Let’s talk about hurricane evacuation and permits

George Garrett, City Manager in Marathon, joined Good Morning Keys on KeysTalk 96.9/102.5FM this morning to talk about what’s been going on in the city.

A meeting with the city council last night saw a number of items on the agenda.

Garrett said, “We’re going to the county commission meeting today. The reason that we’re headed that away, and we discussed it last night is we’ve kind of come to the point, whether it’s a precipice or a wall or whatever you want to call it, of running out of her hurricane evacuation time and ultimately, we’re running out of permits to issue as a result. That was the subject of our discussions at city council last night. I know it’s going to be the subject of some review and discussion at the County Commission today. What that all gets down to for the citizens of the Keys and the city of Marathon is honestly, how do we balance the issues between growth and the fact that we’ve got almost 8,000 lots left that are vacant? That equates to potential takings cases if we don’t issue permits, against safe evacuation, and honestly, what’s becoming a perception amongst the public I talk to that enough is enough. So that’ll be the subject of discussion at the county commission today.”

Marathon City Council wants to look out for the citizens.

Garrett said, “Protect our citizens, including those with remaining vacant properties from the potential difficult and costly takings case, which are inevitably lost in the courts. Bottom line is, there have been some suggested remedies to this by a number of people talking about it. I think it’s going to take a little bit more than that. Because I think we are, from the city’s perspective, going to have to be able to continue issuing some permits. We need to get to that point and those things are going to be, they have to be under the circumstances, without explanation here, they have to be legislative changes. Just exactly what those changes are, we can discuss but that’s the fact of it. Our direction from City Council is protect our citizens, which really goes to that point of being able to find some permits to issue and property rights and takings cases.”

If things stay as they are, will there will be no more further permits issued?

Garrett said, “Well, effectively. I mean, we all have a few permits left, some more than others, but at the end of the day, you can’t print them.”

If permits were to be issued, there would have to be changes in the evacuation mandates, but it would ultimately be up to the legislature.

Garrett said, “It’s going to have to be managed at the legislature. Even if the law is changed, which right now says we have a 24 hour evacuation, there’s a couple other ways we can do it. I know, there’s discussions this year about the possibility of moving the mobile home permanent population into the first 24 hours of evacuation, which is typically for our transient residents. That does alleviate some timing issues, but only gets us back to 24. Since at least the modeling right now says we’re probably over 24 hours and that’s the statutory mandated evacuation time.”

What about Key West being included?

Garrett said, “That’s never ever, ever, ever been an issue until the outcome of a Third District Court of Appeals case with the city of Marathon in fact, and at the same time, Key West and Islamorada. The bottom line is that Third District Court of Appeals recognized that there were two different sets statutory constraints within everybody’s area of critical state concern requirements and Key West. They actually determined that we were bound by 24 hours, but all Key West had to do is be able to evacuate safely. So therefore, potentially, based on that determination, Key West has no time constraints and we all want to make it clear that Key West does have to evacuate. They have to evacuate within the constraints that we all have to evacuate within, which is 24 hours and we’ve got a model for them, too. We’ve always done that. But this case made that confusing and we’re going to go back to the legislature this year and make that very clear again. If we have to put it in the statutes because of this confusion, we’ll do that.”

If the 25,000 people in Key West weren’t included in the evacuation modeling, would that ease any of the restrictions?

Garrett said, “It’s an interesting question, because the reality is, we still have to evacuate the rest of us in 24 hours. But if this onslaught of people coming across the Cow Key Channel Bridge slows us down, I think you’re still at 24 hours realistically. Now, if you exclude them and just pretend they’re not there, then I think the evacuation times for the rest of the Keys are estimated at about 15 hours, but we know that that is simply a model. Ignoring the fact that there are as you say, almost 30,000 people in Key West, it makes no sense. You can do the modeling, assume that Key West doesn’t exist, but the reality is that they do and they’ve got to get across the Cow Key Channel Bridge and then we’ve got to assume them up the rest of the US 1.”

In talking with the county commission, Garrett has a plan.

He said, “One of my points, in fact, is you don’t win takings cases. You do not win. I’m going to say we actually have won a couple. But by and large, you do not win them. Property rights is of tantamount interest in the Constitution. At that point, we’ve gone back and forth on the strength of the courts opinions in that, but the bottom line is you don’t win them generally. You’ll end up paying for them. Right now, I think a lot of the issue that’s out there, I think is a concern that what’s come up and forced the discussion most recently in the last couple of weeks, is the fact that it appears as if we’ve always said the state has to be a part of this and the question is right now is will there be? My comment coming up before the county commissioners, was we’re going to be dealing with the takings case, and state’s going to be on vacation.”

Marathon City Council also talked about deep wells.

Garrett said, “Several years ago now, the Maui case went to the Supreme Court. The gist of that case was that Maui had been using shallow wells much the same as we do. The regulatory requirements are a little different, but essentially the same structures to dispose of wastewater effluent. It was determined, after some lengthy proceedings that using shallow wells was the functional equivalent of just dumping it in the near shore and that’s a violation of the Clean Water Act. It really set the stage for lawsuits and similar sorts of situations, as we see in the Keys. If you’re using a shallow well, it was potentially a lawsuit, and we wouldn’t have anticipated that 15 years ago when we were doing the permitting for our system. Our system is legally permitted, functions legally, has never been in violation, at least for what its purposes are and was actually funded by the state. So bottom line is we did everything legally and in accordance with a law that we passed specifically to deal with this issue back in 1999. So, bottom line is we feel that we did the right thing. That said, we also recognized through some recent efforts from Penn State, that there are impacts, although minimal, there are impacts from a shallow well on the near shore. So cut to the chase, in the lawsuit that came against the city of Marathon, by the group known as FOLKS, Friends of the Lower Keys, we’ve come to a settlement with them and recognition on the one hand, and, being candid, that we might very well lose that case based on the Maui case. Secondarily, I think we are indicating at this point through our action that we actually believe that in the long run, this is a better solution anyway. It’s costly. We figured out at least the basics for how we would fund it. Of course, we want to be looking for all the grant funding we possibly can to handle it. But bottom line is, we’ve agreed with FOLKS in a stipulated settlement agreed upon last night with council that we will put our effluent once consolidated in to it, one pipe, if you will, we will put it down a deep well, at one of two locations within the city.”

Are there any other penalties that were assessed in the settlement?

“No,” Garrett said, “The time frame to get it completed is five years. That was pushed back a year from what was initially success suggested by FOLKS. We think it’s tenable. There were no penalties except failure to actually carry it out. So if we mess it up, and don’t get it done by the end of 2028, there will be penalties. But I think short of that everything is basically you need to get it done, you need to give us reports as you’re doing it and you need to get it accomplished by the end of ‘28.”