Flagler Estates Concerned Citizens, Inc.

Greetings from Flagler Estates!

The residents here are quite concerned with the potential problems in our waterways and would like to proceed it a responsible manner.  It is unfortunate that many of us have lost confidence in out local government tasked with overseeing our roads and drainage system. Because I have the great fortune to work for  County Extension, when questions arise, I can usually find knowledeable people connected to UF to answer my questions.  I also serve as support staff to the Soil and Water Conservation District and have found helpful resources through them.

Flagler Estates is an affordable housing, Community Redevelopment Area that, because of our special district status, carries a very large tax burden. We recently came together as a community in hopes of finding some tax relief and what we have discovered has sent up many warning indicators.  For more information on our dilemma, please visit www.flaglerestatesconcernedcitizens.org.  There, you will also find many pictures that illustrate our severe and ongoing erosion problems that were exacerbated by recent paving activities.

Residents have attended the DEP meeting in Palatka regarding TMDLs and the September 3, 2009 meeting.  I attended the Palatka meeting and listened to a recording of the Tallahlassee meeting.  Both have been summarized on the website. 

The reason that I am approaching you regarding our concerns is that we do not trust the intentions of the engineer employed by the District.  I assure you we ALWAYS bring our corncerns to the attention of our elected Board and are in the process of electing a more receptive Board that is less swayed by very confusing information/mis-information put forth by said engineer.  In the interim, we the people are paying close attention.

Much of Mr. Kelter's report from September 10, 2009 is about a telephone conversation between you and District staff.  Because, we were unable to hear first hand what transpired, we turn to you for clarification. Here are my questions. I will attach the relevant portion of the Engineer's Report below.

1 - Non-additive clause - What is this?  It has been my understanding that, since the beginning of this process, we cannot be held accountable for pollution we do not cause. Is my interpretation correct and do we need to thank Mr. Kelter for this clause?

2 - The "comfort" letter.  This sounds like a good idea as does testing the water leaving our jurisdiction.  Will this lead to the reclassification of the creek? 

3 - It seems to me that, potentially the only reason 16-Mile Creek is so immersed  in this process is due to Mr. Kelter inserting us into the process while he was representing other entities. I fear he is trying to over-commit us. Is this correct? Please note that the UF Doctor who has kindly been directing me was very clear that regulation is coming everywhere and that severed or sovereign, we WILL have to meet standards.

4 - Sniff test.  Is this a true and quantifiable test?

The residents of Flagler Estates wish to be good stewards of our resources.  We just cannot afford to be misled. Your insight would be much appreciated.

Sincerely,

Kathy Fisher

Secretary - Flagler Estates Concerned Citizens

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Some of the questions arise from the September 10, 2009 Engineer Report.

This report can be found at http://www.ferwcd.org/CER_0091009.pdf (Sorry! I could not get the link to work)

Other concerns arise from the DEP Meetings.

RESPONSE FROM FDEP:

In your September 17, 2009 e-mail regarding the recent Dissolved Oxygen/Nutrient Total Maximum Daily Load (TMDL) that the Department developed for Sixteen Mile Creek you posed four questions.   Our responses to address those questions follow:

1 - Non-additive clause - What is this?  It has been my understanding that, since the beginning of this process, we cannot be held accountable for pollution we do not cause.  Is my interpretation correct and do we need to thank Mr. Kelter for this clause?

Response:   I believe you have raised two distinct issues.  The first has to do with the language in the proposed the Sixteen Mile Creek TMDL rule in paragraph (f) [i.e., 62-304.415(43)(f), Florida Administrative Code] that was included to provide assurance that those parties that have undertaken pollutant reductions (or have made firm written commitments to do so) as part of the recently adopted Basin Management Action Plan ( the “BMAP”) for the Lower St Johns River will not be obligated to reduce by an additional amount if the original commitment also serves to restore water quality in the Sixteen Mile Creek basin.  We had received several comments, including those from Mr. Kelter, asking that this assurance language be included in the rule to prevent unnecessary expenditure of funds by taxpayers and homeowners.  This language appears in several of the other rules for basins that are tributaries to the St Johns River.

Your second possible issue goes to determining what you (Flagler Estates) are responsible for.  In all of our TMDL documents we attempt to identify potential sources that are contributing to the pollutant(s) causing the impairment (Chapter 4).  Chapter 6 of each document describes how the TMDL is allocated among point sources and nonpoint sources (load allocation).  Point source loads are broken out into separate subcategories for wastewater discharges and stormwater discharges regulated under the NPDES Program.   The following language is found under the NPDES Stormwater Discharges subsection:

It should be noted that any MS4 permittee is only responsible for reducing the loads associated with stormwater outfalls that it owns or otherwise has responsible control over, and it is not responsible for reducing other nonpoint source loads in its jurisdiction.

That language has been included in our documents for a number of years and is not a recent addition.  It is our understanding that the Flagler Estates Road and Water Control District does not have a municipal separate storm sewer system (MS4) permit, however St. Johns County does have a Phase II MS4 permit.

All urbanized land uses typically contribute pollutant loads (e.g., lawn fertilizing, failing septic tanks, and pet waste may all contribute to varying degrees), although many responsible entities in Florida have already taken steps to minimize or at least reduce their contributions.  As part of the BMAP process which has yet to begin for these latest TMDLs, stakeholders will have an opportunity to discuss what has already been done, as well as what else needs to be done in order to restore waters like Sixteen Mile Creek such that it meets it water quality standards.  In my discussions with Mr. Kelter, I have gotten the impression that Flagler Estates and its board have been very active in improving conditions in your area, particularly with emphasis on flood prevention.  However, improving water quality often requires different measures, but we have no site-specific knowledge of what else needs to be done at this time.

2 - The "comfort" letter.  This sounds like a good idea as does testing the water leaving our jurisdiction.  Will this lead to the reclassification of the creek?

Response:  A copy of the September 11, 2009 letter that Mr. Bartlett sent to Mr. Kelter following the Adoption Hearing is attached.  The letter discusses a monitoring location at SR 13, but does not indicate that Sixteen Mile Creek will be reclassified.  However, it is also possible that you may have been thinking about an issue we discussed with Mr. Kelter regarding whether the waters within Flagler Estates are “jurisdictional,” i.e., are they “waters of the state” or “waters of the US.”  If waters are not considered to be jurisdictional, then water quality standards cannot be applied with the non-jurisdictional area.  However, even if this were the case, pollutant loads leaving the non-jurisdictional areas still can’t cause or contribute to problems in waters that are jurisdictional.  Mr. Kelter has attempted to make a case to show jurisdiction should be severed in this case, but the Department’s preliminary determination is that the waters within Flagler Estates are jurisdictional.  The comfort letter signed by Mr. Bartlett was intended to side-step this area of potential disagreement, as the status of these waters was immaterial to setting the TMDL.  Either way, reductions are required.  To avoid needless delay, the Department simply agreed to set the restoration compliance point at the monitoring station that previously showed the highest problem rate, which is near the confluence of Sixteen Mile Creek and Deep Creek, and just beyond the boundary of Flagler Estates.

3 - It seems to me that, potentially the only reason 16-Mile Creek is so immersed in this process is due to Mr. Kelter inserting us into the process while he was representing other entities.  I fear he is trying to over-commit us.  Is this correct?  Please note that the UF Doctor who has kindly been directing me was very clear that regulation is coming everywhere and that severed or sovereign, we WILL have to meet standards.

Response:  We have no knowledge of which other entities Mr. Kelter represents or what specific commitments have been discussed with your board, so it would be inappropriate to offer a comment.  As noted previously, both a nutrient TMDL and Basin Management Plan have been adopted for the Lower St. Johns River Basin that included tributaries such as Sixteen Mile Creek.   The reason for setting these TMDLs is due to a Consent Decree between the US Environmental Protection Agency and Earthjustice.   Sixteen Mile Creek was identified as a water to be studied further under this legally binding agreement.  The Florida Department of Environmental Protection has been authorized to be the lead agency to assess surface waters within Florida and if they are determined to not meet water quality standards, we must list them as “impaired” and then prepare TMDLs to set the reduction in pollutant loads needed to restore them.  For example, under the mainstem nutrient TMDL, 30 percent reductions in anthropogenic total nitrogen (TN) and total phosphorus (TP) loads from contributing watersheds to the Lower St. Johns in the freshwater portion (including Sixteen Mile Creek and Deep Creek) were required.  The Sixteen Mile Creek TMDL evaluated the improvements to dissolved oxygen and nutrients in the Sixteen Mile Creek WBID based upon a 30 percent reduction in TN and TP concentrations.  The intent was to determine whether obligations to reduce TN and TP under the MS4 and load allocation already adopted thru the mainstem nutrient TMDL and BMAP were sufficient to address the impairment identified in Sixteen Mile Creek.  This TMDL is not yet adopted, as it must complete the state’s rulemaking process and receive approval from the US EPA.

4 - Sniff test.  Is this a true and quantifiable test?

Response: Could you elaborate as to the context of this question? (This will be done in follow-up)

As you indicated, we all wish to be good stewards of our resources.  Part of our responsibility is to assess those resources, identify areas where those resources have been impaired, and work with stakeholders to restore those resources so that all of the designated uses are maintained.  As discussed during the public meeting in Palatka, once a TMDL is adopted the BMAP process engages stakeholders to determine what recent actions have been implemented, what actions are planned and what additional actions need to be taken, and by whom to ensure that water quality standards and designated uses are restored and maintained.   We look forward to working with you to improve water quality in your area.

Please feel free to contact me... (Contact information)