) IIAYOR SCHNEIER: May I -- if I mlght
4 interject and just ask Ed these questions,
5 these procedural questions really.
6 I guess we face this , Lf we don't sign
1 this order or decide to sign it today, then
B we're going to be in litigation with the
9 department over these issues.
10 If we do sign this today, then the
11 questions that Commissioner Spoll is raising
l2 about what we do and I would suspect that
13 when we propose the plan that it's going to
I4 cover all these areas; what we propose to do,
15 when, how we propose to deal with actual
t6 mitigation efforts, pJ-anting and whatever and
L1 when.
1B And as we were discussing earlier, Lf we
t9 were unab1e to reach agreement on those issues

20 with the department, then we wifl be in
27 litigation at that point.
22 But if we are able to reach agreement with
23 them on these issues strenuously pressed by the
2.4 Town, then we wifl be able to avoid litigation
25 all together.

Page 35
1 Am I understanding your Position
2 correctly?
4 !!,AYOR SCHNEIER: George, where does
5 what is your feeling about this then? I mean,
6 what are you saying we should do today?

1 COMMISSIONER SPOLT: My own action is that
8 we ought to get down to the end of this, and
9 then at the very end, that point. that is the
10 only point that. is an obviously idiotic point,
11 from a human sensible point of view, that we
t2 ought to agree that we are ready to sign,
13 provided that.
I4 And I think we ought to bounce the ball
15 back in their court from that issue. If they
16 want to sdy, okay, we're not going to accept.
71 your insisLence on our allowing you to litigate
18 only once, maybe we have to fight, because that
79 is an extremely expensive thing.
20 The second litigation wiII require al-l
2t sorts of things, including potential more
22 credits. So it's that's a can of worms.
23 And on top of that, we have another issue
24 with the owner, and that ought to be di scussed,
25 as well. There's an issue that Tom and I have

Page 36
1 discussed that
2 MS. MOONEY: Commissioner SpoII, we are
3 not i-n J-itigation with the owner and
4 COMMISSIONER SPOLL: I understand. Okay.
5 Got it.
6 MS. MOONEY: Thank you.
1 IIAYOR SCHNEIER: Vice Mayor Haycock.
B COMMISSIONER IIAYCOCK: I guess I'm in a
9 littl-e different place than George is.

10 f'm not ready to put a redundant pipe in
11 until we get our new study done. Maybe the
1,2 study comes back and says we have ten years.
13 And I don't think it's the best interest of the
74 taxpayers to spend that much money early if we
15 don't have t.o.

16 So we have a plan that says we're going to
77 do a study. You are going to come back with a
1B recommendation on when we should put in the new

19 pipeline. And before that point in time, I
20 don't think we should assume we're going to
27 do you know, we're going to go ahead with
22 the redundant pipeline soon.
23 The second point is the restoration cost
24 is the minor cost in this whole thing. If I
25 understand it right, based on this one report

Page 31
1 they're talking about for aII the things; the
2 road hauf, removal and regrading, the mangrove
3 planning, the project managiement, the
4 monitoring for five years, that's $f00,000 You
5 know, every bucket of money we got is five
6 times more than that, you know r or fine, ox the
1 mitigation credits, the studies that we're
8 doing, the attorney's fees, etcetera.
9 So, you know, if we have to Plant some
10 mangroves, and then come back five years later
11 and dig them up, it's not the end of the world
t2 to me. And if I was DEP, franklY, I'd be
13 telting you to go fix the area that you tore up
l4 and I wouldn't be sati-sf ied having that area

15 bare for five years. So I'm a little bit
76 COMMISSIONER SPOLL: MaY I just Ird
1.1 just like verificat.ion of your dollars and
18 cents amount, because you make a good point.
19 Is that really the true costs?
20 COMMISSIONER HAYCOCK: WeI1, in the ESA
21 report, George, that was part of the
22 prereading. If you go back they have a table,
23 table three, and it has restoration costs.
Z4 Now, I don't know how that overlaps with
,( the mitigation credit, Lf those are tied

Page 38
1 together or if those are separate or not, but,
2 you know, the
3 COMMISSIONER SPOLL: I'd like
4 clarification in that area so that your point,
5 Lf, in fact, your point is it is only 100, I
6 might change my mind. But it's the grand cost
1 of the associated cost that I'm concerned
8 about.
9 COMMISSIONER HAYCOCK:Yeah. So are they
10 tied together? Can someone explaln how that
11 work.s?
t2 MR. HARMER: So Ed, you can correct me as
13 we go along,, but the mitigationcredit wil-l- be
t4 determined by that UMAM study they want us to
15 do, and based on the dieback and the current
76 status, there will be some score that comes out
71 of that. And that wil-l somehow relate to a
1B credi-t amount t.hat we wiII have to purchase.

l9 The restoration plan is a separate
20 requirement in the consent order from that,
2t that we then have to develop a restoration plan
22 and submit it to them for revi-ew after we
23 survey and do soil testing.
24 And once they approve that restoration
25 plan, which we have the ability to submit I

Page 39
1 think this is where Ed was going we have the
2 abitity to submj-t timing and other things
3 associated with that p1an. That would then be
4 where I think the Vj-ce Mayor is referring to.
5 That document is a littl-e bit aged. It has to
6 be updated, but it does indicate in t.here what
1 the total costs would be for those portions of
8 the fill and the plantings.
9 And I will tell you, in my conversations
10 with Isaac earlier in this week, because we're
11 doing pricing for some of these i-tems going
72 forward now that the consent order is becoming
13 clearer, and he made the same comment to ITle r
t4 that the replanting is really a small- cost
15 associated with everything else that we're
t5 talking about.
71 COMMISSIONER SPOLL: So we will not be
1B double exposed on mit.igation credits?

79 MR. IIARMER: The mitigationcredits wil-l
20 be determined by the UMAM study at a point 1n
27 time as a separate section of the consent
)) order.
23 So Ed, clarify that. I am correct, because
24 that's how I understand t.
atr
ZJ MR. STEINMEYER: That's correct.

Paqe 40
1 You knowr w€ have to do the analysis
UMAM
2 on the impact area, but the replanting plan

3 just goes to areas where the mangroves were
4 ei-ther removed or are dead.
5 COMMISSIONER SPOLL: What happens when
6 they restore, and then we come back and do
'7
another project and we disturb the area?
B Do we not incur another series of
9 mitigati-on credits, demands ?
10 MR. STEINMEYER: That will be addressed in

11 the permit for that activity, but there will be
t2 requi-rement that there is mitigation performed
13 for the impacts that are occasioned by that
74 particular event.
15 COMMISSIONER SPOLL: So we may be exposed
t6 to two sets of mitigation credits; one now and
71 one l-ater?
1B MR. STEINMEYER: Correct.
79 And the difference is, is that right now
20 the impact that you are mitigating for is for
2I clear cutting and filling wetlands that had 15
1/_ to 20-year-old mangroves in them.
23 When you come back to do the subsequent
24 project, if there is one, then you wiII assess
25 the area that the state then at the time of

Page 4l
1 those i-mpacts. Because the mitigation credits
Z and the replanting that you are doing is to
3 offset t.he amount of time that basically the
4 amount of time and function between a one-foot
tr
J tal-I manqrove and a 15 to 2O-foot tall
6 manqrove. So you essentially are mitigating
1 for that difference. The new mitigation will
8 be based upon the status of the area that you
9 impact at the time.
10 COMMISSIONER SPOLL: The new mitigation
11 areas will be maybe 30 times as big.
L2 MR. STEINMEYER: And it coul-d be bigger
13 than the one
74 SPOLL: -- Prior to the
COMMISSIONER
15 entire pipeline from the sewer right through
16 the wetl-ands that puts us in danger, not just
71 that smalI section.
1B MR. STEINMEYER: Correct.
79 COMMISSIONER SPOLL: And the access to i-t.
20 It'sall the way to the shoreline now then.
27 MR. STEINMEYER: Right. Any wetlands or
)) mangroves that you impact with the new project
23 has to be mitigated.
24 ITIAYOR SCHNEIER: Those would be involved
25 in the cost of that project. which we are

Page 42
1 talking about as a future project.
2 MR. STEINMEYER: Right.
3 I.{AYOR SCHNEIER: Vice Mayor Haycock has an
4 additional part to his comment.
5 COMMISSIONER HAYCOCK: So I just want to
6 understand the whole picture.
1 So we're going to get fined for the leak.
8 And then we're going to basically get fined
9 again for the damage we did to the mangroves,
10 which is the mitigation credits.
11 So therers really two fines in there,
l2 right ?
13 MAYOR SCHNEIER: Let's break this down.

t4 And Ed, one question I had is we have a
1q fine, which is $187,000, or $281,000 if we
I6 decide to do an environmental project. And
t1 that is going to be a fixed number as far as
1B that fine goes.
19 That is not capable of change going
20 forward; is that correct?
2\ MR. STEINMEYER: COTTCCT.
22 We negotiated that fine as low as we can

23 get it. And that is based on essentially
24 the fine is the portion of the penalty that is
25 based orrr for example, the failure to get a

Paqe 43
1 permit before the contractor went in there and
2 fiIled wetlands and clearcut the mangroves, and
3 also for rule vj-olations such as discharge of
4 wastewater and failure to maintaj-n the system.
E
J The mitigation is not essentially the
6 penalty portion of the program is the
1 restoration of what. was lost. portion of the
8 program.
9 }IAYOR SCHNEIER: So if we look at that,
10 putting the fine aside, that will be settled,
11 we have mitigation credits, and we have
t2 restorat.ion obligat.ions, which could well be
13 vj-ewed as double counting for the same thing,
74 but nevertheless, we're we have no choi-ce
15 but. to exceed to those two payments for, in
t6 effect, restoration, right?
71 ldR. STEINIIEYER: Right.
1B And what we are hoping your envi-ronmental
I9 consultant wil-l do is to factor in the fill
20 removal- and the replanting when they prepare
21 the analysis of how many mltigation credits
22 need to be purchased so that you will, for lack
23 of a better term, get credit for having new
24 fillthere and having smafl mangroves there

1tr
that you otherwise wouldn't get if the fill was

Page 44
1 still there and there had been no mangrove
2 replanting.
3 So hopefully some of those restoration
4 activities wil-I offset how many credits you
5 have to purchase, reduce the number of credits
6 you have to purchase.
1 IIAYOR SCHNEIER: Does that answer your
B questions so far?
9 COMMISSIONER HAYCOCK: Who decides the
10 who calcul-ates mitigation credits?
11 MR. IIARMER: We submit we have to hire
t2 an environmental consul-tant to assess the
.LJ property and the extent of dieback. And then
L4 that goes to an accepted methodology that will
15 then be used to determi-ne the credits.
16 So we hire the consul-tant that does the
L1 work. We submit it to FDEP. And based on
18 that, they will det.ermine the amount of credit
I9 we need to purchase.
20 COMMISSIONER HAYCOCK: I'm good.
27 DTAYOR SCHNEIER: If I might ask one
22 follow-up on the mitigation credi-t i-ssue.
23 My understanding was that it was a direct
24 function of the acreage that was disturbed.
25 And the number we had been usinq up until very

Page 45
1 recently was .54 acres, which may or may not
2 have included the easement area. But put that
)
J aside.
4 And then we learned recently that there
5 might have been some additional disturbed area,
6 which I had heard represented as between a
1 quarter and a half acre in addition.
8 So assuming that's true, I also understood
9 from the beginning and from the before version
10 you have up here, that based on .54 acres, w€
11 were going to have to purchase .3 mitigation
72 credits, which was going to cost us about
13 $100,000.
L4 NowI'm hearing for the first time today,
15 and maybe I missed this, that that might. be up
l6 to 1.4 mitigation credits. I don't know where
L1 that comes from, if the most dramatic increase
18 is to double it f rom hal-f an ache to one acre.
t9 Can you address that? Am I missing
20 something there?
2t MR. STEINMEYER: I don't think you are
22 missing anything, but at the moment, like we
23 said, that ESA analysis that came up with the
.A
L.4 number was done some time ago and there
25 could have been positive or negative changes
Vincent M. LucenLe & Associates 800.282.8215

Page 46
1 between then and now.
La We have you know, the Town itself
not
3 has not sent anyone there to try and quantify
4 the area, so the best we have is the
5 information from ESA.
6 And I believe the total area that ESA was
1 evaluating was on the order of a total- of 1.1 .
8 So it woul-d be almost or very close to three
9 times, maybe a little more, in the initial
10 department estimate.
11 The other factor that has taken into
L2 account of the factors or taken into account
13 i-n this human analysis, if it goes beyond just
74 pure acreage it goes also to the quality of
15 resource that is impacted, and whether it has
16 been impacted before, whether these are mature
t1 mang'roves or immature mangroves. There's
1B multiple different categories that have to be
79 assessed that are resource based that factor in
20 to this cal-cu.l-ation.
27 So while it may be somewhat analogous to
22 an acre to acre comparison, there are other
23 factors that can raise that or lower that
24 ratio.
25 MAYOR SCHNEIER: Tom.

Page 41
1 MR. HARIIER: I just wanted t.o add, I want

2 to go back to the Mayor, your comment about a
3 quarter acre or a half acre.
4 That came up in negotiations with the EDEP
tr
J when they said they'd been out at the site I
6 think the day before we were negotiating with
1 them. And they said based on walking the site
8 they thought it looked l-ike t.here was about a
9 quarter of an acre or up to a half an acre of
10 additional dieback since the leak occurred.
11 And that's when, in the negotiations, they
72 said they want to include the assessment in
13 these negoti-ations. So they mentioned their
1.4 wal-k through, the quarter acre/half acre of
15 additional dieback.
76 So that was more recent than the ESA
71 report., which was in the fate summer maybe.
18 This was just in the last few weeks where DEP
t9 said when they wal-ked the s ite t.hey saw that
20 additional dieback.
27 ITIAYOR SCHNEIER: But I thought that was
22 all in addition to a number. So I don't
.54
know where the L .4 or L .1 number I just
24 never heard of those.
25 ![R. EARMER: I think Ed can respond

Page 48
1 better.
2 But I think Ed and our environmentaf
3 counsel asked the staff to have ESA go out and
4 do some assessment of the property, SO we can
5 compare and make sure the .54 was reasonabl-e.
6 And so that was the report that was requested
1 so they coul-d evaluate the .54. But it has not
8 been part of the direct negotiati-ons with DEP.
9 M.AYOR SCHNEIER: That was done when, that
10 assessment?
11 MR. STETNMEYER: That was from the August
72 ESA assessment..
13 And another factor, there is the ESA
l4 included some areas where the mangroves
15 appeared to be stres sed And we donrt know
t5 whether they were stressed from the leak, or
71 whether they were stressed and have recovered,
18 or whether they were stressed and have now
19 died.
20 So that, I think, probably provides some
27 of that extra buffer that between, you know,

22 roughJ-y an acre and t.he I .4 or the L .1 was area
23 that may not may or may not end up being
24 incl-uded in the final assessment.
25 MAYOR SCHNEIER: Okay. Mike.

Page 49
1 COMMISSIONER HAYCOCK: If you look at
Z figure three, whi-ch is one of the pictures, you
)
J know, you had the before picture and the after
4 picture, Lf you add it up, the .54 is t.his
5 (indicati.g) which what I'm poi-nting to is
6 the area where the pipe was and where they put
1 the road in. And then if you look
8 COMMISSIONER BISHOP: Mike, we can't see
9 what you are pointing at.
10 COMMISSIONER HAYCOCK: Yeah, I was trying
11 to describe i-t in the packet they gave us. In
72 the very back of figure three it shows an area
t-J where the manqroves have died off, and it's
74 about L.25 acres.
15 And I think that's the additional that ESA
I6 is referring Lo, that we might have to pay

1.1 mitigation credits for, whereas that half an
1B acre is basically that place where the road was
19 that they had to dig up to get in there.

20 MAYOR SCHNEIER: Okay.
27 COMMISSIONER HAYCOCK: I am speculating,
22 but based on reading this thing a couple times.
ZJ But I guess the bottom line is we don't
24 know until you go out and stake it, do another
25 analysis, and then they come back wi-th the
Vincent M. Lucente & Associ-ates 800.282.8215

Paqe 50
1 report.
2 MR. HARMER: And thatrs required.
3 So within 50 days of the effective date of
4 the orderr we wiII go through the UMAM method
5 to identify so we have within 60 days of
6 executing the order to do that.
1 And then within 30 days of the state
B approving that UMAM reportr we have to then buy
9 whatever credits come out of that. That's what
10 the order says.
11 MAYOR SCHNEIER: Commissioner Da1y.
72 DALY: Just to comment,
COMMfSSIONER
13 trlggered by George's comment on the redundant
74 Iine.
15 And I endorse Mikers comments from this
t6 standpoint. I think it's unclear. I think our
71 follow-up study will certainly focus on the
18 need for a redundant line here.
I9 And I think it's entirely possible that
20 we particularly for the major portion of the
27 line under the bay where i-t's relatively simple
22 to inspect technically the interior of the l-ine
a)
LJ and visually the exterior of the line, we might
24 well be advised like we were before, that we
25 have 15 or 20 or 25-year life for that section

Page 51
1 of the line.
2 And I'm speculating a bit, but having had
3 some natural gas and pipeline experience,
4 speculation has some basis for it.
5 One result of that, our evaluation might
5 be if there is a need for a redundant line at
1 all, perhaps it will be limited to the
8 underground portion that's not as susceptibl-e
9 here to a visual exterior evaluation.
10 So aII a roundabout way of getting here,
11 my term's ending here very shortly, but I would
I2 just hope that we would focus objectively, and
13 I know we will r or you will, here on eval-uati-on
L4 and the testing from an expert here. But I
15 don'L think it should be a given at aII that
L6 automaticalty we're on a course here for
11 complete redundant l-ine. I think a lot has to
1B be evaluated before we get there. And that's a
19 big, big expense clearly. So just some
20 comments, Ken.
27 MAYOR SCHNEIER: Thank You.
22 MS. MOONEY: Vice Mayor, Mayor, I know the
23 Vice Mayor was referencing an exhibj-t four r or
24 a figure four from the report. I | 1l put it up
25 on the screen for purposes I believe this

Page 52
1 was what you were referring to, Vj-ce Mayor?
2 COMMISSIONER HAYCOCK: It was figure
3 three.
4 MS. MOONEY: Figure three? Okay. Hmm.
5 Let me get that one up. Is that one up on the

6 s creen ?
1 I{AYOR SCHNEIER: Yes, that ' s the one .
B COMMISSIONER HAYCOCK: And I was referring

9 to the red shaded area to the f think that's
10 the east , Lf I got my north, south, east, west.
11 And I think that's the one that is the
72 discrepancy between the half acre and the L.1
13 that was in that report.
t4 COMMISSIONER BISHOP: Thank you, Maggie.
15 MS. MOONEY: You're welcome.
15 MAYOR SCHNEIER: Okay. Would anybody el-se
71 like to address this issue number two?
1B Yes, Commissioner SpoII.
t9 COMMISSIONER SPOLL: I want to partially
20 concur with what Jack Daly said.
2t I did not suggest that we build an entire
22 redundant line. If you recall, we were warned
23 several years ago when the Long Bar subdivision
24 was proposed that we had there was a
25 question whether our pipe was totally within

Page 53
1 the right-of-way. And second of a1l, that we
Z had an opportunity to tend to that section of
3 the line that's unsure through that
4 development, which at this time would be
E
J relatively easy to do, as opposed to when and
6 if the and pending t.he development and
1 buildings would be placed there, which would
8 make the project far more expensive.
9 The only section that I feel we should
10 attend to very quickly is that section. And
11 any decision that we make should recoqnize, in
t2 my view, is that secti-on should be replaced.
13 At least the section from the shore to the
74 roadway that goes through the development.
15 The area from t.he roadway t.o the plant. is
t6 something else. static.
And that.'s relatively
71 So I fook upon the area that is presently being
1B discussed as being the primary area that's in
79 question.
20 II{AYOR SCHNEIER: Understood.
27 COMMISSIONER DAIY: YeP.
aa
IIAYOR SCHNEIER: Yes. Commissioner Zunz.
23 COMMISSIONER ZVNZ: We have had quite a
24 bit of discussion here, and there are obviously
25 many things in the agreement wj-th which we are
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Page 54
1 not entirel-y pleased.
2 But we all recognize the position we're
3 in. We have a lot of back and forth. And it's
4 being presented to us now. This is the final
tr
J thing and you either say yes or no.
6 What I have to suggest is simply a very
1 pragmatic approach to the kind of situation
o
we're in. Obviously, we can't go back to the
9 DEP and say we have this handful of things that
10 we still want to rectify. That probably would
11 be counterproductive. We would be worse off
12 for having taken that approach and we would be
13 just accepting it.
74 I was wondering about if we were to have
15 the temeri-ty to go back to them and sdy, y€sr
16 we've had a lot of negotiations and we have
L1 both made a l-ot of concessions, but there's
1B quite a few things that we are really troubled
t9 with. We're willing to put all that aside, but
)A therers just one single thing that we would ask
2l you to give very serious consideratj-on to.
22 So I have two questions to put on the
23 table. One, Lf we were to take that approach,
24 what would that one thing be? And maybe
,)tr
somethj-ng we have already talked about .

Page 55
1 And my second question is, if we did take
2 t.hat approach, would even that possibility put
3 us in a worse situation than we would be in if
4 we didn't ask for anything? Like a bunch of
5 things, buL we're not going to get a lot of
6 things. And I'm just trying t.o get somethi-ng
'7
from this.
B IIAYOR SCHNEIER: Ed, do You want to
9 respond to that?
10 MR. STEINMEYER: Sure.
11 And commission, that's essentially what we
72 did the last time. We focused on the four main

13 issues and went back and took various routes to
74 communicate those issues to the department and
15 we pushed hard on those.
76 And as we see it, we have essentiallY
l1 accomplished three of the four issues,
1B including the primary one about removing the
19 requirement for the redundant line.
20 And Sor you know, I think our final
21 remaining issue was, you know, should we have
22 to restore and purchase credits for impacts
23 that occurred wlthin our own pipeline easement?
24 And DEP, we went back and forth on that
25 quite a bit, and DEP finally just said that you
Vincent M. Lucente & Assoclates 800.282.8275

Page 56
1 have to do it and we're not negotiating any
Z further on that, and as far as we're concerned
3 we are done with this consent order.
4 So there could be a way that we can say
5 we're ready to sign, the commission is ready to
6 sign, but, you knowr we have to jump this one
1 last hurdle.
8 I donrt think the DEP are willinq any
9 further. This has been taken up to the highest
10 level-s or t.he second highest fevel be1ow the
11 secretary of the department in Tallahassee.
1,2 And we have been i-nformed severaf times
13 that this has the full backing of the superiors
l4 in Tallahassee.
1tr
IJ So while I think we could do it, I don't
76 thlnk we would get very far with it.
1,1 }IAYOR SCHNEIER: Ed, let me ask you
1B another question along those lines, maybe a
19 Iittle bit more technical- question.
20 If we were we now have two issues that
21 we're basically putting off for further
22 resol-ut.ion.
23 One is what our plan is, which we have 90
24 days to come up wit.h.

25 And two now is what is the size of the
Vi-ncent M. Lucente & Associates 800.282.8215

Page 51
1 damaged area is, which i-s going to be surveyed

2 and determined.
3 And we need to reach aqreement with the
4 DEP on what the results of those two things are
5 or not. And if we're not we're going to have a
6 litigation fight with them.
1 My question is obviously things that are
B clear and reso.l-ved in the consent order will
9 not be subject to a fight if we don't reach
10 agreement on these open issues
11 If we need to fight them later oor will
72 the issue of whether we need to mitigate and
13 replant our easement area be an open issue that
74 we can raise in that second fight I t.hink
15 you know what I'm talking about or is that
76 something that, by signing this order we have
1'7
definitively given in to?
1B MR. STEINMEYER: I think I understand your
79 question. And I'11- sort of go back to the
20 contract, breach of cont.ract sort of action
2t that 1f we sign this consent order it's l-ike
22 signing a sett.lement agreement.
Z3 The underlying case essentially goes away
24 and the new fight is over, whether the terms of
25 the settlement agreement or the consent order

Page 58
1 are being complied with or not.
2 And so we would be limited to ;ust issues
3 of your compliance or noncompliance with the
4 signed consent order.
5 II{AYOR SCHNEIER: Right.
6 But either one of the open issues, the
'7
plan we proposed, which is going to be all
8 encompassing, and the size of the damaged area,
9 coul-d include the issue of whether the easement
10 area is wit.hin that and needs to be mitigated
11 or proposed to be mitigated.
t2 So my question is would we be abl-e
13 would we have standing to arque in that second
l4 fiqht that the easement area should be
15 excluded?
t6 !dR. STEINMEYER: I think that f 'm not sure
t1 that we would be able to make that argument,
1B you know, just as a matter of fact. You know,
L9 do we legally have to mitigate it or not?
ZU I think where the argument would come down
2t to would be that. the mitigation credits
22 possibly shoul-d be lower because this is an
23 active utility easement, and therefore not as
24 valuabfe as the adjacent mltigation bank. You
z5 know, things like that that woul-d factor into

Page 59
1 the UMAM ana.l-ysis, and also things like we have
2 talked about already today, this j-s a utility
)
J easement. It's subject to being impacted,
4 whether through maintenance or repair ox, you
5 know, installation of new line or whatever. So
6 that we can make argument that the value should
1 be less and theref ore the mitigation .l-ess.
8 But I don't think we can revisit the issue
9 of IegaIIy are we required to mitigate for
10 impacts withln this area or not.
11 MAYOR SCHNEIER: Understood. Tom.
72 MR. HARMER: I just want to go back to the

13 negot j-ation piece.
74 I've had the pleasure of being involved in
15 almost all of the discussions with the district
I6 office, discussions with Ed and the counsel for
71 DEP, but I think we did a pretty hard push
1B recently to try and get the easement issue
t9 resolved. And we also worked with st.aff and
20 identified dates that the staff really
some
27 wanted to see increased because they felt like
), it was too short. And so we weren't getting a
23 favorable response.
.A
And so I had a personal conversation with
25 the district director and made that st.rong
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Page 60
1 pitch to say this is al-l- for us to recommend
2 this for approval to the commission, this is
3 all- we need. We really need the easement
4 clarified and addressed, and we need these
5 three dates changed.
C) And I will- teI} you, she asked for a
1 couple hours to do some checking, and I think
8 she said above her l-evel, which meant
9 Tallahassee. And she did get back to me. And
10 this was, 1ike, a Friday/Saturday kind of
11 discussion.
72 And she came back and said, Enough is
13 enough, we're done negotiating. We have told
74 you guys before. I will make one date change
15 for you. So that's when she changed one time
16 frame from 20 days to 45 days. But she said,
t1 you know, thatrs it, we're not it is what it
1B is, and your commission needs to take action on
19 ir.
20 So I just wanted to share that, because
2t that was a one-on-one phone conversation with
22 the district manager recently as we were trying
23 to bring the last couple items to closure.
tq I.{AYOR SCHNEIER: Commissi-oner Da1y.
,tr' COMMISSIONER DALY: A question of

Page 6l
1 qualification here.
2 In the before right at the end of the
3 before there's a reference that credits from or
4 in the Natured Coast Mitigation Bank, quote, a
tr
J bank t.hat' s not even in Sarasota Bay.
6 Are there mitigat.i-on credits in Sarasota
1 Bay or is this still a requirement after in the
8 present document ? Just maybe a l-ittIe
9 clarification of how that. bank works and how it
10 affects the mitigat.ion credit.
11 MR. STEINMEYER: Without boring you with
72 alt the gritty details of t.he lit.igation
13 COMMISSIONER DALY: Sum it up. I'm not
74 looking for an elaborate discussion, but just a
15 bri-ef explanation.
t6 MR. STEINMEYER: Yes, sir.
71 Basically mitigation bank credits can only
1B be used within what is cal-led the service area.
79 They want you to buy credi-ts from an area that
20 encompasses where the impacts are.
2t In this case there's not a viable
22 mitigation bank within your area where the
23 impacts are. So the closest one that has the
24 type of credit that we have to purchase is this
2\ natured coast mitigation bank that is up in, I

Page 62
1 think, Hillsborough or Pasco County, somewhere

2 in that area.
3 COMMISSIONER DALY: That's answered it.
4 MS. MOONEY: The only thing to add to what
5 Ed just said is the mangroves within this Long
6 Bar Point property are currently in process of
1 getting permitted to be a mitigation bank. So
8 they would be potentially at some point a
9 qualifying Sarasota Bay mitigation bank, but
10 they are not at the present time.
11 COMMISSIONER DALY: Thank you.
t2 TI{AYOR SCHNEIER: GeOrge .
13 COUMISSIONER SPOLL: I didn't have my hand
74 up any more.
15 II{AYOR SCHNEIER: Okay. Commissioner Zunz.
t6 COMMISSIONER?VNZ: If we are at the point
l1 that we are convinced there will be enough for
1B negotiations and that's our only choice today,
79 and the purpose of today is either do we accept
20 this or do we not accept thisr so shouldn't the
2t discussion at this point be should we accept
22 this or not accept this, and what are the
23 repercussions of each of those two things, ds
a/
opposed to these little items as to which we
25 would like to improve or clarify, and so forth.

Page 63
1 IIAYOR SCHNEIER: No, nor I think you are

2 right. And that's why we're going through each
3 point and seeing what the substance of a the
4 ultimate question is if the issue is do we want
5 to have a fight now?
6 And there's some things we disagree with.

'7
Do we want to litigate with them now or do we
B feel the chance that. we might resolve the

9 i-ssues, combined with the fact we might be in a
10 better posture to litigate after we've

11 submitted our pJ-an, You know, that's going to
l2 be our choice.
13 So I would just ask, barring anything else
74 we've learned, the same question we answered in
15 number one, are there any objections right now
10 to accepting the proposed resol-ution issue two?
l1 And again it's versus havi-ng a litigation at
18 this point.
19 So we'l-I pick up the ultimate question
20 aqain at the end, but why don't we move on to
2t number three, Ed.
)) ![R. STEINMEYER: okay.
23 Issue three we can do the l-ast two
.A
issues pretty quickly.
25 Issue three was the DEP was requiring us
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Page 64
1 to do this very involved, costly, detail-ed

2 analysis. And they wanted to make that plan
3 enforceabler so if we didn't comply with it in
4 any way they coul-d come after us through an
5 enforcement action.
6 After negotiations, we were able to get
1 DEP to significantly narrow down that
I requirement to simply an operations and
9 maintenance manual, which we have discussed
10 with your public works f ol-ks . And they're much
11 happier with an O&M manual than a CMOM
72 developed manual.
13 And essentiallyitrs a Iess costly, much
74 more narrow manual that most util-ities and most
15 other entities l-ike this have an O&M manual,
16 and the requirement is that we maintain
71 compl j-ance with our manual .
10
So we fel-t fike thls was a positive change
19 in the order that achieved the goals that we
20 were after on this particular point.

27 MAYOR SCHNEIER: Questions?
22 Commissioner Bishop.
a')
CO&MMISSIONER BISHOP: Not So much a
Z4 question, Your Honorr ds this may be an

25 appropriate time to just insert the comment

Page 55
1 that I'm very happy that this was reduced to

2 this Ievel, but I would really Iike to submit
3 and urge us that if we aqree that we are going
4 to move forward and accept this, that in our
Jtr transmittal letter that there be some language
6 that stipulates I feel very st.rongly t.hat our
1 staff did everything possible to adhere t.o all
8 of the things that they do to ensure that our
9 system was operating correctly.
10 And I think a number of the things that
11 were st.ipulated in this action that EDEP has
t2 taken against us is highly critical of our

13 staff and I find it highly inappropriate.
t4 And while we may be signing off on this
'1
]J
tr,
suit, I certainly don't think there is any
t6 reason we can't say in our transmittal letters
11 that we totally disagree with how they have
1B characterized our staff.
79 MAYOR SCHNEIER: Maggie or Ed, do you want
20 t.o respond to that?
27 MR. STEINMEYER: My only input woufd be
22 that if we do that I would suggest that we
23 carefully word that.

24 Because as WE have discussed, we have
25 several plans and analyses that will still be

Page 66
1 due to the department under this order, and we
2 don't want to give the department any reason or
3 a reason above and beyond what they already
4 have expressed to us to make our l-ives more
5 miserable in terms of approval of these pIans.
6 I'm hopeful that resolving this with the
'7
consent order will get the management off the
I backs of the district in terms of bringing it
9 to some sort of conclusion, and that the
10 subsequent analyses that we submit, that there
11 will be l-ess pressure for the department to
t2 extract a pound of f l-esh on these things.
13 So my advice woul-d be that we just be
T4 careful until we have all of these things
15 wrapped up with what we say to the department.
16 MAYOR SCHNEIER: Commlssioner Dominick.
71 CO&MM]SSIONER DO&M]NICK: I would liKe Io
1B echo what our outside counsel is saying.
t9 I think that as a legal matter, Lf I'm
20 understanding the nature of a consent order is
2t no admission of any responsibility or liability
22 for anything, and we are just sailing ahead and
23 moving forward, Lf I understand the legal
24 impact.
25 And I agree with B.J. It would be ni-ce to
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Page 61
1 defend our staff. It seems like it may be

Z better to do that after a1l the issues are
3 resolved and t.hen we have newspaper interviews
4 at that point or something. f'm a little
E
J concerned about inflaming things before
6 everything is resolved.
1 So am I correct, Maggie, and outside
I counse], ofl the effects of the consent orders?
9 MS. MOONEY: Yes, Yes, in many waYS
10 Commissioner Dominick.
11 And the caution that you just expressed, I
t2 think, is well put. We're not done yet.
13 Even if we agreed to this document today,
l4 we are not done yet with the DEP. And there
15 may be a time and a place to express our
76 dlssatisfaction with DEP staff, but I donrt
71 know if in the transmittal- that's the best use
1B of placing it. There are other ways to convey
79 that messaqe in other forums that we can
20 express outside of this litigation and outside
2t of the transmittal.
22 CO&MMISSIONER DO&MIN]CK : So Maggie, are
23 you now stating that this has not decl-ared that
24 there was wrongdoing on the part of the Town or
25 our staff?
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Page 68
1 MS. MOONEY: No, it does state the facts
2 as presented in the consent order. We are
3 agreeing to them as presented. We are saying
4 we are essentially responsible for the spi11
tr
J that occurred in the June timeframe, and we are
6 stipulating to the facts that the department's
1 actions for failure to maintain and for
B unauthorized spilI activities. We're say.ing,
9 okay, we are agreeing to all of that.
10 But we are negotiating a settlement, which
11 means that we're not going to fight you any
l2 more on alf of these points. We're going to
13 agree to settl-ement terms as presented, some of
l4 which still have some points that will have to
15 be renegotiated down the road, and specifically
76 that's issue one and issue two.
71 But we think it's the best we can get
1B without going t.o an administrative type of
19 hearing. And even then, you know, I think for
20 particularly for those of you who have been
27 invo1ved in litigation before, we may have a
22 sLrong case, but litigation is the sport of
ZJ kings; somebody is groing to win, somebody is
24 going to loose. And we can't predict who, at
25 the end of the day, is going to be that

Page 69
1 prevailing party, particularly when, dt least

2 in the Division of Administrative Hearings
3 forum, DOAH, as they're known, administrative
4 Iaw judges where this coul-d be litigated, often
5 sides with the agency, which means the DEP, not
6 tt c
1 So the rules are sometimes stacked against

8 us. And, you know, we took the directives from
9 the commission from t.he January 5 shade meeting
10 as a priority, and we beat on the DEP as hard
11 as we could, and we believe t.his is as far as
l2 they wil-I go in terms of our priority issues.
13 And so collectively we believe that it I s
74 in the commission's best interest to agree to
15 this and save those other particular
10 cl-arifj-cation fights for another dry, and maybe
l1 not punch the DEP in the nose right now.
1B CO&MMISSIONER BISHOP: A11 of you know
t9 that I am particularly distressed that we have
20 waited until 2:00 p.m. on the day that this
2t order has to be addressed. Because I kind of
22 feel like we have been pushed right to the wi-re
23 in this. We have heard this discussion going
Zq forward. There seemed to be a number of
25 concerns and issues.
Vincent M. Lucente & Assoclates 800.282.8215

Page 10
1 And if this was my private busj-ness and my
Z attorney had pushed me to 2:00 p.m. and said f

3 had to have a decision made by five, those
4 attorneys would probably not be in my employ
5 anymore.
6 So I really feel like we as a commission
1 have been pushed right. to the wi-re without
B enough time to be able to go back and forth
9 with you all on t.his issue. So it's been very
10 disappoi-nting.
11 II{AYOR SCHNEIER: I just want to address
72 very quickly B.J.s initial comment, which is
13 this issue of responsibility.
1,4 And, you know, I think one thing we have
15 learned as we have been negotiating this
I6 agreement is that the DEP takes a position, and
T1 maybe justifiably, that there is in essence
18 strict liability for a leak from your pipe.
79 So there's not necessarily an undertaking
20 of negligence, but we if we are, if our pipe
27 Ieaked, we are responsible, reqardless of
22 whether t.here was negligence.
23 thrnk there wasn't. We think we did
We
24 everything we could to be carefuf. We made
Z5 that poi-nt repeatedly and we're certainly going
Vincenl M. Lucente & Associates 800.282.8215

Page 17
1 to make it to Manatee County in Iooking for
2 some sharing of responsibility on this.
3 But f think that's an important el-ement to
4 consider.
E
J Yes, Ed.
6 CO&MMISSIONER ZUNZ: With regard to these
1 points that I have the same concerns. And I
B have it marked in section 9.10 of this
9 document, which it says that we have fail-ed to
10 maintain equipment and we did an unauthorized
11 di s charge of wastewater.
t2 That wording really doesn't sound like
13 negligence. It sounds l-ike you guys did this
74 on purpose. You were trying to cut corners.
15 And so that does disturb me very much the way
16 that is stated i-n that page.

71 Normally, in a consent agreement you say
1B we admit liability and so forth and so onr but
79 here, by agreeing to this language, we sort of
20 are admitting to intentional conduct, and that
27 seems unfair and inappropriate to me. But I
22 don't know what we can do about it at this
23 point.
Z4 MR. STEINMEYER: Wel], f'd just like to
atr
ZJ point out in the introductj-on to those findings

Paqe 12
1 of fact, the department often puts, The
2 department finds, and, The respondent admits to
)
J the following.
4 And we deleted that language and said
5 that, The department finds, and, The respondent
6 neither admits nor denies, but for the purpose
1 of resolving this matter.
8 And I'Il-
also add, too, that we pushed
9 them very hard on the failure to maintain
10 language in there for the very reason that we
11 did not believe it was a failure to maintain.
72 Itrs an unfortunate occurrence wel-f bef ow
13 ground that we had the Town had made efforts
74 to determine the integrity of the pipe recently
15 before it happened. And the department
t6 basically just refused to puII that out of
l1 there.
1B But to put that in a little bit of
79 context, those are permitting provisions. And
20 the failure to maintain is interpreted by the
2t department essentially as if it broke it must
22 not have been maintained properly. So it's
.) ')
less of an indictment against the Town as it is
24 just a simple you violated the statute because
25 we interpret it this way.

Page 13
1 The same with the discharge of the
2 pollutant and the unauthorized discharge.
3 There are certain circumstances where you can
4 get a permit to discharge a pollutant. The
5 Town didn't have a permit to have a leak in its

6 wastewater line, and dissourced (sic) the
1 pollutant. So that's a technical violation of
8 that rule.
9 So I understand that doesn't really read
10 very nicely, and it's not something that
11 anybody wants to admit to or that we even agree
t2 we should be responsible for, but please just.
13 understand that those are sort of rote permit
74 violations or regulation violations and that's
15 why they're phrased that way.
76 CO&MMISSIONER ZUNZ: The Mayor just said
71 they're imposing strict liability on us.
1B MR. STETNMEYER: Right.
T9 II{AYOR SCHNEIER: Commissioner Dominick.
20 CO&MMISSIONER DO&MINICK: YCS.
27 I have a somewhat different feeling about.

22 it this. I actually, reading through all this,
23 came away feeling like outside counsel and
Z4 Maggie has done a really good job for us in
25 terms of minimiz:-nq liability on issues to the

Page 14
1 extent possible.
2 And I also came away, after reading the
)
J revised order, sort of with the recognition
4 that this was going to be kind of written like
5 this in part because the department has to be
6 able to show the public and the press that, you
1 know, theyrre the defenders of the environment
I and al-l- that, and no matter whatr we woul-d have
9 probably some language that would make us
10 uncomfortable.
11 I think it'sin our interest to try and
I2 move this ofl, if we can, rather than engage in
13 Iitigation at this point with the department.
74 I t.hink that would be a mistake and I'm not
15 sure we'd come out. in a better position if we
16 did.
7'7 So, I mean, ofl balance, I feel- it's not
1B perfect, but it's a lot. better than it was when
79 we started out, and I'm satisfied with that
20 personally and I t.hank you guys for all your
2t efforts.
22 MAYOR SCHNEIER: B. J.
23 CO&MMISSIONER BISHOP: Oh, no, I agree, we
24 have to sign it. I just don't ever like being

ZJ told here's a conversation and it's now a.l-most
Vincent M. Lucente & Associates 800 .282 .821 5

Page 15
1 4:00 and you have to sign it by five.
2 So I just woufd have preferred that we had
3 a more timely discussion and that we woufd have
4 had this discussion last week.
tr
Okay. Thank you.
6 MR. FM"ASH: Ed, you may want to discuss
1 the fact that negotj-ations with DEP, even up to
8 Friday, and the going back and forth, they
9 called a halt t.o the negotiations basically to
10 a call in on us and said as far as we're
11 concerned this is the end of the negotiations.
72 This is not something that we could have two
13 weeks ago that we even had close to being
74 worked out up to that point.
15 And sor you know, they threw t.heir hand
T6 down, we didn't. So we're not if we coul-d
l1 have brought it t.o you earlier, and if the
1B manaqer could have brought it to you earli-er we
T9 would have loved to of . But t.hey were the ones

20 who called the halt to the negotiati-ons.
27 !4AYOR SCHNEIER: Yes, Tom.
22 MR. EARMER: I just wanted to add one more

Z5 commentto t.he findings of fact discussion,
z4 because you didn't. mention this, but in the
25 earlier versions they had specific language in

Page 16
1 there about the Town failed to respond in a
2 timely manner.
3 And we shared and argued the evidence back
4 and forth between us and Manatee County and
5 they did also remove that. And so there was a
6 l-ot of back and forth and that section was also
1 removed and is not in the final versions.
I MAYOR SCHNEIER: Ed.
9 CO&MMISSIONER ZUNZ: I had no intentlon at
10 all of criticLZLnq the way this was handled by
11 our attorneys.
t2 But with aII we have done and all the
13 money we spent to try and test these pipes, and
L4 then five years later we are getting ready
15 to get back in and reassess everythi-ng we have
t6 done, and then we get accused of something like
71 this with this strict }iability standard. Itrs
1B frustrating. But f'm not frustrated with the
79 attorneys. f'm frustrated with the standards
20 that are being applied to us.
2t MAYOR SCHNEIER: All- right .
ZZ This has been a good discusslon about a

23 relatively small point, which is the operations
24 and maintenance manual.
25 But let me ask the same question. And
Vincent M. Lucente & Associates 80a -282.8215

Page 11
1 that 1s if anyone objects to our resolving
2 issue three the way it has been proposed?
3 Seeing none, Ed if you would like to move
4 on to issue number four.
6 And this was another issue we ident.ified
1 previously, and we believe was resolved
8 satisfactorily.
9 The short version is that similar in the
10 before condition had a restrict.ion on how the
11 Town could use its funds as it pertains to the
l2 sewer system.
13 And Maggie worked with your bond counsel
74 and came up with appropriate language for the
15 consumer in attachment B that essentially adds
t6 this other lawful- purposes of the sewer system
71 language into the order.
1B And so according to your bond counsel,
19 that resolves the concerns that we had with the
20 restri-ctions on the usage of funds. So we
27 believe this issue is fulIy reso1ved in the
22 Town's favor.
23 TI{AYOR SCHNEIER: Questions.
Z4 One question, Ed. I noticed in the
25 redline versi-on that and correct meiff'm

Page 18
1 wronq it seemed like we added a provision
2 that was granting the state a security interest
)
J in our water and sewer proceeds, subordinate
4 interest.
5 Was that part of this issue?
6 MS. MOONEY: If I can answer that, Mayor.

1 And the answer l_s yes. And that was consistent
8 with what our bond counsel actual-1y wrote.
9 Our bond counsel wrot.e that based upon our
10 exi sting wastewater ordinance 2020-LL and
11 existing debts outstanding. they wanted to
So
l2 make sure that nothing impaired our existing

13 debts. So existing debt would supersede this
74 obligation.
15 IIAYOR SCHNEIER: Okay .
I6 f don't see any other hand up.

T1 proceeding with
1B the recorTrmended disposition of issue number
19 four?
20 Seeing none, do you want to summarize?
21 ldR. STEINMEYER: Sure.
22 This will be somewhat redundant, but in
23 terms of just an overall score card on how
Z4 these issues were addressed, we believe issue
25 one with the redundant line requirement, that

Page 19
1 was removed, and we believe that was
z success fuIIy addressed in accordance with the

)
J direction we received from the commission.
4 Issue two was the mitigation issue that. we
5 spent a lot of time discussinq. That
6 essentiatly is where it is. We didn't make a
1 lot of progiress, although the game sort of
8 changed on us due to additional impacts caused
9 from the die-off of the mangroves that were
10 discovered later on in the process, so the
11 penalty was not reduced. The viol-ation for
72 activities within the easement was removed but
13 we stj-ll have the requirement to assess and
-Lq mitigate for the impacts within and outside of
15 the easement.
76 fssue three, the CMOM was reduced to an
l1 O&M manual, which we believe was a satisfactory
1B reso.l-ution of that issue. And the bond fund

19 restrj-ctions were removed and clarified through
20 bond counsel, which we believe was a
2t satisfactory resolution of that issue.
22 So basically we batted 750 on this
23 particular listhere, which is good for
24 basebal-l- but certainly not perfect for consumer
25 negotiat.ions. But we believe that we

Page B0
1 certainly believe we have exhausted al-l of our

2 possibilities within the consent order realm
)
J and that this is what we are left with and what
4 the commission needs to consider in terms of
5 approving or rejecting.
6 The optlon that we have sort of already
1 qone over in discussion are execute this
B consent order as transmitted, the last document
9 of which was transmj-tted Saturday. They had
10 some things they didn't pick up in our
11 negotiations that we had to make sure they
t2 picked up and included. So that's the most
13 recent version.
14 We can attempt to continue to neqotiate
15 the consent order on anyt.hing that continues to
76 cause the commission concerns. As we have
t1 already mentioned, DEP has been quite clear and
1B quite adamant, that this is the take it or
79 Ieave it position.
20 So I do not believe that any attempt to
2t negotiate any of these points further will be
22 well taken and we might get a notice of
23 violation letter by return mail tomorrow if
24 that's the case.
25 The third option is to reject the consent

D:aa
r qYU 81
1 order as certainly proposed, and just basically

2 make the department go through a formal
3 enforcement action and litigate with the
4 department over that.
tr
J I think if we believed that we had cl-ear
6 Iegal authority and very strong positions on
1 any of these matters t.hat that might be an
8 option that we would recommend. I do not
9 belleve that is the caser ds Maggie mentioned
10 earlier.
11 And there's a lot of deference that is
72 given to state agencies. And we do have the
13 fact that there was a spill, and it was a large
74 spiI1. And unfortunatefy, it. occurred at a
15 time when DEP was really focusing, and frankly
t6 the J-egislature in general, was realIy focusing
l1 on relief from public utilities.
1B And so I think that ligating it, I don't
79 know it would really get us in a better
20 position, and it's entire1y possible it could
27 get us in a significantfy worse position with
22 the department.
23 Because as we said repeatedfy, these are
24 like mediation or other sort of settl-ement
25 negotiations and, you know, you don't always

Page 82
1 fire both barrel-s when you are negotiating.
2 And if i-t fal-Is apartr we can expect DEP to go
3 back and add back in some viol-ations that they
4 have removed up to this point. They may even
tr
J try to add things that they have not pushed so
6 far and they could potentially seek larger
1 penalti-es. They have removed some of the
B add-ons they had initially put in there in
9 terms of bad faith and delay in reporting.
10 They removed failure to report violations.
11 So, you know, we believe that the playing
72 field would be significantly expanded if we
13 reject this order and make them proceed to

74 litigation.
15 So those are the options. And I sort of
16 jumped a littl-e ahead to sort of the basis for
71 our recommendation on this, which is to settle.
1B We have a couple other slides just which I
19 think you have seen.
ZU MS. MOONEY: Commission Bishop has her
2t hand raised.
22 MR. STEINMEYER: Oh, okaY. I'm sorry.
23 CO&MMISSIONER BISHOP: I was ;ust going to
24 say it looks like we real1y tend to option one.
25 And I just want to know how much the

Page 83
1 bleeding so far has cost the citizens of

2 Longboat and how much more financial bleeding
3 are they going to see.
4 MR. STEINMEYER: This slide is the current
5 bleeding in terms of the legal expenses.
6 In a prior version we had included our
1 expert analysis reports, which those have been
B produced and paid for. So these are the costs
9 through the end of January in terms of lega1
10 costs.
11 In terms of going forward, I think
t2 certainly litigation would be an expensive
13 cost. And we have just roughly estimated t.he
74 amount of time rt might take, and sort of a
15 monthly average, understanding that some months
IO will be larger and some months will be sma-l-Ier.
71 And in terms of negotiating to resolution,
18 obviously, if you approve and sign the consent
\9 order today, our work will slow down
20 significantly.
27 The only t.hing I can think of in t.erms of
22 future invol-vement would be some input on the
23 studies in terms of how to phrase those for
Z4 maximum possibility of acceptance by the
25 department and minimal l-iability and

Page 84
1 responsibility to the Town.
2 Also, in terms of the UMAM and impact
3 anal-ysesr w€ think we can add some value there
4 to hopefully work with your consultant to get
5 those numbers as low as we can possibly get
6 them while still being acceptable to the
1 department.
8 So I think our costs wilf probably be less
9 than they have been, just because of the
10 significant amount of effort and back and forth
11 with the department will probably have some
t2 costs going forward just reviewing some of
13 these plans and anal-yses.
74 Ir{AYOR SCHNEIER: You said a number on your
15 last slide, which was $100r 000, through the end
t6 of January, 100 plus. And we had seen previous
I1 numbers that I think totaled to about 500,000.
TO
Are those January numbers included or are
79 those on top of?
20 MR. IIARMER: As I understand it, and I
27 checked with finance late last week, the number
22 they're tracking so far overall, which is the
Z5 l-eak access, the repairs, the environmental
24 work, the survey work, a1l of those things
atr
ZJ including environmental- and legal and Town

Page 85
1 Iegal counsel, the number was just under

2 450,000, 450,448, as of a week or so dgo, as
3 f ar as j-nvoices processed by the Town.
4 I{AYOR SCHNEIER: And that included the
5 January numbers.
o l[R. IIARMER: 1 be]-ieve so.
1 f 'm tooking at the numbers that l-ook like
B it includes that. In round numbers it's about
9 450,000 so far.
10 There w111 be some follow-up expenses
11 based on what occurred recently. And then
I2 whatever it is to implement the consent order
13 is additional costs, for the survey/ the soil
L4 work and all the other, development of the
15 operations manual, those items will al-l be in
L6 addition.
l1 Ir{AYOR SCHNEIER: AII right.
18 Ed, Jack, Maggie, thank you very much for
79 t.he presentation and al-l the work.
20 Before we move back into our public
27 session, I would like to give each commissioner
22 the opportunity to have a final comment on this
23 and any final questions they may have.
24 So are there any? Vice Mayor.
25 CO&MMISSIONER HAYCOCK: I have one final

Page 85
1 question.
2 One of the items in here was pay the fine
3 or an in-kind project.
4 What's our feeling on where we are going
5 to land there or what you are going to
6 recommend, Tom?
1 MR. IIARMER: I'm recommending an in-kind

B proj ect .
9 At this point we don't know what they're

10 going to approve. There's timelines in here
11 for us to submit in-kind projects and they have
72 said and we understand it can be single project
13 or several prolects that add up to the total-
74 amount.
15 So our intent is that we submit a project.
76 So we will discuss that with the commission as
l1 we go forward. But we would recommend instead
1B of paying a f ine t.hat's going to go up to
79 TaIlahassee, that we use an in-kind project
20 value it's more. It's one and-a-half times
27 the fine, but it's for work that happens here.
22 Westill- don't know what they will agree
23 to, but we have identified what we think are
24 some precautionary and/or maintenance items
25 that need to occur in our system that wil-l-
Vincent M. Lucente & AssociaLes 800.282.8215

Page 87
1 qual Lfy, but we'll have back and forth with the
2 state on that.
3 CO&MMISSIONER HAYCOCK: But you only have
4 30 days to come up with something?
5 MR. HARMER: Let me Pul1 uP the You
6 have to notify them I think within 15 days.
1 And then exhibit D, within 50 days of the
I effective date of this consenL order the
9 department notification that an in-kind project
10 is acceptable.
11 So within 60 days of them confirming that
72 an in-kind project is acceptable. We have 15
13 days to say we want to do an in-kind. Once
74 they say yes, then we have 50 days to actually
15 present the project for their review.
t6 CO&MMISSIONER HAYCOCK: OkaY.
l1 And we would then we review that as a
1B commission and do that. j-n the open or in a
19 shade meeting?
20 MR. IIARMER: In open.
2t CO&MMISSIONER HAYCOCK: Open. Thatrs aII
22 I have. I'm supportive of accepting the
23 consent order.
24 MAYOR SCHNEIER: Commissioner Dominick.
25 CO&MMISSIONER DO&MINICK: Yes, thank you,

Page BB
1 Your Honor.
2 I just have some concerns about and as
3 much as I hate to pound sand down a rat hol-e
4 with a penalty, I'm concerned that if we
5 propose alternat.e methods that we are going to
6 get in the huge back and forth with FDEP and
1 that may welgh in on that, Lf I'm understanding
8 it correctly, and that this will- become yet
o
another big negotiation?
10 Or do I misunderstand the nature of what
11 they can do in terms of sort of intervening in
L2 our proposed alternative to the just. payment of
13 fine? I'm concerned about just turning into
t4 another biq negotiation. And f don't think the
15 amount of the penalty it may be worth going
L6 down that pat.h. We'Il- just end up spending
l1 that much more in legal counsel-. I don't know;
18 am I misunderstanding all of that?
L9 MAYOR SCHNEIER: Tom.
20 MR. IIARMER: I'11 be happy to jump in, and

27 then Jack, you guys can respond.
22 But I think this is pretty standard
z3 Ianguage for in-kind projects. They want to
24 review and approve those. And we have to
z5 def ine the benef it and what we woul-d do.

Page 89
1 We havea couple of prolects that we think
2 make sense rel-ated to our wastewater system.
3 They're projects that the Town would 1ikely
4 need to do anyway to do proactive action on the
5 system. We think they're viable but I don't
6 know what the response will be, so there is a
1 little bit of a risk there.
8 But I think our recolnmendation would be if
9 we can spend the money locally, that. would be
10 better. I would think at some point if we came
11 to the commission and said here's what we are
t2 proposi.g, and the commission sald it's not
13 worth the troubl-e, then we can probably at that
74 point still go back and pay the f j-ne.
15 But I think t.he intent would be to spend
l6 it locally for a project here for the benefit
71 of the rate payers on the island.
1B CO&MMISSIONER DO&MINICK: Is our counsel
1.9 in aqreement that this is the preferable course

20 of action?
2I MR. STEINMEYER: We are.
22 And lust to add to what Tom has sai-d, DEP
ZJ does these a lot. They have sort of general
24 rules of what is acceptable and what is not.
Z3 But, you know, it's not a it's usually not a

Paqe 90
1 very contentious or harsh negotiatj-on. It's,
2 hey, what do you think about this? Yeah,
3 that's good. Or flor we prefer to see something
4 else l-ike this.
5 CO&MMISSIONER DO&MINICK: Okay. Wel1, if
6 that's the case then my concern or whatever.
1 MR. STEINMEYER: That's not to say that
B they won't show their colors they have shown in
9 this negotiation and be rude about it.
10 But another benefit also is that if you go
11 the in-kind route versus the penalty route,
t2 there's some stipulated penalties in this
13 consent order that if there are violations in
t4 the future, the stipulated penal-ties apply. If
15 you just pay the penalty, those, in certain
t5 circumstances don't apply if you do the in-kind
71 project route.
1B So that is sort of an added benefit to
79 take that route, that those particular
20 stipulated penalties don't apply.
27 CO&MMISSIONER DO&MINICK: Okay.
22 Thank you.
23 IIAYOR SCHNEIER: Anyone el-se?
24 CO&MMISSIONER DALY: If I might just
25 comment. I think the staff and our counsel

Page 97
1 have done an outstanding j ob. I think t.hey

2 have, ofl our behalf, have squeezed out as much
3 as we possibly could through the settl-ement
4 process here to our benef it. And part.icularJ-y
5 recognizlnq that we have dodged a bi-g bullet;
6 ie, a mandate for a complete redundant line.
1 And I think that's a very significant
8 bullet to dodge here. And it gives us an
9 opportunity on an ongoing basis to continue
10 negotiations, whj-ch is inherent in the deal
11 here.
72 But I thoroughly completely endorse what
13 we have before us.
74 MAYOR SCHNEIER: Ed.
15 CO&MMISSIONER ZIJNZ: I think we were very
t6 fortunate that the spi11 didn't cause more
71 destruction than it did.
1B I.{AYOR SCHNEIER: Yes .
19 I don't see any other hands.

20 I'l-1 just add I want to echo what Ed and
21_ Jack and others by implication that we have
22 been very well represented in this. I feel
)? like we have been kept up to date directly or
.A
indirectly of everything that's been going on.
)\ It's a horrible experience. It's going to

Page 92
1 be horrible for awhile to come. But I think

2 we're on the right track. I think we have left
3 the DEP probably exactly the right point. I
4 think they recognize that we are tenacj-ous and
5 we understand what we're doing here. I think
6 we have assiduously maintai-ned the quality of
1 the operations here and the lack of fault on
B the part of our staff, regardless of some
9 Ianguage that implies the contrary in the
10 consent order.
11 I think we have solved the three most
72 important issues that we had before us at the
13 Iast shade meeting and sol-ved them in a way
l4 that is favorable to us.
15 And I think the posture of if we do if
t6 we are unable to solve the issues that we have
71 that are still openr we will be in a better
1B posture to litigate them three months from now
19 than we coul-d today.
20 So that's my feeling.
2I If there's no other comment, again I would
22 like to thank counsel.
23 We will terminate the shade meeting and go
24 back to reopen our public meeting.
25 Yes, Maggie.

Page 93
1 MS. MOONEY: Before we do, I just want to

2 make sure that the commission is clear on how
)
J this wiII proceed in the open public meeting.
4 There will need to be a motion that
5 authorizest that approves 1et me say it this
6 way it wil-I be a motion to approve the
1 February 18, 202L draft of the DEP consent
I order and to authorize the Town Manager to
9 execute the consent order on behal-f of the
10 Town.
11 We will need a motion to that effect in
T2 the open session.
13 And I am just happy to answer any
74 questions before that, before we go into open
15 session, but. that's the motion that has to be
76 made in the public setting.
71 MYOR SCHNEIER: Okay. Understood.
1B MR. FI\IEjASH: Maggie, if we could, can we
79 use February 20? Simply because DEP

20 transmitted two erroneous documents
2l MS. MOONEY: Sure. I was looking at. the
22 dates that you sent to the commission, but yes,
23 we can use that date.
24 So it wil-f be February 20, 202L
transmittal from the DEP.
Vincent M. Lucent.e & Associat.es 800.282.8215

Page 94
1 MR. FMjASH: Right.
2 CO&MMISSIONER DO&MINICK: Maggie, do we
3 need to make a motion as to whether we're going

4 to pay the penalty or do the in-kind r oy that's
5 just behind the scenes so we don't have to
6 actually approve that?
1 MS. MOONEY: At this point in time we can
I delegate authority as weII to the Town Manager
9 to move forward with the Town Manager and
10 staff to move forward with complying with the
11 applicable deadlines. I don't think that's a
l2 bad idea.
13 So maybe a secondary motion giving
t4 authority t.o Town Manager to
15 CO&MMISSIONER DO&MTNICK: Implement or
t6 MS. MOONEY: Yes, to implement the
1a
LI deadlines and satisfy the deadlines provided
1B for in the consent order. I think that's
l9 probably a better way to ;ust generically do
20 ir.
21 II{AYOR SCHNEIER: Okay. Jack.
22 CO&MMISSIONER DALY: Is there any
.)?
Maggie, is there any need to do more than what
Z4 you said? Any need for any commissioner
)\ discussion or evaluation or comments at the

Page 95
1 open session? f 'm not advocat.ing to do that.

Z I tm just asking the question.
J MS. MOONEY : If the commission so desires,
4 you certainly can.
5 I want to be clear on this. This is a
6 reaIly good point, Commi s s ioner Daly, I'm glad
1 you are raising it.
B Once we execute this consent order, and
9 assuming there are no chal-Ienges to the consent.
10 order by third parties, then we wil-I no longer
11 be in li-tigation with the DEP. And in that
72 context there wilI be no more opportunity to
13 have these types of shade meetings.
t4 So to the extent you want to talk about
15 the consent order now, you certainly can once
I6 in the public forum. I just want to make sure
T1 that the commission appreciates that once the
1B Iitigatlon is over we will not. be having these
t9 shade meetings.
20 MAYOR SCHNEIER: Okay.
27 CO&MMISSIONER DO&MINICK: I feel strongly
22 that we should not engage in discussion any
23 further than letting the document speak for
24 itsel-f .
25 It seems to me that we probably can't help

Paqe 96
1 ourselves by doing that, and we may hurt
2 ourselves by doing that. I defer obviously to
3 what other commissioners think and the Mayor,
4 but I think we should just keep our mouths
5 shut.
6 MAYOR SCIINEIER: Maggie, when wil-I this
1 transcript of today's shade meeting be made
B publ ic ?
9 MS. MOONEY: So we order them with

10 standard delivery time. So whenever the court
11 reporter finally transcribes it. She transmits
72 it to our offi-ce and I transmit it to t.he Town
AJ Clerk. We do not do expedited delivery. We
t4 get it when we get it. So whenever the court
15 reporter can turn it around for us it will
t6 become a public record.
1a
Ed, do you want to talk for just one more
1B second about potential challenges, the
79 challenges period that's availabl-e once thj-s
20 gets executed? I think that's probably a good
27 point because thinking about Commj-ssioner
22 Dominick's comments about refraini-ng about
23 comment is making me think we probably should
24 because there's still an opportunity for
z5 interested parties to challenge this consent

Page 91
1 order. So maybe you can speak to that.

2 MR. STEINMEYER: Yes, that's a good point.
J Once this consent order is fully executed
4 by both the Town and the departmenL, then a
5 notj-fi-cation, there is a requirement of the
6 consent order that. notice of this execution of
1 the consent order be published.
8 And it gives I don't have it in front
9 of me. I can't remember if it is 2L days or
10 L4. I believe it's 2L days for any interested
11 party, any party that can show an impact from
72 the consent order to challenqe its entry.
13 So that can be somebody saying that DEP
74 didn't go far enough and should have done this
15 or done that. It basically is subject to
76 standing principles in terms of the third party
71 has to be injured by the consent order. But
1B there is t.hat window of challenge before the
19 and this is what's called agency actions the
20 agency action wouldn't go final until that
2t challenge period expires without a challenge.
22 MS . MOONEY: So to that poi-nt., it ' s
aa actually 2I days.
24 Just so the commission is all aware, iL is
1tr
27 days from the execution of the petition. So

Page 98
1 until we are at a point where there is no

2 challenges to this, then technically the
)
J litigation is stil-l active and subject to an
4 appeal essentially.
5 our execution of the
}IAYOR SCHNEIER: So
6 consent order, plus 2l days, is when the
1 transcript would actuall-y be available to the
B public?
9 MS. MOONEY: Correct.
10 IIAYOR SCHNEIER: Okay. Anything else?
11 Yes, Ed.
t2 CO&MMISSIONER ZUNZ: We have gone through
13 more t.han two hours of discussion today. And
l4 with so many sides of this thing that have been
15 analyzed and discussed, there is no way we can
16 capture that in a few comments of a public
t1 meeting, and I think it would be best to l-et
18 this sit there.
79 TI{AYOR SCHNEIER: I AgrCC.
20 CO&MMISSIONER DALY: I think that's c1ear.
27 IIAYOR SCHNEIER: Again, T thank you very
22 much, counsel.
z5 I think we need to get the Clerk back in
24 and reconvene. Have a good week.
25 (Publ-ic meeting reconvened. )

Page 99
1 MAYOR SCHNEIER: We will now reconvene and
2 reopen the hybrid special meetingr with the Town
3 Commi-ssionat 4:16 p. m.
4 We have been advised by Town Attorney on
5 what action we need to take in the public
6 setting following our shade meeting.
1 In that respectr maY I have a motion to
8 approve the consent order, dated February 20,
9 202L, in the matter of FDEP versus Town of
10 Longboat Key, File 20-L261, and to
OGC
11 authorize the Town Manager to execute that

t2 consent order.
13 CO&MMISSIONER ZUNZ: So moved.
l4 ITAYOR SCHNEIER: Do we have a second?
15 CO&MMISSIONER DALY: SECONdCd.
1,5 MAYOR SCHNEIER: OkaY.

71 We have a motion and the second t.o
18 authorize the Town Manager to execute the

t9 consent order dated February 20, 202L in that
20 matter.
27 Are there any comments?
22 Seeing none, will the Clerk call the role.
23 THE CLERK: Vice Mayor Haycock?
24 CO&MMISS]ONER HAYCOCK: Yes.
25 THE CLERK: Commissioner Dominick?

Page 100
]
1
CO&MMISSIONER DO&M]NICK: HeTe.
2 THE CLERK: Commissioner Spoll?
3 CO&MMISSIONER SPOLL: Here.
4 THE CLERK: Commissi-oner Daly?
5 CO&MMISSIONER DALY: Yes.
6 THE CLERK: Commi-ssi-oner Zunz?
1 CO&MMISSIONER ZUNZ: Yes.
B THE CLERK: Commissioner Bishop?
9 CO&MMISSIONER BISHOP: Yes.
10 THE CLERK: Mayor Schneier?
11 MAYOR SCHNEIER: Yes.
l2 The motion carries seven to nothing.
13 We'll- request a further motion to
L4 authorize the Town Manager and staff to take
15 a1I actions to implement the consent order and
t6 to satisfy the deadlines contained in that
l1 order.
1B Dolhaveamotion?
t9 CO&MMISSIONER ZUNZ: Moved.
20 MAYOR SCHNEIER: ANd a second?
27 CO&MMISSIONER DALY: Second.
22 ITAYOR SCHNEIER: It's been moved and
23 seconded to authorize the Town Manager and his
24 staff to implement the consent order we
25 approved today.

Page 101
1 fs there any discussi-on?
2 Seeing none, will the Clerk call the role.
3 THE CLERK: Vice MaYor HaYcock?
4 CO&MMISSIONER HAYCOCK: YCS.
5 THE CLERK: Commi-ssioner Dominick?

6 CO&MMISSIONER DO&MINICK: Here.
1 THE CLERK: Commission SPoII?
8 CO&MMISSIONER SPOLL: HCTC.
9 THE CLERK: Commissioner DaIy?

10 CO&MMISSIONER DALY: YCS.
11 THE CLERK: Commissioner Zunz?

t2 CO&MMISS]ONER ZUNZ: YCS.
13 THE CLERK: Commlssioner Bishop?

74 CO&MMISSIONER BISHOP: YCS.
15 THE CLERK: MaYor Schneier?

t6 I'{AYOR SCHNEIER: Yes .
71 The motion carries seven nothing.

1B Thank you everyone for your help today.
I9 And we are adlourned at 4zL9 p.m.
20 (Conclusion of Proceedings at. 4:79 p.m. )
2t
22
ZJ
24
25

Page 702
1 REPORTER I S CERTIFICATE
3 STATE OE FLORIDA )
4 COUNTY OE SARASOTA )
tr
1 I, DENISE MAGLICH-STONE, Court Reporter, certify

I that I was authorized to and did stenographically report the
9 proceedi-ngs herei-n, and that the transcript, pages 1-102, is
10 a true and compfete record of my stenographic notes.
11
1a
I further certify that I am not a relative,
13 employee, attorney, or counsel of any of the parties, nor am
l4 I a relative or employee of any of the parties' attorney or

15 counsel connected with this action, nor am I financially
l6 interested i-n the action.
l1
1B Dated this 2nd day of March, 202I

19
2A
2\ l)t*r+, i*'!ft*n-
22 DEN]SE MAGLICH-STONE
Court Reporter
23
24
25

Page 103
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Page 104
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Vincent M- Lucente & Associates 800.282.ri275

Page 105
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TOWN OF LONGBOAT KEY

FDEP Ad m i n istrative Action
OGC Case Number: 2O-L26L
Ste i n m ey e r F iv e a s h LLP Affo rn ey- Cl i e nt P re s e ntoti o n

to the Town Commission
February 22,202L
CO\FiDEITIAL - ATTCRNEY ViCRK ?RODUCT

Proposed FDEP Consent Order ("CO"):
L. Most Significant CO lssues
STTMMLYER
2. FDEP Changes to CO
3. Summary of FDEP Changes Regarding
FTvTRSH LLP Significant lssues
4. Options (Accept or Reject CO)
5. Legal Expenses to Date
..:
CONFIDEI\T:AL . ATTORIi :Y WCRK PRODUCT /

Most Significant CO lssues (Discussed with
Town Commission on January 5,202L):
1. Requirement to develop plan to construct
redundant line or an "equally effective method for
STgMMEYER tra nsfe rri ng wastewate r"
FruEASH LLP 2. Penalty assessments for repairs within utility

easement and penalties at top end of matrix range
3. Making CMOM an enforceable requirement of
CO
4. Restrictions on use of bonded funds
i.( )
CCI,: FIDENT:AL. ATTCRNEY V/C PRCDUC;
lssue l-: Redundant Line Obli gation
. Before: Requires the Town to develop and
implement a plan to install a redundant wastewater
line or an "equally effective method for transferring
STTWMEYER wastewater."
FruTasH LLP . After: Requires the Town to develop and implement
a plan detailing the steps the Town wil! take to
ensure the safe transmission of wastewater.
CCNai)EN:iAL - ATTCRNaY V\i ORK PROf UCT 4

lssue 2: Penalties for Utility Easement lmpacts
and at Top of Range
. Before: The FDEP has included the Town's utility
easement area in the calculation of the
unauthorized fill and mangrove impacts and
imposed the maximum penalty. The FDEP also is
requiring the Town to purchase .30 saltwater
forested mitigation credit in the Nature Coast
STTNMEY,ER Mitigation Bank (a bank that is not even in Sarasota
Bav).
FryEESH LLP
. After: The FDEP has excluded the impacts within the
easement frorn the penalty calculation but
maintained the penalties at the top of the range.
Also, due to subsequent mangrove die-off, the FDEP
is requiring a UMAM analysis of the leak area and
purchase of mitigation credits necessary to offset
the impacts.
CCNTIDiNTIAL - ATTOANEY WCE( PROf UCI

lssue 3: Enforceable CMOM
. Before: The FDEP is requiring the Town to prepare
and submit a Capacity, Management, Operation and
Maintenance ('CMOM") analysis to the FDEP and
STpMMEYER seeks to make its provisions enforceable under the
FruTASH LLP co.
. After: The now is only requiring that the Town
FDEP
prepare a more limited and narrower O&M Manual
and maintain compliance with it.
CC;\ FiD:i\JTIAL. ATTCRN EY W3RK NACO JC-i r

lssue 4: Fund Usa ge Restriction
. Before: The FDEP is restricting the use of funds
obtained by the Town from the collection of sewer
rates for any purpose not related to the
management, operation, or maintenance of the
STTMMEYER Town's sewer system or to any capital improvement
FIVEESH LLP needs of the sewer system.
. After: The FDEP has modified the restriction to
allow use of funds for "other lawful purposes of the
Sewer System."
'7
CON FIDE}JTIAL - ATTORN EY iryOR( ?EOD'iCT
Summary of Status of Significant lssues:
t. The requirement to construct a redundant line has
been removed.
2. The penaltv amount is the same, but activity
within the Ltility easement is not included in the
STpWMEYER calculation. However, the FDEP is requiring
mitigation for the impacts within the easement.
Fwr,esH,LLP 3. The CMOM requirement has been revised to
require an O&M Manual.
4. The restrictions on use of bond funds have been
removed.
CONF;DENTIAL - ATTORN:Y'./i CRK PRO)UCT o

Options:
7. Execute the proposed CO as transmitted by the FDEP on
2/20l2L
STTWMEYER 2. Attempt to continue to negotiate the CO with the FDEP

FTEnSH LLP on any remaining issues (the FDEP has stated that this
version is its final offer for settlement)
3. Litigate with the FDEP over legal authority to impose

certain conditions and factual findings
CONFIDENTIAL - ATTORNEY vtCRK .3RCDUCT

Legal Expenses:
STTwMEYER
Persson, Cohen & Mooney: (through 7/37/27\ s38,569.80
FIvueSH LLP Steinmeyer Fiveash LLP (through 1,/3L/271: Sat,ssz.tz
Total: 5to6,tzt.gz
.:]
CONFiDENTIAL. ATTORN EY V/CRK PiCDUC? i0

Estimated Future Legal Fees (excluding expert
witness fees and other costs):
. Negotiate to CO resolution -$11,500/mo. av.

. Litigate (est. 8 to L5 months) -S2s,ooo/mo. av.
Note: Rejecting the proposed CO and litigating an enforcement

action could result in the FDEP attempting to impose more and
larger penalties and more extensive corrective actions.
CCNFiDiNTIAL - ATTO3NEY V./CRK PiC)iJCT '1

Recommendation for Next Steps (by Legal
STgMMEYER Counsel and Town Manager):
FIVTaSH LLP
. Accept the FDEP's proposed Consent Order as
p rese nted
CONF;r:ftTlAL - ATTO,?NEY Y,TORK P3SrUCT

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PERSSON, COHEN &MOONEY, P.A.

ATTORNEYS AND COUNSELORS AT LA\fl

VI-A U.S. MAIL

Re: FDEP u. Town of Longboat Key, OGC File No. 20-1261

If you have any questions, pleirse do not hesitate to c()T'ltact me.

I-akewood Ranch Venice

TOViN OE LONGBOAT KEY TOWN COMMISSION

APPEAR;N{CES KENNETH SCHNE]ER, MAYOR

MIKE HAYCOCK, VICE MAYOR

JACK DALY, COMMISSIONER

SHERRY DOMINICK, COMMISS]ONER

TOM HARMER, TOWN MANAGER

MAGGIE MOONEY, TOWN ATTORNEY

EDWARD STEINMEYER, ESQU]RE

Vincent M. Lucente & Associates 800.282.8215

1 operate under a national state and locaI state

800 .282 .8215

1 of the public record and continue to Zoom to

Vincent M. Lucente & Associates 800.282.8275

1 hold a hybrid attorney/client session as

9 COMMISSIONER DALY: Moved.

2t THE CLERK: Commissioner Zunz?

Vincent M. Lucente & Associates 800.282.8215

1 COMMISSIONER DOMINfCK: Here.

4 Mot j-on passes.

16 Attorney David Jackson; and litigation counsel

1B Steinmeyer and John Fiveash.

2t Commission chambers during the shade meeting.

24 Commission chambers. Two or more memloers of

Vincent M. Lucente & Associates 800.282.8215

1 counsel- willbe appearing via Zoom. A

20 II{AYOR SCHNEIER: If I recal-l correctly

Vincent M. Lucente & Associates 800.282.8215

1 MS. MOONEY: That. would be great.

Vincent M. Lucente & Associates 800.282.8215

1 dialogue that occurs relative t.o the consent

Vi-ncent M. Lucente & Associates 800.282.8215

Vincent M. Lucente & Associates 800 . 2 82 -821 5

1 COMMISSIONER SPOLL: Can I ask You to

71 able to hear. Please, speak up.

2t to trail off into nothing. Thank you.

Vincent M. Lucente & Associates 800.282.8215

Vincent M. Lucente & Associates 800.282.8215

1 that the department had placed restrictions

Vincent M. Lucente & Associates 800.282.8215

20 entertain questions issue by i s sue, if you

Vincent M. Lucente & Associates 800.282.8215

1 of describe what you think this will look like?

Vincent M. Lucente & Associates 800.282.821s

Vincent M. Lucente & Associates 800.282.8275

1 talked about having a kind of an our

Vincent M. Lucente & Associates 800.282.8215

8 additional gauges and they've been cooperative.

Vincent M. Lucente & Associates 800.282.8215

1 We needto figure out how exactly to move

15 COMMISSIONER BISHOP: I was just testing

Z) Are there any other comments or questions

Vincent M. Lucente & Associates 800 -282.821 5

3 what we have here is not a mandate but

7 what wiIl be the consequences?

27 are unable to agree or refuse to agree, then

Vincent M. Lucente & Associates 800.282.8215

Vincent M. Lucente & Associates 800 .282.821 5