Transcript Slide 1

RESTORE Update
Monroe County
Local RESTORE Act Advisory
Committee
Erin L. Deady, AICP, Esq.
Lisa Tennyson, Monroe County
September 26, 2014
Overview
1.
Introduction
2.
Various Funding Pots
3.
POT 1 and Local Process to
date
4.
Final Treasury Regulations
and Process for Accessing
Pot 1 funds
5.
Settlement Update
6.
Next Steps
7.
Questions
FLOW OF FUNDS FROM DEEPWATER HORIZON OIL
SPILL
(This Flow Chart was developed by the Ocean Conservancy.
It’s been adapted to provide additional clarity and detail. Chart info does
not include ind and bus claims or state econ loss claims)
IT’S COMPLICATED!
FLOW OF FUNDS FROM DEEPWATER HORIZON OIL SPILL –
Quick Recap
Criminal Penalties
OPA Responsible party pays
restoration costs:NRDA
Civil Penalties for Violating CWA – RESTORE Act
EARLY RESTORATION: NRDA
•
Who: The Oil Pollution Act authorizes NRDA to assess and
restore injuries after an environmental injury event. The
funding relies on the cooperation of the responsible parties,
which are obligated under the OPA to cover the costs of
restoration. So, NRDA trustees sought funds from BP and
other responsible parties.
The normal process would’ve been for NRDA to fully
assess and cost out the damages and restoration, then bill
BP. Because that process will take several years, BP
entered into a voluntary $1B agreement for “early
restoration.” Once the entire damages assessment is
completed, additional funds are expected.
•
Amount: $500M split equally among the five Gulf States
($100M to Florida), $100M to NOAA, $100M to Interior,
$300M to fund additional state projects selected by the
Trustees. Three phases; in third phase. Beyond “early
restoration” – NRDA still assessing full extent of injuries,
could take several more years to complete.
•
Process: NRDA determined projects. All projects must be
directly related to injury.
•
County Actions: None; no injury, so no requests
submitted. All projects have been in Panhandle.
CRIMINAL PENALTIES: NFWF
• Who: Most of the criminal penalties are being directed to
the National Fish and Wildlife Foundation (NFWF) which
has created a new fund called the “Gulf Environmental
Benefit Fund”.
• Amount: BP and Transocean’s criminal settlements direct a
total of $2.5B to NFWF.
A total of $356M will be spent on Florida projects over the
next five years.
• Process: Funds are to be used for environmental projects
that remedy harm or reduce the risk of harm to natural
resources that were impacted by or within “reasonable
proximity” to impacts from the oil spill. All approved projects
for Florida have been in Panhandle.
• County Actions: Multiple discussions with NFWF related to
the County’s water quality projects, but they don’t fit criteria.
A number of applications have been submitted from
environmental organizations within Monroe County, such as
Bonefish Tarpon Trust and the Nature Conservancy.
Civil Penalties: RESTORE ACT
• The RESTORE Act (2010) direct 80% of all civil fines or
penalties to be directed back to the impacted communities, and
set up a framework for the new program. This is the first time
that such funds were directed back to impacted communities.
Impacted communities are all of those communities that abut the
Gulf, irrespective of whether or not they were “oiled.”
• In Monroe County, we are most focused on the RESTORE Act
funding, as this requires our direct participation and impacts us
the most directly.
• Within the RESTORE Act program, there are 5 pots or buckets
of funding to restore and protect the natural resources,
ecosystems, fisheries, habitats, beaches, wetlands and economy
of the Gulf coast region.
• The pots most impactful for the County are Pots 1, 2, and 3 (the
“local pot”, the “consortium pot” and the “council pot”
respectively.)
Each of these pots is unique and will be
addressed in the following slides.
• Pots 4 and 5 will be used for research and monitoring and will be
directed to the NOAA Gulf Restoration Science Program and the
Centers of Excellence in each State. In Florida, that is FIU.
(This power point will not be addressing these buckets in any
greater detail.)
RESTORE Pot 2 = Federal Pot=
Council Allocation
• Who: This pot is controlled by the Gulf Coast Ecosystem Restoration
Council. There are 11 members on the Council; representatives of
the Governors of each of the five Gulf states (Fl, Al, Miss, La, and Tx)
and six federal agencies (Commerce, Interior, DHS, EPA, Ag, Army.)
The Council is not a federal agency and operates independently of any
federal agency.
• Amount: There is $180M currently available. This represents 2 of the
3 payments to Treasury from Transocean settlement. Third payment
in March will add another $60M (approx.) for a total of $240M.
• Guiding Document: Projects to be considered for funding from this
pot must be consistent with the Council’s Comprehensive Restoration
Plan’s goals and objectives (environmental, restorative of the Gulf
waters and ecosystems, large scale, etc.)
• Process: The Council has issued preliminary application submission
and evaluation guidelines. Projects must be nominated by one of the
Council members. We are uncertain how this nomination process will
work, or how it will utilize the applications that were previously
submitted into the DEP portal.
• County Actions: The County offered formal comments to the
Council’s draft Comp Plan and to the draft Treasury rule; County met
with Council’s ED to offer concerns/rec on Council procedures; County
and municipalities submitted projects into the DEP portal. The County
just met with DEP in Tallahassee this week to learn more about how
the State will prioritize those projects.
RESTORE Pot 3=Gulf Consortium Pot=
Impact-based State Allocation
• Who: The Gulf Consortium, an intergovernmental group of the 23
Gulf coast counties in Florida will plan how to spend Florida’s share of
this pot. Monroe County is a member of the Consortium.
Commissioner Neugent is the County’s rep on the Consortium, and for
the past two years has been appointed to the Executive Committee.
• Amount: There is $180M currently available (going up to $240M); this
will be divided among the five states according to a formula based on
pop, distance from rig and miles of oiled shoreline. These amounts
have not yet been determined. However, each state is guaranteed at
least 5%, so we know for sure that Florida will receive at least $9M.
Some of these funds will be used to develop the SEP.
• Guiding Document: The Gulf Consortium must develop a State
Expenditure Plan, which will determine how the funds will be spent.
The Consortium is currently evaluating firms to help it develop the
SEP. (County Administrator Roman Gastesi is the Chair of the
Consortium’s evaluation team.) The Council oversees Pot 3 as well as
Pot 2. It must approve the SEP.
• Process: Not yet developed. Project criteria, selection and application
process will be determined as part of the drafting of the SEP.
• County Actions: Member of GC; Member of Executive Committee;
Member of SEP Firm Evaluation Committee; regular attendee at
monthly GC meetings; major presentation to GC on County-wide water
quality issues and priorities.
RESTORE Pot 1 = Local Pot =
Direct Component
• Who: Monroe County will determine how to distribute the
funds in this pot. All funds must be expended in
accordance with the Restore Act, Treasury rules, and
federal grant guidelines. The Department of Treasury will
administer the local pot.
• Amount: $1.16M.
• Guiding Document: To access these funds, the County
will have to develop a Multi-Year Implementation Plan
that outlines which projects the County wishes to fund, how
long those projects will take, how the County prioritized
and chose those projects, and the public input process.
• Process required:
 Public Input and local project criteria selection process
 Evaluate and rank projects
 Develop an MYIP; submit it to Treasury.
 After Treasury provides letter to proceed, each individual
project listed in the MYIP must complete and submit a
federal grant application.
Local Pot Process to Date
• BOCC convened Local Advisory Committee – with reps from all
county districts and municipalities, to make recommendations to
BOCC on how to distribute local pot dollars.
• BOCC passed Resolutions for by-laws and voting conflicts
• BOCC assigned staff member to coordinate and facilitate local
response
• BOCC established guiding principles; discussed and made
recommendations to local committee for project evaluation criteria
• Local Advisory Committee:
 Met three times (today’s 4th meeting);
 Refined a set of criteria in accordance with guidance from BOCC,
 Developed a project application with point system reflecting that criteria,
and
 Conducted a solicitation process.
 Process resulted in 46 applications with a total request of over $71M.
 Waited on Treasury regulations before proceeding with project evaluation
and ranking.
Local Pot Project Criteria
Statutory Project Requirements:
1. Each project is “designed to restore and protect the
natural resources, ecosystems, fisheries, marine and
wildlife habitats, coastal wetlands, or economy of the
Gulf Coast;”
2. Each project carries out one or more of the allowable
uses;
• Restoration and protection of natural resources,
ecosystems, fisheries, marine and wildlife habitats.
• Mitigation of damage to fish, wildlife, and natural
resources
• Implementation of a federally approved marine/coastal
management plan, including fisheries monitoring
• Workforce development and job creation
• Improvements to state parks in coastal areas affected by
the oil spill
• Infrastructure projects benefitting economy or ecological
resources, including ports
• Coastal flood protection and related infrastructure
• Planning assistance
• Promotion of tourism, including recreational fishing
• Promotion of consumption of seafood harvested from
the Gulf Coast region
3. Projects were selected based on “meaningful” or
“broad-based” public input;
4. Projects that are designed to protect or restore natural
resources must be based on the “best available
science.”
BOCC Guiding Principles:
• Project must meet the eligible uses and funding
conditions in the Act, and any Treasury
requirements.
• Projects provide positive direct environmental and/or
economic benefit to Monroe County.
• Projects are consistent with local government
comprehensive plans and community priorities.
• Projects incorporate other funding partners to fully
leverage RESTORE funds.
• No project can encumber all of the available funds in
the local pot.
Project Evaluation Criteria:
• Need/Impact: 20 points
• Financially Feasible, Cost-effective, Match: 15 points
• Technically Feasible: 5 points
• Ready to Implement: 10 points
• Completion Timetable: 10 points
• Measurable Environmental Benefits: 10 points
• Measurable Economic Benefits: 10 points
• Measurable Community Resilience Benefits: 5 points
• Complements Existing Efforts/Plans; Publicly
Supported: 5 points
• Complies with Federal, State, and Local regulations:
No points, all projects must demonstrate this.
• Demonstrated capacity to meet and manage federal
grant requirements: 10 points
Local Pot Project Submissions
Interim Final Treasury Rule
August 15, Comments due September 15, effective October 15
IFR addressed many concerns; were responsive, did not resolve pre-award costs
Confirmed that RESTORE will operate as a federal program – federal grant requirements,
financial and performance reporting, auditing, environmental compliance, etc. will apply
Established process for accessing local pot dollars
Direct Component Guidance and Application
Multi-year Implementation Plan - Narrative and Project Matrix
Project Grant Applications
What Regs Say About MYIPs
• Develop and submit MYIP (to Treasury)• Comply with Treasury Regulations
• Projects and plans must meet NEPA, CWA, Chapter 373,
F.S., etc.
• MYIP must certify: Conforming project purpose
• Meaningful public input (45 days)
• Best available science
• Applicable procurement requirements (think Stimulus/ARRA,
Davis Bacon, Buy American, etc.)
• Content of MYIP
• Phasing: Programmatic in nature or project specific?
• Each eligible activity requires a separate grant application
Treasury Rule Requirements for
Projects
Federal Grant
Requirements
OMB Uniform
Guidance
Environmental
Regulations
Assessment of
“risk”
Treasury
“Certifications”
Binding
Agreements
Reporting
Applicants will be
required to meet
all requirements
in an Award
Agreement
DUNS Number
NEPA, CZMA,
ESA, Magnuson,
MMPA, CWA
Clear Project
Schedule and
Budget
Will include
County’s Grant
Agreement with
Treasury
Procurement
Auditing
State
Environmental
Permitting,
Chapter 373 &
403, F.S.
Clear Outcomes
and Milestones
Stringent
Performance and
Reporting
Standards
Auditing for State
and Federal
Requirements
Will be managed
as Subaward or
Contract
Cost Principles: the Uniform Guidance
2 CFR 200
Audits
Allowable costs (tied to eligible activities)
Disbursements/Payments
Procurement v. Subaward
Recordkeeping
Reporting
Commenting on the Regs
What We Anticipated and Got
What’s Left to Resolve?
• Interim Final Rule (parts go into effect
immediately, also allowing for more input)
• Deferring to OMB Grant Guidelines
(Uniform Administrative Requirements,
Cost Principles and Audit Requirements
for Federal Grants, 2 CFR, Part 200)
• Advance money for planning (grant
applications for planning efforts)
• Plans can be phased, incremental and
modified over time
• Treasury’s view of NEPA (and MYIPs)
• Subawards and responsibility of local
governments over them
• Additional policies and procedures to be
developed over time (“guidance”)
• Planning activities are broad (includes
public engagement), not subject to 3%
cap
• Scope of Initial Grant Applications for
MYIPs. Initial application for grant funds
not limited to planning assistance to
develop a plan, but also include
reimbursement of pre-award costs,
administrative costs & all activities under
the purview of “planning assistance”.
• Development of Grant Management
Systems under Planning Assistance.
“One-time” grant management costs not
limited or modified in the future.
• Public Review of Updated or Revised
MYIPs and SEPs. Clarify if MYIPs and
SEPs that are modified, updated or
revised must undergo the same public
review as the adoption of the initial one.
• IFR Updates and Further Review. The
IFR should require that Treasury review
the Final Rule within a certain timeframe
and revise it if necessary.
• Guidance on Subawards and
Contracting for Projects. Need this
ASAP.
On the Horizon: Rules and Guidance
Uniform
Guidance
Best Available
Science
Documentation
for Projects
NEPA- further
rule
development
The “all bets
are off”
provision
Treasury has to
adopt its version
of Uniform
Guidance
Guidance for
demonstrating
BAS in
applications
Substantiating
“eligible
activities”
Categorical
Exemptions
Waivers from
Rules
Example preaward costs
May be by further
rule or
“Guidance”
document
Permitting
documentation
Environmental
Assessment
Further
modifications to
Rules
Environmental
Impact
Statements
Previous
analyses
Update on Litigation with BP
•
•
•
Three phases of litigation:
– Phase I- determine the liability of BP, Transocean, Halliburton, and
other companies and if they acted with gross negligence and willful
misconduct (February 25, 2013-April 2013).
– Phase II- how much oil spilled into the Gulf and who was responsible for
stemming and controlling the spill (September 30, 2013-October 2013).
– Phase III- how much BP will be paying in fines (status conference
March 21, 2014 to determine what new evidence and testimony to be
presented during penalty trial).
Gross Negligence determination 9/4/2014. This will be appealed.
CWA Penalty Phase III Trial set for January 20, 2015, with the trial expected
to last approximately three (3) weeks.
Settlements and Funds to Date
• MOEX Civil Penalties-- $70 million total with $10 million to State of
Florida.
• Transocean Civil and Criminal--$1 billion in Clean Water Act
penalties and $150 million dollars to National Fish & Wildlife
Foundation of which $21 million available for Florida projects.
• BP Criminal--$4 billion of which $2.394 billion paid over 5 years to
National Fish & Wildlife Foundation. ($335,160,000 for Florida
projects).
• Halliburton--$55 million to National Fish & Wildlife Foundation.
• Halliburton--$1.1 billion (court must approve to deal with class
actions, unknown distribution to trust funds and/or RESTORE)
Next Steps for Committee
(Now)
•
Local Committee to score each submission individually
•
Local Committee to meet publicly as group to discuss their scores, ask questions
of applicants, and re-score as necessary. (November, 2014 – NEED to
SCHEDULE THIS MTG.)
Final scores will be compiled; projects will be ranked according to score.
(November, 2014). Recommended ranking list will be posted to website.
Recommended ranking list will go to BOCC for review and project selection.
(December 2014)
Projects selected will form basis of MYIP; in-house staff and/or consultant to draft
MYIP (January/Feb 2014) -- Decision points for BOCC: who to draft, and whether or
•
•
•
not to apply for planning assistance grant to cover costs?
•
•
•
•
•
•
Draft MYIP will be brought to local committee for review and recommendations
(February 2014)
MYIP will go to BOCC, for approval (March/April 2014)
MYIP to be posted for 45 days
MYIP to Treasury (April/May 2014)
MYIP accepted by Treasury (date?)
Grant application and submission by each project in MYIP (date?)
(What about BP monies in future?? MYIPs can be phased and incremental.)
Website
All of this information and more can be found on
the County’s RESTORE Act website:
Monroe County http://www.monroecounty-fl.gov
>Programs> RESTORE
Google: RESTORE Act Monroe County
Questions?
[email protected]
954.593.5102
www.erindeadylaw.com