biscayne bay water keeper memo in response to plaintiff's notice of consent decree

7/28/2019 Biscayne Bay Water Keeper Memo in Response to Plaintiff's Notice of Consent Decree

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UNITED STATES DISTRICT COURT FOR THESOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No. 12-24400-CIV-MORENO

UNITED STATES OF AMERICA,STATE OF FLORIDA and STATE OFFLOIRDA DEPARTMENT OFENVIRONMENTAL PROTECTION,

Plaintiffs,

v.

MIAMI- DADE COUNTY,

Defendant.

_______________________________________

BISCAYNE BAY WATERKEEPER, INC.,a Florida not for profit corporation, and JUDIKOSLEN, a Key Biscayne, Florida, Resident,

Plaintiffs/Intervenors.

________________________________________/

PLAINTIFFS/INTERVENORS MEMORANDUM IN RESPONSE TO

PLAINTIFFS NOTICE OF LODGING OF CONSENT DECREE

Biscayne Bay Waterkeeper, Inc. and Judi Koslen (collectively Intervenors) submit this

Memorandum in response to the Plaintiffs Notice of Lodging of Consent Decree (DE 25).

Regrettably, Intervenors cannot support the current version of the decree and will be forced to

oppose its entry, if the draft is not substantially modified through the EPAs public comment

process. Intervenors intend to participate in the public comment process (and discovery) and are

hopeful that substantial improvements to the decree are made such that Intervenors may join in a

Case 1:12-cv-24400-FAM Document 31 Entered on FLSD Docket 06/28/2013 Page 1 of 21


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motion for its judicial approval. By this Response, Intervenors hereby identify some of the more

obvious and serious deficiencies in the filed draft decree in order to provide early notice why

those deficiencies render the draft unfair, unreasonable and contrary to the public interest.1

INTRODUCTION

Miami-Dade County is currently operating its wastewater collection, transmission and

treatment system subject to and in violation of two federal Clean Water Act consent decrees.

(Case No. 93-CV-1109-FAM, DE 36 and 118.) Those decrees were entered in a Clean Water

Act enforcement case brought by the United States to abate ongoing water pollution violations.

After implementing capital projects required by those decrees, the County failed to adequately

fund operation and maintenance of the system and the system subsequently fell into disrepair

resulting in further violations of the federal Clean Water Act. (Declaration of Dr. Michael

Kavanaugh, DE 7-Ex. 1.) Although underfunding the system, the County was charging some of

the lowest sewage rates in the Country. See Miami-Dade Water and Sewer Rates, Fees and

Charges, http://www.miamidade.gov/water/rates.asp (last updated May 16, 2013, 2:02 PM); see

also May 18, 2013, Editorial, Miami-Dade Water Fee Must Increase for Healths Sake, Miami

Herald, May 18, 2013, http://www.miamiherald.com/2013/05/18/3402862/miami-dade-water-

fee-must-increase.html. (Miami-Dade residents have long enjoyed some of the lowest water

bills in the country, a result of political reluctance to raise rates, and thus also voters ire. But this

self-serving expediency has now backfired, with the deterioration of the system for lack of

proper funding.) Moreover, Sewer Department revenues, which otherwise would have been

available to fund necessary operation and maintenance expenses, were diverted by the County

for other purposes. (Kavanaugh decl. 7-9.) The failure of the County to fund routine

1 Intervenors identified a number of deficiencies with an earlier draft version of the consent decree in theirComplaint in Intervention and do not waive those objections or any other claims or causes of action, even if notspecifically mentioned in this Response.



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operation and maintenance led to significant deterioration of the system resulting in renewed

widespread and continuous violations of the Clean Water Act. For example, over the past several

years, forty-seven (47) million gallons of raw sewage have been illegally discharged into the

waters of Biscayne Bay and other locations due to sewer line breaks (See DE 5 Exs. 2-4); the

Central District Plant on Virginia Key is literally falling apart and has been cited repeatedly for

operating significantly out of compliance (DE 5, Ex. 19); and the 54- inch force-main running

under Biscayne Bay has been identified as in imminent danger of catastrophic failure.

Memorandum from Carlos A. Gimenez, Mayor, Miami-Dade Cnty., to the Bd. of County

Commrs. (July 17, 2012), cited inhttp://miamidade.gov/mayor-

memo/Letter_to_Honorable_Franklin_Caplan_re%20Miami-

Dade_Central_District_Wastewater_Treatment_Plant_at_Virginia_Key.pdf). All of these

violations occurred while the County was operating under those two consent decrees purportedly

under the oversight of EPA and the Florida Department of Environmental Protection.

Responding to the Countys continuing violations of the two existing decrees and the

Clean Water Act, Intervenors issued a sixty (60) day notice letter to the County and to the U.S.

EPA notifying them of Intervenors intent to bring suit against the County to cure the violations.

(DE 5 Ex. 15.) On December 13, 2012, fifty-nine (59) days after receipt of Plaintiffs-

Intervenors sixty (60) day notice letter, the United States and the State of Florida filed suit

against Miami-Dade County alleging numerous violations of the Clean Water Act associated

with the operation of the Countys wastewater collection, transmission, and treatment system.

(DE 1.) Plaintiffs recently filed with the Court a draft consent decree, which, by its terms,

purports to supersede and terminate the two existing federal Clean Water Act consent decrees



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and resolve the claims asserted by Plaintiffs in their Complaint against Miami-Dade County.

(The draft consent decree can be found at DE 25, Ex. 1.)

As stated in Plaintiffs Notice of Lodging, notice of the draft decree has been published in

the Federal Register allowing for public comment and, the Department of Justice may withdraw

the draft decree if the comments . . . disclose facts or considerations which indicate that the

[consent decree] is inappropriate, improper, or inadequate. 28 C.F.R. 50.7(b). Ifafter receiving

the public comments, the Department of Justice finds the consent decree to be appropriate, it will

then file a motion for judicial approval and entry of the decree. Notice of Lodging, 78 Fed. Reg.

35315-02 (June 12, 2013). Additionally, this Court must give the proposed decree careful

scrutiny, Sierra Club v. Coca-Cola Corp., 673 F. Supp. 1555, 1556 (M.D. Fla. 1987), and hold

a fairness hearing to assess whether the decree is fair, reasonable and in the public interest.

Fla. WildlifeFedn. v.Jackson, No. 4:08cv324, 2009 WL 5217062 (N.D. Fla. Dec. 30, 2009).2

Intervenors have the right to present evidence regarding the consent decree. Local No. 93,

Intl Assn. of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 529 (1986). Moreover,

an evidentiary hearing must be conducted when the existing record is insufficient for the district

court to determine whether the consent decree is fair, reasonable, and in the public interest. See

2As explained by the Eleventh Circuit: Even though the decree is predicated on consent of the parties, the judgemust not give it perfunctory approval. Because the consent decree does not merely validate a compromise but, byvirtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful

scrutiny. Even when it affects only the parties, the court should, therefore examine it carefully to ascertain not onlythat it is a fair settlement but also that it does not put the courts sanction on and power behind a decree that violatedConstitution, statute, or jurisprudence. This requires a determination that the proposal represents a reasonable factualand legal determination based on the facts of record, whether established by evidence, affidavit, or stipulation. If thedecree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor

prescribed. Stovall v. City of Cocoa, 117 F.3d 1238, 1242 (11th Cir. 1997) (quoting U.S. v. City of Miami, Fla., 664F.2d 435 (5th Cir. 1981))(emphasis in original).



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Stovall v. City of Cocoa, 117 F.3d 1238, 1242 (11th Cir. 1997). The three prong standard

applied at fairness hearings can be briefly described as follows:

1. Fairness: The Court must determine whether the consent decree is procedurally fair

and substantively fair. U.S. v. DeKalb Cnty., Ga., 1:10 cv 4039 WSD, 2011 WL 6402203, at *10

(N.D. Ga. Dec. 20, 2011). A [consent] decree is fair when it is the product of good-faith

negotiations, reflects the opinions of experienced counsel, and takes into account the possible

risks involved in litigation if the settlement is not approved. Id. A consent decree is

procedurally fair when the negotiating process shows candor, openness, and bargaining balance.

See id. A consent decree is substantively fair when, among other things, the remedial measures

provided for in the consent decree are reasonably gauged to remedy the ongoing violations of the

CWA. See U.S. E.P.A. v. City of Green Forest, Ark., 921 F.2d 1394, 1402 (8th Cir. 1990).

2. Reasonableness: A consent decree is reasonable when it is technically adequate to

accomplish the goal of cleaning the environment and sufficiently compensates the public for the

costs of the remedial measures. DeKalb, 2011 WL 6402203, at *11; see also U.S. v. Ga.-

Pac.Corp., 960 F. Supp. 298, 299 (N.D. Ga. 1996) (The [d]ecree is reasonable in that it is

technically adequate and adequately compensates the public for the alleged violations.). A

consent decree is technically adequate if it remedies current violations and prevents future

violations to the relevant statute. See DeKalb, 2011 WL 64002203, at *11.

3. Public Interest: The public interest is a key consideration in the Courts evaluation

of a consent decree. See U.S. v. Azko Coatings of Am., Inc., 949 F.2d 1409, 1435 (6th Cir. 1991).

A consent decree may not be entered if it is contrary to public policy. SeeCity of Miami, 664

F.2d at 441. A consent decree seeking to enforce a statute is within the public interest when it

comports Congressional goals. See Coca-Cola, 673 F. Supp. at 1556. To determine whether a



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consent decree is within the public interest, the Court must look to the purpose of the relevant

statute. See U.S. v. Telluride Co., 849 F. Supp. 1400, 1402-03 (D. Col. 1994). When a consent

decree seeks to enforce the CWA, it must comport with Congress goal to restore and maintain

the chemical, physical, and biological integrity of the Nations waters. 33 U.S.C. 1251(a); see

also DeKalb, 2011 WL 6402203, at *11;Fla. Wildlife Fedn., 2009 WL 5217062, at *1.

For the reasons discussed below, the draft consent decree Plaintiffs lodged with the Court

is not fair, reasonable or in the public interest and, it must be significantly modified in order to

meet that standard.

DISCUSSION

A. The Zero Sea Level Rise Consent Decree And Capital Projects Are Not

Based On Sound Science And Engineering Practices.

The Organization for Economic Cooperation and Development, an international non-

governmental organization, identified Miami as among the top ten population centers in the

world at risk from climate change, and, in terms of the value of property and infrastructure at

risk, Miami ranks number one. R. J. Nicholls et al.,Ranking Port Cities with High Exposure and

Vulnerability to Climate Extremes: Exposure Estimates3, 7, 28 (OECD Envt. Working Papers,

Paper No. 1), available at: www.aia.org/aiaucmp/groups/aia/documents/pdf/aias076737.pdf.

The draft consent decree, however, does not acknowledge that climate change is

occurring; nor does it require that the County consider known impacts of climate change (e.g.,

sea level rise, storm surge and flooding) on the Countys sewage system. The draft consent

decree, which assumes zero sea level rise, does not contain sound science and engineering

analysis of how the impacts of climate change may affect the ability of the sewage system to

achieve and maintain compliance with the federal Clean Water Act (and NPDES permit)

requirements and the consent decree (operational reliability); and, it does not require any

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evaluation of whether rebuilding the three wastewater treatment plants at their present locations

is cost-effective, when climate impacts such as sea level rise and storm surge are considered. As

a consequence, the County selected and is committing to fund $1.5 billion in capital projects

under the decree, without planning for the reasonably projected impacts of climate change.3 This

makes the proposed Consent Decree unfair, unreasonable and contrary to the publics interest.

Intervenors agree that some of the proposed capital projects must go forward

immediately. But investments in longer-term projects should be made only aftera sound science

and engineering assessment of the existing plants viability and future use. Because the proposed

consent decree fails to incorporate sound science and engineering practices, it will likely result in

unnecessary and wasteful spending that is unreasonable and contrary to the public interest.

The Countys three wastewater treatment plants are each located very close to the coast

and, each plant is at risk of climate impacts, principally sea level rise and storm surge.

(Declaration of Dr. Harold R. Wanless and Dr. Brian J. Soden, 17-26; DE 5 Ex. 8.) In fact,

the largest and oldest of the plants, the Central District Wastewater Treatment Plant, is located

on Virginia Key, which is a barrier island.4 Drs. Wanless and Soden conclude that in failing to

address and incorporate the projected sea level scenarios, the County risks spending [a] great

amount of taxpayers money on projects that may well not survive the project lifetime and may

3The capital projects and their costs are identified in a series of exhibits to the draft consent decree and can befound at DE 25 Ex.s 6-9. They range from the replacement of individual pipes and pumps to the completerefurbishment of the Central District Wastewater Treatment Plant. In fact, of the $1.5 billion, over $600 million isfor the rebuilding of the Central Plant alone.4

Focusing on the Central District Plant, Drs. Wanless and Soden stated in their affidavit (previously filed with theCourt): Virginia Key will experience a further two feet of sea level rise within the next 40 -50 years. This rise,combined with storm effects, will eliminate all existing island that currently remains in front of the CentralTreatment Plant and further expose the Plant to a new regime of daily and storm tides, currents and surges. It will bean isolated entity on the ocean side of Biscayne Bay. Before investing $555 million dollars of taxpayers funds intothe Virginia Key Plant, it is critical to know how the complex and its fill margins and underpinnings will react tocontinuous and long-term saltwater exposure, changing tides and currents, changing storm surge patterns andintensities due to sea level rise. This assessment is wholly unaccounted for in the proposals.Id. at 36-37.



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well cost greater amounts of money in the future.Id. at 26. Taking such a gamble with the

taxpayers money is unreasonable and not in the publics interest.

The County acknowledges that sea level rise is occurring and also that the projected level

of sea level rise adopted by the County will result in impacts the three plants. SeeOctober 2012

Southeast Florida Regional Climate Change Compact Counties Regional Climate Action Plan

adopted on April 2, 2013, by the County Commission available at the website:

www.miamidade.gov/govaction/matter.asp?matter=122459&file=true&yearFolder=Y2012.

Miami-Dade County also acknowledges that the ability of its wastewater treatment plants to

achieve and maintain compliance with the Clean Water Act will be affected by climate change

and that sea level rise must be evaluated to improve the operational reliability of the plants

within the context of the Clean Water Act. Memorandum from Carlos A. Gimenez, Mayor,

Miami-Dade Cnty., to the Bd. of County Commrs (July 17, 2012) (available on the Miami-Dade

County website at: www.miamidade.gov/mayor-

memo/Letter_to_Honorable_Franklin_Caplan_re%20Miami-

Dade_Central_District_Wastewater_Treatment_Plant_at_Virginia_Key.pdf).

Notwithstanding the Countys acknowledgement that sea level rise is occurring, that it

will impact the plants, and that it must be addressed to ensure operational reliability, the capital

projects identified in the draft consent decree for the repair and refurbishment of the three

existing plants (totaling about $800 million) were identified without taking climate change

impacts into account, assuming that those plants will continue to operate in the future as they

have in the past, without any regard to sea level rise.

Remarkably, the County did not even include in the draft consent decree those climate

change adaptation measures recommended by its own consultants. See Jayson J. Page & Beth

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Waters, Hazen & Sawyer, Sea Level Rise Impacts at Miami-Dade Water and Sewer Wastewater

Treatment Facilities (2013). See also Affidavit of Professor Ricardo Alvarez, attached as Ex. 1.5

Prior to making long term investments in the three existing sewage treatment plants, the

Intervenors experts have urged the County to evaluate their long-term viability based on sound

science and engineering and cost-effectiveness. Because this evaluation will likely significantly

alter the capital projects and costs, the evaluation must be implemented as part of the consent

decree in order for the decree to be fair, reasonable and in the public interest.

In their prior declaration, FAU Professors, Dr. Leonard Berry and Ricardo Alvarez,

describe in detail a sound science and engineering methodology designed to result in the

identification of a cost-effective, long-term plan for operation of the wastewater treatment

system. (Declaration of Dr. Leonard Berry and Mr. Ricardo A. Alvarez, DE 5 Ex. 9.) The Berry-

Alvarez methodology starts with a detailed assessment of the vulnerability of the plants to the

impacts of climate change and storm surge and includes a step-by-step process for reaching

informed decisions regarding whether a plant, or some of its functions, should be relocated or,

alternatively, hardened in place. Id. at 45. The Berry-Alvarez methodology also includes

opportunities for stakeholder input and recommends oversight by a blue ribbon committee of

academic, business, and political leaders. Under these circumstances and, in order to meet the

fairness test, this type of analysis must be implemented prior to the County the County

commitment spending hundreds of millions of taxpayers dollars on unnecessary, long-term

5 Professor Alvarez found the Countys Hazen and Sawyer study highly flawed , intentionally restricted in scope,and a totally inadequate basis for reasoned decision-making. Notwithstanding his criticisms, however, ProfessorAlvarez makes the point that even Hazen and Sawyers limited adaptation recommendations , namely, constructionof sea walls around all three wastewater plants, building hardening, and covering of electrical equipment, were notincluded in the EPA-County proposed, zero sea level rise consent decree. (Alvarez aff. ex. 1.)



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capital projects that will likely not survive the useful life of the plants and cannot assure

operational reliabilitythe first benchmark of any legally-approvable, CWA consent decree.6

Aware of the urgent need for some of the capital improvement projects identified in the

draft consent decree to go forward immediately, Intervenors also recommended to the County

and EPA that they bifurcate the consent decree, which would allow certain projects to proceed

rapidly, while the parties undertake the sound science and engineering studies necessary to make

informed decisions regarding the sea level rise and storm impact-related issues. To date, the

Intervenors recommendations and those of its experts have been completely ignored.

B. As Acknowledged By Plaintiffs, Adherence To The Zero Sea Level Rise ConsentDecree May Not Result In Compliance With The Clean Water Act.

The issue of whether a consent decree ensures compliance with the Clean Water Act is so

important that it is considered in connection with each of the three prongs of the consent decree

evaluation. See U.S. v. Lexington-Fayette Urban Cnty. Govt, 591 F.3d 484, 489 (6th Cir.

2010)(noting that one of the most important considerations when evaluating the reasonableness

prong is whether the decree will bring the polluter into compliance with the Clean Water Act);

U.S. v. Metro. St. Louis Sewer Dist., 4:07-CV-1120 CEJ, 2012 WL 1466033 (E.D. Mo. Apr. 27,

2012)(finding the decree to be substantively fair in part because it remedies the ongoing

violations of the Clean Water Act); and DeKalb Cnty., 2011 WL 6402203 (finding consent

decree which is technically adequate to bring the violator into compliance with the Clean Water

Act satisfied the reasonableness and public interest prongs). In the draft decree lodged with the

Court, however, Plaintiffs state:

[t]he United States and FDEP do not, by their consent to the entry of this ConsentDecree, warrant or aver in any manner that Miami-Dades compliance with anyaspect of this Consent Decree will result in compliance with provisions of the

6By operational reliability Intervenors mean the ability of the treatment plants to routinely meet t heir state andfederal permit standards and Clean Water Act requirements in light of expected climate and environmental impacts.



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CWA, Florida law, or with any other provisions of federal, State, or local laws,regulations, or permits.

(DE 25 Ex. 1 68.) While Intervenors appreciate Plaintiffs candor, after twenty (20) years of

alleged U.S. EPA oversight of the two consent decrees previously approved by this Court and,

afteryears of negotiation on this new, proposed decree, the proposed consent decree should

assure County compliance with the Clean Water Act.

In Intervenors view, oneprincipal reason why the United States is unable to represent to

the Court that compliance with the consent decree will ensure compliance with the Clean Water

Act is because the decree completely ignores the inevitable impacts of climate change within the

useful life of the capital projects. According to Plaintiffs/Intervenors experts, thiszero climate

change consent decree cannot and does not provide operational reliability. (See Declaration of

Dr. Leonard Berry and Mr. Ricardo A. Alvarez, DE 5 Ex. 9 19-37; see also Affidavit of

Professor Ricardo Alvarez, Ex. 1, attached hereto.) Of course, U.S. EPA knows this to be true

and understands the importance of planning for climate change before committing to sewer

capital improvement plans. In a 2008 study of the Great Lakes sewage systems, for example,

U.S. EPA concluded that the failure to account for climate change in the redesign of the Great

Lakes wastewater treatment systems would result in Clean Water Act violations. Joel Scheraga,

Senior Advisor for Climate Adaptation, EPA, Building Capacity for Climate Change, min. 9

(June 3, 2013) www.climate-adaptation-symposium.org/recordings/2013-06-03-1130-

Scheraga.mp4.

Even the Countys consultant, Hazen & Sawyer, agreed that the capital projects do not

provide operational reliability, without additional sea level rise and storm surge protections.

Jayson J. Page & Beth Waters, Hazen & Sawyer, Sea Level Rise Impacts at Miami-Dade Water

and Sewer Wastewater Treatment Facilities (2013). Looking at only a highly limited scope of

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climate risk factors, Hazen & Sawyer identified approximately $96 million in adaptation costs

needed to ensure the operational reliability of the three plants. This includes the construction of

barriers around each of the plants, hardening of certain buildings and structures, and protection

of electrical equipment. Hazen & Sawyer also recommended that the County consider sea level

rise issues with [the] consent decree [capital] projects. Rejecting its consultants advice, the

County did not consider sea level rise before deciding on the capital projects to be included in

the decree and not one of the Hazen & Sawyer recommended adaptation measures were included

in the capital project list attached to the decree.7 See Alvarez aff., Ex. 1. Without addressing

climate change impacts before selecting and offering consent decree capital projects, the County

cannot assure that it will be able to maintain compliance with the consent decree or the CWA.

Because the Plaintiffs can neitherwarrant [n]or aver compliance with the decree will result in

compliance with the CWA, the decree is not fair, reasonable or in the public interest.

C. The Failure To Plan For Climate Change Impacts Prior To Committing To LongTerm Capital Projects Violates Federal And Local Policies.

It is and has been the policy of U.S. EPA that planning processes for wastewater

treatment plants take climate change into account before an infrastructure process is chosen.

EPAs Clean Water and Drinking Water Infrastructure Sustainability Policy,

www.water.epa.gov/infrastructure/sustain/upload/Sustainability-Policy.pdf. Unfortunately for the

residents, businesses and visitors to Miami-Dade County, the EPA refused to adhere to this

policy when it came to the signing the zero sea level rise consent decree,. The U.S. EPAs

Sustainability Policy recognizes the importance of having sustainable water and wastewater

7Following receipt of the Wanless/Soden and Berry/Alvarez affidavits, the County engaged Hazen & Sawyer toundertake a thumb-nail analysis of the vulnerability of the three wastewater treatment plant to sea level rise.Although the Hazen and Sawyer study is completely inadequate, it serves to demonstrate that the County, like thePlaintiffs/Intervenors, has concluded that climate impacts have the potential to affect the operational reliability ofthe plants. See Alvarez aff., Ex. 1.

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infrastructure to continue to provide the public with clean water. To accomplish sustainability,

U.S. EPA recommends that water infrastructure should take into consideration future impacts

from climate change. Id. The Sustainability Policy stresses that the most important phase for

achieving sustainability is in theplanning processes. See id. at 2. The planning processes should

take into consideration climate change before an infrastructure capital plan is chosen and

implemented. Id.8 This EPA policy promoting consideration of climate change impacts as part

of the planning process and prior to the selection of capital projects is consistent with other

federal strategy, policy and guidance documents, which also emphasize the need to incorporate

climate change planning into wastewater infrastructure decision making and investment. See,

e.g., U.S. Army Corps of Engineers, Circular No. 1165-2-211 (issued July 1, 2009, and renewed in

2011) (requiring sea level rise impacts to be evaluated as part of the planning process for all Corps

projects); EPA National Water Program 2012 Strategy: Response to Climate Change (2012)

availableat:www.water.epa.gov/scitech/climatechange/upload/epa_2012_climate_water_strategy

_full_report_final.pdf. (stating that it is a federal objective to ensure that wastewater utilities

make smart investment decisions by taking climate change into account); Climate Ready

Water Utilities Adaptation Strategies Guide for Water Utilities, v (2012),

www.water.epa.gov/infrastructure/watersecurity/climate/upload/epa817k11003.pdf. (provides

wastewater utilities with a basic understanding of how climate change can impact utility

8 According to EPAs policy: Drinking water and wastewater systems should use robust and comprehensive

planning processes to pursue water infrastructure investments that are cost-effective over their life cycle, areresource efficient, and are consistent with community sustainability goals. Systems should also employ effectiveutility management practices, including consideration of alternatives such as natural or green systems andpotential climate change impacts, to build and maintain the technical, financial, and managerial capacity necessaryto ensure long-term sustainability. (Emphasis added)In order to affect the sustainability of water infrastructureprojects throughout the nation, EPA will work to impact the planning that takes place in the projectdevelopment phase, before the infrastructure solution is selected and designed, and encourage utilities toactively consider the impact that water infrastructure decisions may have on other community priorities during thisprocess. Planning processes should reflect public health, water quality, and climate change consideration.Id.at 2 (emphasis supplied).

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operations and missions and provides examples of actions utilities can take to prepare for these

impacts); National Ocean Policy Implementation Plan, 2 (2013), available at

www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf.

(requiring federal agencies take steps to help improve the resiliency of coastal communities to

climate change including assessing the vulnerabilities of coastal communities to climate change

and to design and implement adaptation strategies).9

With reference to County climate policies, they are equally well-ignored in the proposed

consent decree. In January 2010, Miami-Dade, Palm Beach, Broward and Monroe Counties

entered into the Southeast Florida Regional Climate Change Compact, creating a voluntary

partnership of public bodies for the purpose of developing a unified, regional approach to

addressing the impacts of sea level rise and climate change on South Florida infrastructure.

Among its first tasks was the development of regionally consistent sea level rise projection for

the coming decades. In a report dated April 2011, the Compacts Technical Ad Hoc Work Group

recommended the Compact Counties adopt the U.S. Army Corps of Engineers sea level rise

projections of up to seven inches by 2030 and up to 24 inches by 2060 and recommended that

those numbers be used for infrastructure planning purposes.A Unified Sea Level Rise Projection

for Southeast Florida, iv (2011) available at:

www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_A

pril2011pdf. Using the U.S. Army Corps of Engineers sea level rise projections, the four South

9

Hurricane Sandy destroyed wastewater treatment plants in the New York and New Jersey area with its storm surgeresulting in almost 10 billion gallons of sewage spills. www.climatecentral.org/pdfs/Sewage.pdf. In response,Congress passed the Federal Disaster Relief and Appropriates Act of 2013 (DRAA) which, among other things,makes funding available to rebuild those plants. Funding eligibility requires, however, the capital projects areplanned in a way that reduces vulnerabilities and risks from extreme weather events and storm surge. Resiliencyplanning measures such as vulnerability analysis and assessment of risks is required as a condition to funding. Evenif otherwise eligible, Miami-Dade County would not qualify for DRAA funding under the consent decree because

it has not committed to undertaking an analysis of the impacts of climate change prior to identifying and

committing to fund the capital improvements.

http://www.whitehouse.gov/sites/default/files/national_ocean_policy_implementation_plan.pdfhttp://www.whitehouse.gov/sites/default/files/national_ocean_policy_implementation_plan.pdfhttp://www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_April2011pdfhttp://www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_April2011pdfhttp://www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_April2011pdfhttp://www.climatecentral.org/pdfs/Sewage.pdfhttp://www.climatecentral.org/pdfs/Sewage.pdfhttp://www.climatecentral.org/pdfs/Sewage.pdfhttp://www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_April2011pdfhttp://www.ces.fau.edu/files/projects/climate_change/SE_Florida_RegionalCompact_SeaLevelRise_April2011pdfhttp://www.whitehouse.gov/sites/default/files/national_ocean_policy_implementation_plan.pdf


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Florida Compact Counties then developed the Southeast Florida Regional Climate Action

Plan. Recognizing that Southeast Florida is one of the most vulnerable areas to climate change

and sea level rise, the overall goal of the Plan is to integrate climate adaptation and mitigation

into existing decision-making systems and to develop a plan that can be implemented through

existing local and regional agencies, process and organizations. With respect to wastewater

treatment plants, the Plan calls for infrastructure improvements, which mitigate the adverse

impacts of climate change and sea level rise. To achieve this goal, the Plan provides various

recommendations, including assessing the potential climate impact risks for each utility and

incorporating climate adaptation improvement projects in capital improvement plans.

On April 2, 2013, the Miami-Dade County Commission approved and adopted the

recommendations contained in the Southeast Florida Regional Climate Action Plan. Miami-Dade

Cnty., Fla., Resolution Accepting the Southeast Florida Regional Climate Action Plan Which

Includes Actionable Recommendations for Regionally Coordinated Climate Change Mitigation,

Adaptation Strategies, and Efforts in Building Community Resilience R-240-13 (Apr. 2, 2013),

available at:

www.miamidade.gov/govaction/matter.asp?matter=122459&file=true&yearFolder=Y2012.

If it had followed its own recommendations, the County would have undertaken sound science

and engineering vulnerability and risk assessments and alternative and cost-effectiveness

analysis, prior to the selection of capital projects that it has included in the proposed decree.10

10By failing to evaluate climate impacts before committing to the $1.5 billion capital projects in the zero sea levelrise consent decree, the County also violated its own December 2010 sustainability plan. Miami-Dade County,GreenPrint: Our Design for a Sustainable Future (2010), available atwww.miamidade.gov/greenprint/pdf/plan.pdf. GreenPrint describes the Countys plan for responding to climatechange with a focus on sustainability. The GreenPrint plan acknowledges that [e]ven slight changes in sea levelshave the potential to significantly affect our infrastructure, drinking water supply, and risks associated with stormsurge, flooding, and coastal erosion. The plan calls for an examination of the implications of sea level rise onvulnerable facilities (i.e. solid waste facilities, and water and wastewater utilities), and sets the goal of

http://www.miamidade.gov/govaction/matter.asp?matter=122459&file=true&yearFolder=Y2012http://www.miamidade.gov/govaction/matter.asp?matter=122459&file=true&yearFolder=Y2012http://www.miamidade.gov/greenprint/pdf/plan.pdfhttp://www.miamidade.gov/greenprint/pdf/plan.pdfhttp://www.miamidade.gov/greenprint/pdf/plan.pdfhttp://www.miamidade.gov/govaction/matter.asp?matter=122459&file=true&yearFolder=Y2012


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When an agency fails to follow its own public policy, it is ipso facto not acting in the

public interest. A consent decree may not be entered, if it is contrary to public policy. U.S. v. City

of Miami, Fla., 664 F.2d 435 (5th Cir. 1981); see also Voyageurs Region Natl Park Assoc. v.

Lujan, 966 F.2d 424 (8th Cir. 1992) (noting that an agency acting in departure from existing

policy must provide adequate explanation justifying action to avoid reversal as arbitrary and

capricious.), In light of both EPA and the Countys clear renunciation of their own well-

established, climate readiness and sea level rise policies (the above examples are not

comprehensive), the Court should apply a substantially heightened degree of scrutiny of the

consent decree in the fairness hearing.

D. The Draft Decree Capital Plan Is Illusory And Will Force The Court

Into The Role Of Sewer Czar.

Rather than undertaking an analysis of the impacts of climate change up front and prior to

selection of the long term capital projects in the decree, the County prefers to kick the sewage

can down the road, hoping that it can obtain modifications of the substance and timing of the

capital projects from the Court, utilizing the wide-open, Modification provision in the draft

decree. But, climate change is not the only significant variable that is not addressed in the draft

consent decree, which will likely result in multiple modifications to the capital projects .

Ocean discharge is the primary means by which the North District and the Central

District treatment plants dispose of wastewater. Those plants discharge approximately 196

million gallons of wastewater into the ocean every day (and much greater volumes during storms

and wet weather). Miami-Dade Water and Sewer (last updated June 12, 2013),

www.miamidade.gov/water/. Florida law requires, however, that the County discontinue use of

[i]ntegrat[ion] [of] future climate change impacts into community and government decision-making forcapital, operational, and land-use issues.Id. at 71, 77 (emphasis added).

http://www.miamidade.gov/water/http://www.miamidade.gov/water/http://www.miamidade.gov/water/


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its two ocean outfalls as the primary means of wastewater disposal by 2025. Fla. Stat.

403.086(9). This same law also requires the County to beneficially reuse sixty (60) percent of

the water that would otherwise have been discharged through the ocean outfalls (or beneficially

reuse that volume from some other source). Finally, the law requires that Miami-Dade County

submit to the State a detailed plan describing how it will fund and come into compliance with the

outfall phase-out byJuly 1, 2013.11 The requirement to eliminate use of the outfalls and the need

to find a reuse or disposal option for one hundred ninety-six (196) million gallons of wastewater

every day will dramatically change not only how the North and Central plants will operate in the

future, but also how the collection and transmission system will be designed.

12

Rather than

include the changes in the capital projects that will be required to comply with the ocean outfall

phase-out law, however, the proposed decree kicks this sewage can down the road stating:

[t]he Parties acknowledge that Miami-Dades implementation of the OceanOutfall Legislation may impact the scope and scheduling of certain capitalimprovement projects identified in Appendix D of this Consent Decree.Notwithstanding any other right Miami-Dade may have to seek a modification tothis Consent Decree, the Parties therefore acknowledge that Miami-Dade mayrequest of EPA and FDEP modifications to the scope and scheduling of suchcapital improvement projects as set forth in Appendix D.

(DE 25 Ex. 1 at p. 60.)

This admission makes the proposed zero sea level rise consent decree merely an

agreement to agree, which does not reach the level of an enforceable contract. As a result of

the State of Floridas Ocean Outfall Phase-Out Law and the Countys failure to address climate

11

The Countys Ocean Outfall Phase-out Plan, which must be submitted to the State on July 1 has not yet beenapproved by the County Commission, nor has the Commission authorized the Plan to be submitted to the State.12 According to the County: [t]he diversion of flow from the outfalls will require significant rerouting of thecollection system, which has more than 5,000 miles of pipe and 1,000 pump stations. It will also involve substantialchanges in the wastewater treatment processes to produce reclaimed water suitable for either irrigation, power plantcooling, or groundwater replenishment to enhance the Everglades water management system as mandated by thelegislation. The additional costs to comply with the Ocean Outfall Legislation, including planning, design, landacquisition, permitting, and construction, are currently estimated to exceed $4 billion. Miami -Dade Water andSewer Dept, Chapter 2008-232 Laws of Florida Wastewater Disposal/Ocean Outfalls (Section 403.086 (9), FloridaStatutes) Progress Report: Progress through December 31, 2009, 1 (2009).



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impacts, it is highly likely the County will quickly and repeatedly drag the Court into complex,

fact-intensive rulings on its requests to modify the decree and the capital projects list. This

approach renders the capital project list and much of the consent decree illusory. 13 This likely

scenario will place a tremendous burden on the Court to oversee the multi-billion dollar

rebuilding of the Countys sewage treatment plants and transmission system through a series of

ad hoc consent decree modifications. A far better approach, as recommended by Berry-Alvarez,

is to look at the ocean outfall phase-out issues at the same time the County examines the impacts

of climate change, reach an informed decision regarding the future use and viability of the plants,

and then identify the cost-effective, capital projects -- thereby diminishing any need for major

modifications to the decree, except in extraordinary circumstances.14

The impacts of climate change, in addition to the changes resulting from compliance with

the ocean outfall phase-out law, will require significant changes to the capital projects attached

13 Plaintiff/Intervenors have included APA claims in their Complaint in Intervention and in their Citizens Suitagainst U.S. EPA, the gravamen of which is that the NPDES renewal application for the Central Districts ocean

outfall NPDES permit has been pending for a decade. In their complaints, the Plaintiff/Intervenors ask that the Courtorder U.S. EPA to make a decision to grant or to deny the permit as quickly as possible. If U.S. EPA determines thatthe discharge does not meet Clean Water Act standards and denies the permit or restricts use of the outfall in anysignificant manner, this would also impact the Countys capital projects and timing. Thus, the Courts resolution ofthe Plaintiffs/Intervenors APA claim is integrally related to the approvability of the consent decree.14 A consent decree lodged with the Court, which the parties themselves anticipate will require significantmodifications, will not be approved as contrary to the public interest. U.S. v. City of San Diego, Ca., No. 88-1101-B,1994 WL 521216 (S.D. Cal. March 31, 1994). In City of San Diego, a Clean Water Act consent decree was lodgedwith the court, requiring the City to implement certain capital projects identified in the decree for the purpose ofupgrading and expanding the Citys wastewater treatment system. The Court deferred ruling on the governmentsmotion to enter the decree to give the City time to undertake a study to determine whether it could meet applicablestandards in a more effective and less expensive manner than that required by the draft decree. The City found that itcould and argued that entering the decree was not in the public interest. The United States argued the decree should

still be entered and then modified and amended as necessary. The District Court rejected the governments argumentstating: [t]he [modifications] will make the system nothing like the parties originally had in mind. The Court isnotconfident that its discretion would be broad enough to rectify all the changes needed if the issues are raised in thecontext of a motion to modify a document previously found to be in the public interest. This is not to say thatwhatever CD may be approved by the Court will not need to be modified over the years. The Court would expectthat any CD might have to be modified as necessary to recognize changing conditions. But this CD would requireimmediate and extensive hearings for modificationsIt seemsthe wrong way to start a CD relationshipThe CDwould sentence the supervising Court to constantly hearing motions attempting to modify the [consent decree]. Id. at*8. City of San Diego is this case.



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to the draft consent decree. It is not in the public interest to approve the proposed capital project

list when it is so abundantly clear that it will require major modifications. Nor is it in the public

interest to virtually guarantee that a substantial amount of the Courts valuable time will be used

to hear a succession of motions to modify the decree, when these issues could be resolved, if the

County would first employ the sound science and engineering studies, as detailed in the

Berry/Alvarez affidavit, and then offer cost-effective, climate ready capital projects to be

included in the decree.

CONCLUSION

Plaintiffs zero sea level rise consent decree fails to take climate change impacts (e.g.,

sea level rise, storm surge, and flooding) into account in the rebuilding of the Countys sewage

collection, transmission and treatment system. Ignoring climate impacts in the planning process

prior to the selection of capital projects violates both federal and local policies. By allowing

selection of the capital projects without consideration of the impacts of climate change, including

sea level rise and storm surge, the EPA cannot assure this Court that the Countys compliance

with the decree will result in routine compliance with the CWA. Moreover, by kicking the

climate change and the ocean outfall cans down the road, the parties to the decree will be forced

to seek multiple modifications to the decree in the future, rendering the current capital projects

list illusory, at best. The better approach, the one consistent with federal and local policies, and

as outlined in the Berry-Alvarez declaration, is to assess climate impacts and elimination of

ocean outfalls before committing to a $1.5 billion capital plan. Failure to do so renders the

decree unfair, unreasonable and contrary to the public interest.

DATED: June 28, 2013



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Respectfully submitted,

By: s/James M. PorterJames M. Porter, P.A, Fla. Bar No. 4432399350 S. Dixie Highway, 10th FloorMiami, Florida 33156Phone: [email protected]

-and-

Paul J. Schwiep, Fla. Bar No. 823244COFFEY BURLINGTON, P.L.2699 South Bayshore Drive, PenthouseMiami, Florida 33133Phone: 305-858-2900Fax: 305-858-5261

[email protected]

-and-

Julie Dick, Esq., Fla. Bar No. 86455Abraham Law Group151 Crandon Blvd., #100Key Biscayne, FL 33149Phone: 786-224-4555Fax: [email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 28, 2013, I electronically filed the foregoing

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being

served this day on all counsel of record on the Service List below via transmission of Notice of

Electronic Filing generated by CM/ECF.

s/Paul J. Schwiep

SERVICE LIST

Rachel Kamons, Esq., Trial [email protected] Enforcement SectionEnvironment and Natural Resources DivisionUnited States Department of Justice601 D Street NW, Suite 6031Washington, DC 20044Telephone: 202-514-5260Facsimile: 202-616-2427

Jonathan A. [email protected] Department of Legal AffairsThe Capitol PL-01Tallahassee, FL 32399-1050Telephone: 850-414-3300Fax 850-414-9650

Barney Jack Chisolm, [email protected] Dept. of Environmental Protection3900 Commonwealth Blvd.Mail Station 35Tallahassee, FL 32399-3000Telephone: 850-245-2242Fax: 850-245-2301

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Exhibit 1

Case 1:12-cv-24400-FAM Document 31-1 Entered on FLSD Docket 06/28/2013 Page 1 of 53


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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

Plaintiff,

v.

METROPOLITAN DADE COUNTY,MIAMI-DADE WATER AND SEWER AUTHORITY DEPARTMENT, and theSTATE OF FLORIDA,Defendants

And,

BISCAYNE BAY WATERKEEPER

465 Ocean Drive, #417Miami Beach, FL 33149,Plaintiff-Intervenor

And,

JUDI KOSLEN251 Galen Drive, Apt. 116Key Biscayne, FL 33149,Plaintiff-Intervenor

DECLARATION OF RICARDO A. ALVAREZ

1. My name is Ricardo A. Alvarez. At the request of counsel for Biscayne Bay Waterkeeper(BBWK), I have reviewed a PowerPoint presentation titled Sea Level Rise Impacts at

Miami-Dade Water and Sewer Wastewater Treatment Facilities (See EXHIBIT A) dated

February 2013, prepared by Hazen and Sawyer, Environmental Engineers and Scientists,

under contract to Miami-Dade County Water and Sewer District, and the documents and

materials respectively identified as EXHIBIT B, and EXHIBIT C. It is my understanding that

these are materials produced or referenced on this subject by the County to the attorneys for



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BBWK1. It is also my understanding that the capital projects that are recommended by the

Countys consultants (Hazen and Sawyer) to protect the Countys three wastewater treatment

plants from sea level rise and storm surge impacts are not included or otherwise reflected in

the proposed Consent Decree approved by the Board of County Commissioners or in the

Capital Improvement Projects made a part of that proposed Decree. I have also reviewed

other relevant documents, attached herewith and respectively identified as EXHIBIT D,

EXHIBIT E, EXHIBIT F, EXHIBIT G, and EXHIBIT H2.

2.

I have previously provided my background and credentials in my first, joint affidavit with Dr.

Len Berry, dated Feb. 5, 2013.The purpose of this affidavit is to render my opinion relative to

the contents of above mentioned presentation, hereinafterH&S Study orH&S (attached

herewith as EXHIBIT A), in the context of the vulnerability of Miami-Dade Water and

Sewer (WASD) Wastewater Treatment Facilities (WWTPs) and proposed renovation

projects incorporated in the proposed Consent Decree approved by the Board of County

Commissioners and the Capital Improvement Projects made a part of that proposed Decree.

1EXHIBIT B:Adaptation Strategies. Surge Analysis (2013-2060); 4 pages (2013), Hazen & Sawyer Environmental

Engineers and Scientists. A list of all documents produced to the attorneys for BBWK by the County regarding the

Hazen and Sawyer study and reviewed by me in developing this affidavit is included in EXHIBIT C-1, attached.

EXHIBIT C: Surge Analysis (2013-2075); 3 pages (2013), Hazen & Sawyer Environmental Engineers and Scientists.2 EXHIBIT D: The Role of Mangroves in Attenuating Storm Surge; K. Zhang et. Al. (2012) Estuarine, Coastal and Shelf

Science 102-103 (2012) pp. 11-23.

EXHIBIT E: Planning for Sustainability: A Handbook for Water and Wastewater Utilities; EPA-832-R-12-001

(February 2012). U.S. Environmental Protection Agency.

EXHIBIT F: Climate Change and Water Resources and Management: An EPA Perspective; J. D. Scheraga, Ph.D. (May

2013); Power Point Presentation. U.S. Environmental Protection Agency.

EXHIBIT G: Climate Change Future Federal Adaptation Efforts Could Better Support Local Infrastructure Decision

Makers;GAO-12-242 (April 2013), U.S. Government Accountability Office.

EXHIBIT H: High-Risk Series: An Update; GAO-13=283 (February 2013), U.S. Government Accountability Office.



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3. Having reviewed the H&S Study, as summarized in the PowerPoint slides, I have developedcertain opinions regarding this material and state them to a reasonable degree of scientific

certainty. To facilitate the Courts review of my opinions, I start with a Summary of

Findings and follow with commentary in the same order as that of pertinent slides in the

presentation, and comments that are applicable to the H&S Study.

4. SUMMARY OF FINDINGS:5. In my opinion, again stated to a reasonable degree of scientific certainty, the H&S Study lacks

the specificity, depth and sequence of steps to qualify it as a complete assessment of

vulnerability and hazard mitigation analysis for the WASDs three WWTPs. Consequently, it

should not be used by WASD, the County, the EPA, the Court or the public as a substitute for

comprehensive site-specific studies, such as those that have been recommended in the

Declaration by Dr. Leonard Berry and Mr. Ricardo A. Alvarez of February 5, 2013. The H&S

Study is also lacking a contextual frame of reference. By failing to make reference to the

frequency of impacts in Miami-Dade by tropical cyclones. which are the drivers of storm

surge and wave impacts continuously being exacerbated by sea level rise, the H&S Study

does not provide an adequate basis for critically-important decision-making. Hurricane,

tropical storms, extreme rain events, storm surge and wave impacts, coastal flooding and

beach erosion are not rare, but expected annual events in Southeast Florida. In view of this

specific vulnerability of our region, it is imperative that all components of the built-

environment, but above all critically essential infrastructure such as wastewater treatment

plants, be designed and built to withstand the expected impacts from these natural hazards and

be able to continue to operate reliably under the expected natural climate conditions of this



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specific geographic location. According to the National Hurricane Center (NHC) based on a

history of 14 impacts from 1900 to 2010 Miami-Dade County has a 12.7% annual chance of

being hit by a major hurricane (category 3 or higher), and a higher 16.7% probability of

annual impact by a hurricane of any category. Another study3 using a 9-year running mean

found that, by 2005, there were more than twice as many hurricanes generated in the north

Atlantic than a century ago, even though the total number of tropical cyclones generated

worldwide has remained basically the same at around 90 per year. Regarding this, it is

important to note that these north Atlantic hurricanes are the ones that threaten Miami-Dade

County, and that each hurricane that is generated in the basin is capable of generating

damaging storm surge impacts to the built environment and infrastructure in the coastal

region, even if the storm does not make landfall and only tracks nearby (i.e., Hurricane Sandy

2012). This vulnerability must be continuously addressed by public entities, which would do

well in using the same and its continued exacerbation by sea level rise as an opportunity to

properly study and address the specific vulnerability of critical local infrastructure, such as the

wastewater treatment infrastructure, especially those of the three WWTPs in Miami-Dade

County.

6. The H&S Study does not provide a solid and reasoned foundation for decision-making byMiami-Dade County authorities relative to measures that need to be taken to ensure reliable

performance and continuity of function of its WWTPs, and its overall waste water

infrastructure, by reducing the potential for damage from the impact of natural hazards,

including that of storm surge and wave action, which are currently being exacerbated in

Miami-Dade County by accelerating sea level rise.

3G. Holland , National Center for Atmospheric Research (NCAR) and P. Webster, Georgia Institute of Technology



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7. The H&S Study includes useful information of the kind that would be incorporated in someearly phases of an assessment of vulnerability, but, it is also flawed for a number of reasons

that are specifically addressed in comments that follow.

Given the scope and importance of the capital improvement and renovation projects Miami-

Dade County is considering, at a cost of $1.5 billion, for its wastewater treatment and

collection infrastructure, and given how critical WASDs wastewater infrastructure,

including the three WWTPs, is for the health and welfare of the residents of this County, in

my opinion, stated to a reasonable degree of scientific certainty, Miami-Dade County

authorities would err greatly, if they based decisions relative to the renovation of its waste

water infrastructure solely on the basis of the H&S Study and the materials that have been

provided for my reviewExhibits A, B and C and C-1.

8. PURPOSE (SLIDE 2) -The presentation outline shown on Slide 2 summarizes the

methodology and purpose of the H&S Study. From this slide, I conclude that H&S have:

Assessed the current and future potential for flooding from storm tides and SLR at

each of the WASD WWTPs;

Assessed potential damage;

Identified hazard mitigation measures and estimated their costs;

Reached conclusions regarding potential impacts and damage, and

Made recommendations to WASD.

From this outline, it is clear that the main purpose of the H&S Study was to provide

information, share conclusions and offer recommendations intended to assist WASD in



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making decisions relative to the current and future vulnerability of its three WWTPs and the

need to incorporate protective measures against flooding.

Regarding this, I have determined the following flaws:

a) The H&S Study is narrowly focused on sea level rise (SLR);

b) Flooding is the only hazard mentioned. By using a single-hazard rather than a multi-

hazard approach, such as is recognized and/or practiced among professionals in the

field and by the Multihazard Mitigation Council of the National Institute of Building

Sciences (NIBS), the Federal Emergency Management Agency (FEMA) of the

Department of Homeland Security, the Council on Disaster Risk Management of the

American Society of Civil Engineers (ASCE), and by the State of Florida Enhanced

Hazard Mitigation Plan4, the H&S Study portrays only a partial and limited picture of

the true, site-specific vulnerability at each of the Countys three WWTPs;

c) H&S has selectively focused on depth of water as the main cause of potential damage.

Although storm surge is mentioned in later slides, it is only included in terms of how

high the water will be, but not in terms of how fast the water will flow or how high

above the water level the waves will be. By including neither the velocity of flow of

storm surge nor waves, H&S has left out the two most damaging components of

climate vulnerability, in terms of energy of impact, from hydrodynamic pressure and

4Multihazard Identification and Risk Assessment

A Cornerstone of the National Mitigation Strategy(1997)

Federal Emergency Management Agency.

www.fema.gov/multi-hazard-mitigation-plan-status

Multihazard Mitigation CouncilNational Institute of Building Sciences (NIBS):www.nibs.org,

www.nibs.org/mmc

http://nibs.org/MMC/mmchome.html

Multihazard Issues in the Central U.S. Understanding the Hazards and Reducing the Losses; Council on

Disaster Risk Management, Monograph No. 3 (2008) ISBN 978-0-7844-1015-8, American Society of Civil

Engineers (ASCE)

http://www.nibs.org/http://www.nibs.org/http://www.nibs.org/http://www.nibs.org/mmchttp://www.nibs.org/mmchttp://nibs.org/MMC/mmchome.htmlhttp://nibs.org/MMC/mmchome.htmlhttp://nibs.org/MMC/mmchome.htmlhttp://www.nibs.org/mmchttp://www.nibs.org/


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breaking-wave impact5, which are also water depth-dependent and will, therefore,

grow progressively worse over time, due to their exacerbation by sea level rise6;

d) Also, there is no mention in the H&S materials of wind or flying debris, extreme rain,

or floating debris, all of which are hazards that have a high probability of acting

concurrently with the occurrence of coastal flooding caused by storm surge;

e) In bullet #3 in this slide, H&S refer to a Development of Future Conditions. Here

again, such future conditions can only depict a minimally partial picture of expected

conditions, due to the exclusion by H&S of those factors already mentioned here, as

well as others, such as the current and projected acceleration in the rate of SLR;

f) In my opinion, the H&S Study, even at this early part of their presentation outline, is

missing two critical steps that are required to complete a comprehensive site-specific

assessment of vulnerability: (i) Characterization of impact, and (ii) Potential Damage,

both of which are needed before a professional in this field can define what hazards

are being defended against, in order to then identify Mitigation Approaches and

Costs mentioned in bullet #5 of this slide;

g) Bullet #5 refers to Mitigation Approaches and Costs. There is no mention here or in

the rest of the slides of the benefits of mitigation in terms of reduction of potential

damage to the WWTPs to be derived from each proposed hazard mitigation measures.

5ASCE STANDARD ASCE 7 Minimum Design Loads for Buildings and Other Structures: Hydrodynamic Loads; Wave

Loads; Breaking Wave Loads: American Society of Civil Engineers (ASCE)

ASCE STANDARD ASCE 24 Flood Resistant Design and Construction: Flood Hazard Areas Subject to HighVelocity Wave Action American Society of Civil Engineers (ASCE)

Coastal Construction Manual3rd Edition P-259: Federal Emergency Management Agency (FEMA)

Engineering Principles and Practices of Retrofitting Flood Prone Residential Structures 3rd

Edition FEMA

55: Federal Emergency Management Agency (FEMA)6Global Sea Level Rise Scenarios for the United States: National Climate Assessment; NOAA, December 2012

Sea Level Change Considerations for Civil Works Programs; USACOE, EC-1165-2-212

Sea Level Change Curves; USACOE, corpsclimate.us/ccaceslcurves.cfm

BBWK Declaration by Dr. Harold R. Wanless, and Dr. Brian J. Soden : December 18, 2012.



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The benefits of each proposed mitigation alternative must be estimated and quantified

for the purpose of performing benefit-cost analysesof various identified alternatives,

which will be required for proper decision-making by WASD and the BOCC, EPA,

and, ultimately, the Court.

9. LOCATION AND INUNDATION (SLIDE 3)This slide presents a map showing part of the coastal region in Miami-Dade County with

inundated areas delineated by color shading. There is no reference given as to the source of

this inundation map and, there is no caption or explanatory legend about what specifically

is depicted on this map. Although the map clearly shows all three WWTPs are subject to

coastal inundation, without the source and explanatory legend it is unusable in assessing the

relative vulnerability at each site7.

10.STORM SURGE AND TIDE (SLIDE 4)This slide shows a graphic explaining the concept of storm surge and storm tide. However,

the map does not show wave action that occurs above the still-water level of storm surge or

the effect of sea level rise. Consequently, it does not provide a complete or accurate picture

of the hazards associated with storm tide.

7On May 1, 2013, the County made its new and updated storm surge planning maps available to the public. See,

Miami-Dade County Fire & Rescue Dept. Office of Emergency Management: Storm Surge Planning Zones.

http://tinyurl.com/md-hurricanezone. All of the Countys three wastewater treatment plants are located in the

Zone A (most vulnerable) of the storm surge areas in the County.

http://tinyurl.com/md-hurricanezonehttp://tinyurl.com/md-hurricanezonehttp://tinyurl.com/md-hurricanezone


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11.THE STORM OF RECORD (SLIDE 5)Hurricane Andrew (1992) is selected as the storm of record and, the level of the storm

surge it generated is used as a benchmark for what H&S identifies as the current (2013)

level of coastal storm tide.

12.The selection of Hurricane Andrew introduces subjective limitations into the H&S Studycreating a bias in the analyses of storm tides that follow, thereby additionally diminishing the

value of the study in proper decision-making.

Hurricane Andrew was a rather compact tropical cyclone with a small radius of tropical

storm and hurricane strength winds, which moved rapidly during its approach to the coast

from the east, as well as during landfall and while traversing the Florida peninsula. Because

of these characteristics, Hurricane Andrew is not a reasonable example to set a benchmark

for storm surge vulnerability analysis in the Southeast Florida region. There have been other

hurricanes that have impacted this region, such as the 1926 Great Miami Hurricane, the 1928

Lake Okeechobee Hurricane and others, with some of them generating larger storm surge

than Hurricane Andrew.

In this regard, more relevant than the intensity of the hurricane is the size of the overall

tropical cyclone and the extent of tropical storm and hurricane strength winds coupled with

the forward speed of the system, which are the major contributors to the characteristics of

storm surge and wave action. Based on the information at hand, it does not appear that H&S

took these factors into account, electing instead to base their study exclusively on the

characteristics of a single event, Hurricane Andrew.



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By using one storm as a benchmark8, the H&S Study elected to ignore other just as likely

tracks and angles of attack toward landfall, forward speed of the system, and, especially, the

extent of tropical storm and hurricane strength winds, the consideration of which would, in

my opinion, lead to reasoned decision-making. These flaws resulted in a limited and

incomplete representation of expected, site-specific impacts, including a worst-case impact.

Because of this, the H&S work should not be used as the basis for making reasoned decisions

with respect to site-specific risk and mitigation at the WASDs three WWTPs.

One additional comment is that the single storm approach, especially when the storm is

Hurricane Andrew, used for the H&S Study, differs considerably from the Numerical Model

Ensemble method, based on using the Maximum of Maximum Envelopes of Water (MOM) 9

for a worst case scenario in a particular basin, which is predominantly accepted and

extensively used by the professional emergency management, meteorological, scientific and

engineering communities for purposes of assessing vulnerability, and risk or for purposes of

hazard mitigation analyses.

13.RISK ANALYSIS (SLIDE 6)This slide is confusing. Some of the information given here is inconsistent with that provided

in later slides (i.e., slides #22, 24 and 25). There are no labels or references to sources to

identify the values shown, so one is left to make assumptions as to what they are. Assuming

8 In this regard it is important to note that in an email communication of February 21, 2013 from Jason Page of

H&S to Howard J. Fallon, Jr., P.E., Chief of WASD Planning Division, there is indication that the inclusion of other

non-Andrew storm intensities was discussed, but not acted on. From this it appears WASD made the decision to

use a one-storm benchmark and not explore other possible impacts.9

This method numerically models the surge, and resulting flooding conditions from looking at a family of many

storms tracking over the basin of interest under a wide range of different conditions to generate a Maximum

Envelope of Water (MEOW) for each one, to then combine them into a Maximum of Maximum (MOM). This

method takes into account initial tide levels, forward speed of storm, and it takes into account the uncertainty of

forecast. National Hurricane Center (NHC), NOAA: www.nhc.noaa/gov/surge/meowDescrip.php



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the values on the left vertical axis, 10.0, 15.0, 20.0, 25.0 and 30.0 represent elevation in feet

(ft.), there is no point of reference provided to specify what is being depicted. Above what is

the first value of 10.0 ft.? NGVD, NAVD, current mean sea level (MSL) or what? From the

graphic, the 10.0 ft. value appears to represent elevation of the ground. Should this be

correct, then additional questions arise: elevation of the ground at what location? Is this the

ground floor elevation for a given building at one specific WWTP or is it typical for all three

WWTPs?

The second value, 15.0 ft., is identified as Post Andrew Storm Surge. It is not clear as to

what this value represents. By qualifying it as a "Post Andrew" surge value, it leads one to

treat it as a level of storm surge from an event that occurred after Hurricane Andrew. If this is

the case, what event, when did it happen, and, most importantly, what is the relevancy of it?

Why is it included here? If the 15.0 ft. value actually represents the storm surge height from

Hurricane Andrew, then the question is: why is this number different than the 16.9 ft.

provided in later slides? Is the 15.0 ft. value the height of storm surge generated by Hurricane

Andrew at a specific location?

From the questions that are raised by the H&S materials, it is clear why this slide is

confusing. Also confusing is the slide title Andrew changes the risk analysis. What does it

change? How does it change it? Changes it from what?

14.METHODOLOGY (SLIDE 7)This slide is confusing as well, and, it also introduces information that is inconsistent with

that offered later on in this presentation.



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This slide makes references to New York City (assuming the initials NYC stand for New

York City) and also to a study identified as NPCC 2009 ReportClimate Change in NYC.

Within the context of New York City and climate change, NPCC stands forNew York City

Panel on Climate Change, which is the blue ribbon panel assembled by Mayor Bloomberg

to review proposed solutions and advise on how to best prepare for anticipated climate

impacts over time.

There is no clear or apparent justification for including these references to New York City in

a study addressing issues in Miami-Dade County, and, the fact that they are part of this

presentation, in my opinion, raises doubts as to how much this study is really based on

Miami-Dade specific data and parameters or how much it may be an just an adaptation from

a study completed by H&S for another location, i.e., New York City, which has a totally

different set of conditions, such as bathymetry, coastal geomorphology, coastal geology, than

those that exist in Miami-Dade County..

This slide also introduces the concept of a critical surface water elevation that is quantified

as the local 100-year flood elevation plus 30 of SLR, without specifying if the elevation is

based on NGVD or NAVD or some other widely acceptable point of reference. In the

absence of a reference to a specific datum, or how it was calculated, it is impossible to

determine how relevant it is, if at all, to the Miami-Dade specific conditions. On the other

hand, this specific piece of information introduces yet another parameter that is inconsistent

with other water elevation limits used throughout the H&S Study.

Beyond the above, the flow chart representing what is called the overall methodology, the

H&S material leaves out critically important components that must be part of an analysis of

this kind, including, without limitation, a characterization of expected impacts at set time



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intervals, an assessment of potential damages under expected impacts, the identification and

quantification of benefits derived from specific mitigation/adaptation alternatives, and

consistency in meeting operational reliability requirements of the CWA.

All of the factors mentioned above raise serious questions as to the adequacy of the

methodology used to complete the H&S Study. In turn, this also raises the issue as to the

soundness of making critically important decisions on the basis of conclusions and

recommendations from this study. In my opinion, stated to a reasonable degree of scientific

certainty, the County cannot reasonably use the H&S materials alone to base its decisions as

to what to do with the Virginia Key plant or the other two wastewater plants, either in terms

of adaptation measures or in the consideration of alternatives (e.g., relocation). Based on

proper vulnerability studies and cost-effectiveness analysis, the BOCC may well decide to

decommission the Virginia Key plant and, consequently, expand the capacity of the proposed

4th wastewater plant in the Western part of the County. I have not seen and am not aware that

the County has performed a professional and complete study of vulnerability and alternatives

for its 3 wastewater treatment plants, such as Dr. Berry and I described and recommend in

our affidavit of February 5, 2013.

15. DEVELOPMENT OF FUTURE CONDITIONS (SLIDE 8)Slide 8 addresses factors that will contribute to future storm surge. The four factors listed are

indeed contributors to storm surge characteristics, but other critically important factors have

been left out. Ignored factors include the following:

a) The horizontal component of sea level rise, which is indicative of potentialshoreline retreat. In Southeast Florida, given the slope of the beach and continental

platform, such horizontal component may range from 150 to 200 times the rise in sea



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level. To put this matter of the horizontal component in perspective, consider that the 30

of SLR alluded to in this presentation would equate to a horizontal component of retreat

ranging from 375 ft. to 500 ft.

b) Tropical cyclone overall size (i.e., diameter) as a system;c) Radius of hurricane and tropical storm strength winds;d) Track, and more specifically worst-case angle of attack at landfall;e) Forward velocity of the system;f) Type of hurricane in terms of precipitation, i.e., wet versus dry storm;g)

Meteorological conditions, in terms of precipitation, prior to storm;

h) Wave action;i) Area and site-specific impact modifiers that may contribute to exacerbating or mitigating

the impact of storm surge. Attenuation is included in the list of factors, but there may also

be factors that have a totally opposite effect, meaning that they may make the expected

impact worse.

With so many factors left out of the methodology for developing future conditions, it is clear

that, whatever scenarios emerge from this H&S Study, they would, at best, provide an

incomplete and probably inaccurate picture of expected impacts from storm surge

exacerbated by sea level rise. Clearly, this is not the proper sound science and engineering

foundation for making such critically important decisions, involving more than $1.5 billion in

cost, relative to the safety and sustainability of the WASD WWTPs and, more importantly,

the health and welfare of the millions of residents of Miami-Dade County who depend on the

reliability and continued function of this critically essential infrastructure.



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16. S.E. FLORIDA CLIMATE COMPACT (SLIDE 9)The Southeast Florida Four-County Climate Change Compact (Four County Compact) is an

excellent and unique example of collaboration between four local governments, and

involvement by a representative societal cross-section of each county, including the private

sector, in establishing parameters to include sea level rise, and other climate change impacts,

in the planning and execution of publicly-funded projects. The Four County Compact is

indeed a national example, and also something that definitely belongs in any study of

vulnerability of the Countys critical infrastructure.

Having said that, there are, however, important concerns regarding, how H&S used the

studies produced by the Four County Compact in completing the H&S Study10, how this has

been presente

biscayne bay water keeper memo in response to plaintiff's notice of consent decree

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