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Lock removal fails legal challenge

Administrative Law Judge: City did not prove it has met permit regs

December 12, 2019
Pine Island Eagle

An administrative judge has found that the Matlacha Civic Association met its ultimate burden of persuasion to prove that the removal of the Chiquita Lock by the city of Cape Coral "does not comply with all applicable permitting criteria."

Judge Francine M. Ffolkes also noted that, "The City failed to demonstrate its compliance with all applicable permitting criteria and its entitlement to the Permit."

The ruling will now go to the Secretary of the Department of Environmental Protection, Noah Valenstein, for his ruling.

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"We are very pleased with the order and the assistance of ecologist Kevin Erwin provided to us in this proceeding," said Michael Hannon, a representative for the petitioners. "We're looking forward to Cape Coral restoring the Ceitus Barrier."

Ffolkes recommended that "The Department of Environmental Protection enter a final order denying (the permit) to the City of Cape Coral for removal of the Chiquita Boat Lock."

"This is truly a grassroots endeavor and everyone who participated did so as a matter of personal responsibility," Hannon said. "Each of us wants to do the most we can for the environment."

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In October of 2016, the city of Cape Coral submitted an application for the permit to remove the Chiquita Lock. The DEP announced its intent to issue the permit to the city in November of 2018.

Petitioners, which included the Matlacha Civic Association and other residents, filed a joint petition for an administrative hearing on the matter a month after DEP announced their intent to issue the permit.

The city has stated that the primary purpose of the lock's removal is to make the waterway easier for boat navigation with a minimal impact on water quality.

Petitioners argued during testimony that lock removal would result in a disintegration of water quality, a reduction in property values, pose a danger to species such as the manatee, lower water levels and silting in canals that could require dredging, boat navigation issues, blue-green algae forming, seawall failure and quality of life.

The ruling states that, "Petitioners proved by a preponderance of the competent and substantial evidence that the Department and the City were not aligned regarding how the City's application met applicable water quality standards."

It continued that the petitioners proved that the city relied on future projects to provide reasonable assurance that the removal of the lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and Matlacha Pass Aquatic Preserve.

Ffolkes stated that such reliance on future projects does not satisfy the required upfront demonstration that there is a likelihood of compliance with standards.

Ffolkes also notes that the waterbody in which the project would occur directly connects to Class III waters that are restricted for shellfish harvesting -- the Caloosahatchee River and San Carlos Bay.

"This omission, by itself, is a mandatory basis for denial of the permit," Ffolkes wrote.

In terms of water quantity, rules state that the city needed to provide reasonable assurance that the proposed project would not cause adverse water quantity impacts to receiving waters and adjacent lands and will not cause adverse impacts to existing surface water storage and conveyance capabilities.

Ffolkes said evidence demonstrated that the volume of flow through Breach 20, an adjacent tidal creek connected to Matlacha Pass, would drastically decrease.

Erwin also provided evidence that any potential adverse impacts to the tidal creek system would have negative effects on healthy mangroves in the area.

When it comes to secondary impacts to water resources from the project, the recommendation stated that "the City failed to provide reasonable assurance that the secondary impact from construction, alteration, and intended or reasonably expected uses of the Project, will not cause or contribute to violations of water quality standards, or adverse impacts to the functions of wetlands or other surface waters as described "

Ffolkes found that Erwin's testimony regarding adverse secondary impacts to the ecological health on the mangrove ecosystem adjacent to the South Spreader Waterway was in "stark contrast" to the city's assertion that lock removal was not expected to result in impact to mangrove wetlands.

Erwin's testimony also revealed that lock removal would adversely affect the smalltooth sawfish and its nursery habitat and increase the risk of manatee-motorboat collisions.

"The preponderance of the evidence supports a finding that the City's claims of navigational public safety concerns have less to do with navigational hazards, and more to do with inexperienced and impatient boaters," wrote Ffolkes. "Based on the above findings and conclusions, the Project will adversely affect the public interest factors associated with wetlands, fish and wildlife, and their habitat."

The petitioners can recommend changes to the order, but Hannon said he feels it is sufficient as is.

"I think it's bulletproof," he said. "I expect Gov. DeSantis' administration to keep the lock."

The city could not be immediately reached for comment. The municipality does not typically comment on ongoing litigation.

-Connect with this reporter on Twitter: @haddad_cj

 
 

 

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