1. RESTORE Update Monroe County Local RESTORE Act Advisory Committee Erin L. Deady, AICP, Esq. Lisa Tennyson, Monroe County September 26, 2014 Erin L. Deady, AICP, Esq. Lisa Tennyson, Monroe County September 26, 2014

2. 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

3. FLOW OF FUNDS FROM DEEPWATER HORIZON OIL SPILL IT’S COMPLICATED! (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)

4. OPA Responsible party pays restoration costs:NRDA Criminal Penalties Civil Penalties for Violating CWA – RESTORE Act FLOW OF FUNDS FROM DEEPWATER HORIZON OIL SPILL – Quick Recap

5. 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.

6. 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.

7. 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.)

8. 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. Guiding Document: COMPREHENSIVE RESTORATION PLAN Amount: $ 180M (Gulf-wide)

9. 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. Guiding Document: State Expenditure Plan (SEP) Amount: $ ?M for Florida

10. 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. Guiding Document: MULTI-YEAR IMPLEMENTATION PLAN Amount: $ 1.1M for Monroe

11. 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 4 th 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.

12. 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.” 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 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.

13. Local Pot Project Submissions

14. Interim Final Treasury Rule August 15, Comments due September 15, effective October 15IFR 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 dollarsDirect Component Guidance and ApplicationMulti-year Implementation Plan - Narrative and Project MatrixProject Grant Applications

15. 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 (45 days)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 applicationEach eligible activity requires a separate grant application

16. Treasury Rule Requirements for Projects Federal Grant Requirements OMB Uniform Guidance ProcurementAuditing Environmental Regulations NEPA, CZMA, ESA, Magnuson, MMPA, CWA State Environmental Permitting, Chapter 373 & 403, F.S. Assessment of “risk” DUNS Number Clear Project Schedule and Budget Clear Outcomes and Milestones Stringent Performance and Reporting Standards Treasury “Certifications” Reporting Auditing for State and Federal Requirements Binding Agreements Applicants will be required to meet all requirements in an Award Agreement Will include County’s Grant Agreement with Treasury Will be managed as Subaward or Contract

17. Cost Principles: the Uniform Guidance 2 CFR 200 Audits Allowable costs (tied to eligible activities) Disbursements/Payments Procurement v. Subaward Recordkeeping Reporting

18. Commenting on the Regs What We Anticipated and Got 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 What’s Left to Resolve? 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.

19. On the Horizon: Rules and Guidance Uniform Guidance Treasury has to adopt its version of Uniform Guidance Example pre- award costs Best Available Science Guidance for demonstrating BAS in applications May be by further rule or “Guidance” document Documentation for Projects Substantiating “eligible activities” Permitting documentation NEPA- further rule development Categorical Exemptions Environmental Assessment Environmental Impact Statements Previous analyses The “all bets are off” provision Waivers from Rules Further modifications to Rules

20. 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.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.

21. 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. HalliburtonHalliburton--$1.1 billion (court must approve to deal with class actions, unknown distribution to trust funds and/or RESTORE)

22. Next Steps for Committee (Now)Local Committee to score each submission individually (Now) (November, 2014 – NEED to SCHEDULE THIS MTG.)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.) (November, 2014).Final scores will be compiled; projects will be ranked according to score. (November, 2014). Recommended ranking list will be posted to website. (December 2014)Recommended ranking list will go to BOCC for review and project selection. (December 2014) (January/Feb 2014) -- Decision points for BOCC: who to draft, and whether or not to apply for planning assistance grant to cover costs?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? (February 2014)Draft MYIP will be brought to local committee for review and recommendations (February 2014) (March/April 2014)MYIP will go to BOCC, for approval (March/April 2014) MYIP to be posted for 45 daysMYIP to be posted for 45 days (April/May 2014)MYIP to Treasury (April/May 2014) (date?)MYIP accepted by Treasury (date?) (date?)Grant application and submission by each project in MYIP (date?) (What about BP monies in future?? MYIPs can be phased and incremental.)

23. Website All of this information and more can be found on the County’s RESTORE Act website: Monroe County http://www.monroecounty-fl.govhttp://www.monroecounty-fl.gov >Programs> RESTORE Google: RESTORE Act Monroe County

24. Questions? erin@deadylaw.com 954.593.5102 www.erindeadylaw.com erin@deadylaw.com 954.593.5102 www.erindeadylaw.com