Permits still a maybe for No Name power

County staff last week came to the conclusion that should Keys Energy, or Florida Keys Aqueduct Authority at a later date, need to place transmission lines or poles for commercial power or water for No Name Key residents anywhere other than existing rights-of-way, the two agencies might well have to negotiate with the federal government themselves for the right to do that.

“If parts of the project(s) have to go outside the scarified rights-of-way, I feel as though Keys Energy would need a new Incidental Take Permit for that activity,” said Christine Hurley, the county’s Growth Management Director.

The need for that interpretation comes about as a result of a Keys Energy proposal for extending commercial power to No Name Key that includes drop poles for homes that would be more than 75 feet from the right-of-way.

“That would put the poles on private property, or publicly owned property,” said County Attorney Suzanne Hutton, “and would initiate the regulations of the Incidental Take Permit.”

The ITP is a federal development permit issued to the county that allows for limited human development on Big Pine and No Name Keys in exchange for mitigation, usually in the form of land purchased for perpetual conservation on those islands.

The path to that interpretation has been a convoluted one.

According to Hutton, state statute does not define infrastructure development such as utilities as development. There is also case law that suggests the county cannot deny a utility access to existing rights-of-way for extension of its product.

The county’s own comprehensive land use plan policy says the Board of County Commissioners must “discourage” the extension of utilities to No Name Key.

And that’s not the same as prohibit, but there is language in the land development regulations that specifically prohibits the extension of utilities to No name Key.

That then becomes a question for further review, says Hutton, to determine if the LDR can be stricter than the comprehensive plan.

Any county regulations aside, however, it is the opinion of both Hutton and Hurley that the extension of power to No Name Key is not a covered activity under the ITP. They also agreed that any impacts to the endangered Silver Rice Rat, Stock Island Tree Snail or the Garber’s Spurge, all of which reportedly call parts of No Name Key home would not be covered by the county’s agreement with the US Fish and Wildlife Service that is the ITP.

“Similarly, any mitigation (for that species impact) required as a result of the proposed electric installation would not be the county’s responsibility,” said Hutton in a letter to Keys Energy last week.

USFWS has asked that KEYS, or the No Name Key Property Owner’s Association, which is the applicant for commercial electricity, complete a study on the prevalence of those three species in the projected path of the electrification project so the service can assess any potential impact and determine any possible mitigation.

KEYS officials have said that anything required by USFWS outside of the design and engineering of the project will have to be completed by the property owner’s association.

If, down the road, USFWS and KEYS, along with the NNKPOA, come to an agreement that allows the extension of power poles to the island, there still remains the question of whether Monroe County can issue permits to the homeowners to hook into the lines.

Once the project leaves the right-of-way, county regulations come back into play, says Hurley.

And Hutton says she still needs to do more research to see if the prohibitions contained in county land use regulations will mean that the county must deny permits to homeowners to get the electricity from the passing wires to their homes.

“We don’t yet have enough information to make that call,” said Hutton.

Of course, there is also one other stumbling block for No Name Key residents. Each property owner that requests a building permit for the hook-up of electrical power will then be subject to the county’s downstairs enclosure inspection rules.

“No one is exempt from that requirement,” said Hurley.

KEYS officials announced they are nearing completion of the surveys requested by USFWS for habitat impact reviews.

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One Response to “Permits still a maybe for No Name power”

Comments

1. Doug May 19 2010 / 6am

   Does the disruption caused by one time installation of power poles really equate to the daily and continual pollution produced by residents to produce power to supplements the requirements of daily life. Absolutely not. If the environmentalists are so concerned about the long term impacts caused by humans, they would allow power installation. I have personally witnessed the smoke belching out from the ineffecient diesel generators and consider it a travisty of this wonderful island. I am willing to bet that the opposed residents, mostly snowbirds, also add their share of pollution with their generators too. Shame on all who hide behind this “protectionist” banner. Maybe they should concentrate their efforts on off shore drilling instead.