New year brings new skirmishes in island battle

As 2009 rolls forward into 2010, the county is still spending thousands of dollars and hundreds of man hours on the question of whether utilities will be allowed on No Name Key.

And that’s a situation that must come to some resolution very soon, says new County Mayor Sylvia Murphy.

“There are a host of documents that tell us we (Monroe County) can’t allow utilities to No Name Key. This should have been over a year and a half ago,” she said.

Murphy was just one of the commissioners who last month chastised county staff for attempting to send a letter to Keys Energy Service giving the power supplier carte blanche from the county to start building power lines to No Name Key, one of the most environmentally sensitive islands in the Keys.

In every vote taken on the matter in the last 14 months, the BOCC has either asked for the matter to be shelved or voted not to allow utilities to go to the island.

And yet the issue keeps coming back to the BOCC in some form month after month, says Murphy.

“I don’t understand it,” she says.

The issue is expected to come before both the Keys Energy Service and Florida Keys Aqueduct Authority boards of directors in the coming days, though both of them are still waiting on the US Fish & Wildlife Service to chime in on the feasibility of power, water and central wastewater to the island.

Power battle gets twisted again

The latest saga surrounding power to No Name Key involves the county staff, despite the BOCC’s consistent votes to uphold county land use policy and deny extension of commercial power to no Name Key, issuing an opinion that the county’s wishes mean nothing in the grand scheme of things, and that the utility can, at its own initiative, build what it wants when it wants over county rights-of-way.

That opinion is based on the state legislation that established what was then City Electric System and is now Keys Energy, according to County Attorney Suzanne Hutton. She claims that the state legislation establishing Keys Energy takes the county and its rules out of the picture.

That state legislation gives the Board of Directors of Keys Energy full authority to manage the utility, and, opines Hutton, full authority to use county rights-of-way without county permission.

That is a different opinion from what Hutton gave the BOCC last summer when she told the commissioners that Keys had the authority to use the rights-of-way either by negotiation, purchase or eminent domain.

The legislation also does say that the utility has the ability to build, construct, expand or purchase other utilities using negotiation, purchase, gift or eminent domain.

That Keys Energy has absolute authority to build over public rights-of-way without county permission is not something most others involved in the issue buy off on readily.

“I absolutely don’t believe the county has no say in how its right-of-way is used,” said Murphy. “Particularly when there are so many other documents that point in the other direction.”

Even other attorneys involved in the issue tend not to agree with the county’s position.

“There is no statutory or constitutional right,” for commercial power on No Name Key, opines Everglades Law Center Director Richard Grosso.

Grosso also says that the county has a valid power to regulate land use within its borders granted by state statute.

His opinion is backed by the court system which ruled in the 2002 case where No Name Key landowners again sought commercial electrification of the island that there is no statutory or constitutional right to commercial power, and in fact is a valid power for the county to police land use within its jurisdiction.

Grosso says state law also gives the county power to regulate use of its roads and rights-of-way.

As part of its checklist of things that would have to be done before power poles could begin to go up on No Name Key, Keys Energy said it would have to have permission from the county to use its rights-of-way and to attach to No Name Bridge.

“This just needs to stop,” said Murphy. “There are valid reasons why there is no commercial power on No Name Key.”

Commissioner Kim Wigington holds much the same opinion as Murphy.

“We have already litigated this question, and the county was told it had no obligation to allow commercial power to No Name Key. Now, if we follow this advice, we’ll be litigating against the position we litigated the first time,” said Wigington. “I for one don’t want the taxpayer to pay to fight against what they’ve already won in court.”

Both No Name property owners and the county attorney also claim that the BOCC adopted a resolution in 1951 that gave Keys Energy county approval to use its rights-of-way for the installation of electrical power.

Even that is possibly subject to a different interpretation, according to Grosso.

The resolution may not even still be in force because the county government has adopted several ordinances since then that prohibit extension of power lines to No Name Key, and each of those invalidated any ordinances before them that were in conflict.

He also points out that the resolution gave permission for the roads and bridges under the county’s jurisdiction at that time. The bridge to No Name Key that exists today was built in 1968.

Water faces its own hurdles

The same type of convoluted fight has sprung up around the possible expansion of water to the island.

County land use regulations and the Florida Keys Aqueduct Authority operating regulations prohibit the extension of water supplies to No Name Key.

Yet homeowners there have asked for water, claiming that the water they get from their cistern isn’t healthy.

FKAA admits it has a statutory responsibility to supply potable water to areas where none exists, and asked for an opinion from the local Department of Health on the use of cistern water.

Bob Eadie, DOH director, answered that there is no general risk associated with the use of cistern water for potable supply, and that it is being done successfully in many areas of the county now, as well as many areas of the country.

Eadie said that his department is always willing to test individual drinking water supplies for compliance with health codes, but has as yet not been asked to perform that test.

Not satisfied with that answer, the property owner has demanded that FKAA get two more opinions on the potential health hazards of cistern water, including one from the state Department of Environmental Protection.

A microbiologist with the state DEP has already responded, although that letter wasn’t forwarded as part of the latest package demanding water supply. In that letter, it was reiterated that cistern water has never been proven to be harmful if properly installed and maintained, and also pointed out that the majority of cistern users feel as though their water is as good or better than what they get from public utilities.

The big guns have yet to fire

Internal squabbles aside, and the threat of lawsuits flying fast and furious if residents don’t get power, water, sewer or all three, the federal government hasn’t yet weighed in on the fight, primarily because until very recently they hadn’t been asked.

Monroe County, the state Department of Community Affairs, the state Department of Transportation and the US Fish & Wildlife Service spent six years hammering out a plan to protect endangered species, and the habitat for such, on Big Pine and No Name Key. Under the terms of that plan, the federal service, which has oversight authority over land use that impacts endangered species and the habitat for that species, allows limited human development over the next 17 years in return for habitat mitigation, generally in the form of land purchased for perpetual conservation.

Even though residents of the island don’t consider utilities to be development, the federal agency does, and is now putting together a report on what it will require before poles and pipes can go up or down.

USFWS officials have already said that someone will have the liability to meet the terms of the federal guidelines imposed by the Habitat Conservation Plan. If the county wishes to be the applicant, it can take on the responsibility. If the county wishes to pass along the applicant stick, someone else will be responsible for meeting any federal guidelines for placing poles and pipes.

“There is no doubt in my mind that this issue will only be resolved by litigation,” said Wigington. “The best thing we might do is step out of it until the decision has been made by the courts.”

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One Response to “New year brings new skirmishes in island battle”

Comments

1. Sal Jan 25 2010 / 9pm

   Talking to these idiots is useless(Wigington/Murphy). The powers that be in Big Pine and other treehuggers idiots in the county put these two in office, together with idiot #3(Neugent)makes even continuing a dialog with this trio an exercises comparable to that of urinating in a 40 knot wind. The only thing this county will follow is something coming from a court ruling. I quit trying to talk to commissioners years ago….I suggest a big fat Federal Law suit.