In a 3-1 vote during a special public meeting on Monday, June 24, Gulfport City Council voted to approve a resolution authorizing the finalization of a settlement in a lawsuit related to “sewage infrastructure failings” that was filed against the municipality by multiple plaintiffs on January 4, 2017.
Mayor Sam Henderson, Vice Mayor Paul Ray and Councilmember Dan Liedtke voted in favor of the measure while Councilmember Michael Fridovich voted against it. Councilmember Christine Brown was out of town on a prescheduled family vacation and did not attend the meeting.
Plaintiffs in the suit are Suncoast Waterkeeper of Sarasota, Our Children’s Earth Foundation, which is headquartered in Napa, California with a satellite office in Palm Beach, and the Ecological Rights Foundation of California.
According to documents filed in the United States District Court for the Middle District of Florida Tampa Division, the plaintiffs claim that the city has violated the federal Clean Water Act.
Following standard legal protocol, City Attorney Andrew Salzman advised councilmembers and city staff on June 24 to continue their silence on the topic of the lawsuit because even with approval of Resolution 2019-32, “litigation is not over” for at least another 45 days. Negotiations regarding terms including fines and outstanding penalties continue.
During the more than two years of pending litigation, detailed terms of a settlement have been discussed between legal council and councilmembers in what are called “shade meetings” that by law are not open to the public. The June 24, 2019 resolution vote was “in the sunshine,” or open to the public, but settlement details were not formally planned for public release at that time.
According to recent documents filed in the United States District Court for the Middle District of Florida Tampa Division, Gulfport has been under court order to take action in the suit.
On June 11, 2019, records state, “the court cautions the parties that there will be no further extensions to deadlines should the city council not approve the settlement or should the mayor not execute the settlement agreement by July 19, 2019 at noon.”
If the deadline is met, records state the court will resume ruling on pending motions in the case, if needed.
Settlement Details Revealed
During the formal council comments or questions segment of Monday’s meeting, Fridovich repeatedly asked Kevin Hennessy, the litigation attorney that has been retained by the city, for clarification on several key points of the settlement resulting in details being made public.
Fridovich asked, should Gulfport experience a sanitary sewer overflow (SSO) between execution of the stipulated settlement order and its termination date while it is in the process of trying to fix the problems, would the city be liable for payment of penalties?
“It’s going to be based on the specific situation that occurs,” said Hennessy. “Fundamentally, it’s going to be based on whether it is beyond your ability to control. The reason why they just don’t say, ‘Hey, you’re excused any time you have a weather-related event’ is because some of the problems that you’ve experienced have been due to the fact that there is a need for you to upgrade your system to protect against weather” events.
Hennessy explained that if a penalty comes down from the Florida Department of Environmental Protection (DEP), that fine “will offset the penalty that you’d have to pay pursuant to this settlement agreement. So, for example, if you had an SSO with less than 1,000 gallons and the DEP fines you $200 for that, then you wouldn’t pay anything to Tampa Bay Estuaries” Program (TBEP).
Previous settlement terms would have required the city to pay into a fund controlled by the plaintiffs, said Hennessy.
Created by the U.S. Congress in 1991, the Tampa Bay Estuary Program’s website states that its mission “is to build partnerships to restore and protect Tampa Bay through implementation of a scientifically sound, community-based management plan.” Tampa Bay is Florida’s largest open-water estuary in “a rapidly growing region supporting more than 2.3 million people.” Congress designated it as an “estuary of national significance” in 1990. (For more information, visit tbep.org.)
Next, Fridovich asked about the living shoreline project that is part of the Breakwater Park effort that councilmembers and staff have been discussing for more than one year.
“If we ended up not going through with [the living shoreline], what happens?” said Fridovich.
The city has the option of two public interest projects, said Hennessy. The city can go through with the living shoreline project or pay $25,000 to the TBEP.
Regarding fees and costs for plaintiffs’ attorneys and expert witnesses, Fridovich asked if the $649,000 figure was final.
“The $649,000 is a total number,” said Hennessy. “The only expenses and costs that remain in this lawsuit are your insurance company’s payment of my fee and the experts we have retained.”
During the question and answer exchange, what is called a “bypass project” component was mentioned. It involves a lift station component in Gulfport’s system that has the required approval of the City of St. Petersburg. Gulfport contracts with St. Petersburg for wastewater services including treatment.
“Your staff was instrumental in getting that approval” for the bypass lift station project, said Hennessy.
Fridovich then asked if the plaintiffs are in agreement with the current terms of the settlement “or are they going to try to make changes?”
“This is the one and only deal,” said Hennessy. “They understand that this will be executed tonight by your mayor and myself and they will be required to sign it and have already indicated their intention to do so by signing the prior draft that we had of the terms sheet.”
When Will the Lawsuit End?
Hennessy explained that the judge is going to retain jurisdiction to make sure the city and the other parties abide by the lawsuit settlement agreement. The city must complete the bypass project; do an additional environmental project, which is likely to be just a payment of $25,000; and must submit a statement that there are not any fines or penalties outstanding.
“If that all occurs, as early as you can get all of that accomplished, you can petition the court and they will terminate the agreement,” said Hennessy.
Mayor Henderson summed up the meeting by saying to Hennessy, “You said from the beginning, ‘If no one is happy, then it probably worked out pretty well.’ I don’t think any of us are happy. And, that’s not a reflection on you. It’s far, far improved from what we had been offered us last time.”
Hennessy said, “To the extent that it makes you feel any better about this, the other side has come kicking and screaming” into this settlement agreement.
