At the request of City Attorney Andrew Salzman at their regular meeting on Tuesday, June 18, Gulfport City Council approved a special public meeting on Monday, June 24 at 5 p.m. to consider a resolution relating to their ongoing lawsuit with Suncoast Waterkeeper (SCWK) and others for what the plaintiffs describe as “sewage infrastructure failings.”
“We’ve been contacted by our attorney Kevin Hennessy,” said Salzman. He “would like a special meeting of the board” and “was hoping for next week, if possible.”
Council unanimously agreed to schedule the June 24 session though Councilmember Christine Brown will be out of town on vacation.
“Of course, we would not ask you to cancel family” time, said Mayor Sam Henderson to Brown.
“I don’t want to miss it but I don’t want be the reason you don’t have” the special meeting, said Brown.
Henderson noted that since the lawsuit resolution was initially scheduled for the July 2 regular council meeting and that otherwise, that meeting’s agenda is not “heavy,” he asked if that session could be canceled since it is in close proximity to the July 4 national holiday festivities. Council unanimously agreed. The next regular meeting of the council will be Tuesday, July 16 at 7 p.m. Gulfport City Council meetings are conducted at City Hall, 2401 53rd Street S.
Why the Lawsuit
Justin Bloom, executive director of SCWK and the lead attorney for the plaintiffs in the suit filed on January 4, 2017, told the Gabber in December 2016 that the failings “are a regional problem in municipalities throughout the Tampa Bay area.”
Gulfport contracts with the city of St. Petersburg for wastewater services including treatment. When treatment systems are overwhelmed during weather events, spills may occur with discharges into water areas adjacent to the Gulf of Mexico such as Tampa Bay, Clam Bayou and Boca Ciega Bay. The latter two border Gulfport.
According to the lawsuit, “Gulfport’s illegal discharges of raw and/or partially treated sewage degrade water quality and harm aquatic life, and thus impairs Plaintiffs’ members’ use and enjoyment of the ocean and bay waters and other waters adjoining and in Gulfport.”
SCWK is based in Sarasota and is joined in the lawsuit by the 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 court documents, the plaintiffs claim that the city has violated the federal Clean Water Act.
Detailed terms of a possible partial settlement have been discussed with council members in what are called “shade meetings” that by law are not open to the public.
At their June 18 meeting, council approved the minutes of a Thursday, June 6 shade meeting that met in an attorney-client executive session from 7:30 to 9 p.m. In the short public session that began at 9 p.m., council voted on a motion to have Henderson and City Manager Jim O’Reilly serve as their representatives to “complete the negotiations and execute a nonbinding term sheet that will form the basis for a settlement that will be subsequently brought before the city council.”
According to the minutes, “Henderson asked for an ‘all in favor’ vote” then Councilmember Michael Fridovich requested a roll call vote “to have his vote on the record.” Henderson, Brown, Councilmember Dan Liedtke and Vice Mayor Paul Ray voted for the motion while Fridovich voted against it. The motion was approved with a 4 to 1 vote.
Gulfport’s elected officials, city staff and their attorneys have chosen not to comment on pending litigation, which is standard practice. The results of Gulfport’s settlement agreement will not be available to the public until the case is settled.
What the Settlement May Include
In an 81-page public record filed with the United States District Court for the Middle District of Florida Tampa Division on December 19, 2018 that became publically available in an online legal database in the spring of 2019, terms of a partial settlement were detailed.
At that time, the court record showed that in order to resolve the plaintiffs’ complaint, the parties were considering a proposal that included the city completing a supplemental environmental project (SEP) “intended to secure significant environmental benefits to the watersheds and ocean waters in and adjacent to Gulfport.”
Specifically, the SEP would be a “‘living shoreline’ to be constructed in Breakwater Park,” which is a 40 to 50 foot wide peninsula of public land adjacent to Boca Ciega Bay that is about 450 feet long. It is located north of the municipal marina and the Boca Ciega Yacht Club (BCYC).
Currently, the park is mostly undeveloped and fenced off from the public. It is visited mostly by shore birds and birds of prey like ospreys.
Since the 2018-2019 budget year, council has been discussing developing the area in up to four phases that include a living shoreline.
On Tuesday, October 2, 2018, council unanimously approved municipal budget monies and directed staff to apply for a Southwest Florida Water Management District (SFWMD) grant to fund the initial phases of developing the park for public access. Phases One and Two were slated to take place during the current fiscal year with an estimated cost of $210,532 coming from the city’s capital improvement budget.
For Phase One, Cardno Engineering, a national firm with offices in Tampa Bay, was chosen to develop, design and permit the project in addition to providing construction-monitoring services at a cost of $65,000, said O’Reilly in October 2018. This process was expected to take from 90 to 120 days.
Phase Two will consist of creating public accessibility to the area and the building of small-scale linear docks and piers for bird watching and sunset observation similar to those that have been already added to the city’s 10-acre Clam Bayou Nature Park south of 29th Avenue South on Miriam Street.
The peninsula park “will be ADA accessible and low voltage LED bollard lighting to give it a nice look,” said Gulfport Marina Director Denis Frain in October 2018. Invasive plant species will be removed leaving native mangroves so it can continue to be a good birding area.
When funding becomes available, Phase Three could be the construction of a two-story scenic overlook tower with a tin roof including signage, said Frain.
In what could become Phase Four with a total estimated cost of $200,000, council directed staff to seek grand funding from SFWMD for the possible development of a living shoreline with native coastal grasses and the ability to grow oysters that clean water and attract fish. If awarded, the grant monies could also mean the city would be eligible for the agency’s Cooperative Funding Initiative (CFI) program.
The CFI program matches one dollar for every non-federal dollar used in water quality and natural restoration projects. In the past, Gulfport has been successful in securing SFWMD funding, most recently for the 49th Street Outfall project adjacent to the marina.
The December 19, 2018 court document states, “plaintiffs expressly agree that Gulfport’s completion of this planned SEP is contingent upon both SFWMD’s approval” of the city’s grant application and the related CFI matching funds program.
To review specific lawsuit settlement terms that were being discussed as of the latest public record click here.
For more information about living shorelines in Florida, visit flseagrant.org/florida-living-shorelines.
At the June 4 regular council meeting, the agenda included discussion of the proposed 2019-2020 budget, part of which includes the various phases of the park.
“At this point, I think we need to suspend discussion of the Breakwater Park in the BCYC area and the associated living shoreline due to some other issues related to it,” said O’Reilly. “It’s an environmental type situation. I would not ask you to fund it at this time.”
Henderson said, “That’s fine. We had that discussion. I have no problem with putting that on the back burner.”