The Chiquita Lock regulates water flow from the South Spreader. FILE

Local non-profit organizations and residents have teamed up again and filed a petition for an administrative hearing challenging the Florida Department of Environmental Protection’s Notice of Intent to issue an permit to the city of Cape Coral for removal of the Chiquita Lock.

The Matlacha Civic Association, Inc., Sanibel-Captiva Conservation Foundation, Calusa Waterkeeper, along with residents Daniel Carney, James Collier, Keven Sparks and Kathleen Walsh, filed the petition on Wednesday challenging the notice of intent for an Environmental Resource Permit from FDEP to the city, contending the application “fails to meet any of the standards required under Florida Law.”

The petitioners also state that preliminary to any hearing, that FDEP “engaged in a fatal due process error in issuing the (Notice of Intent),” which was signed by FDEP Director of District Management for the South Florida District, Jennifer Carpenter.

The Matlacha Civic Association, with the support of local organizations and individuals, defeated the first effort by the city to remove the lock on the South Spreader Waterway in 2019-20.

President of the Matlacha Civic Association, Attorney Michael Hannon, said in the first proceeding, a Florida Administrative Law Judge concluded that removal of the lock would damage the mangroves and further impair the waters of the Matlacha Pass. He said the new effort to remove the Chiquita Lock is based on promises by the city of Cape Coral to start several new projects to improve the quality of water that flows into the South Spreader. They are once again, this time with more backing, challenging the city.

“The fact that two renowned organizations that protect our waters have joined us as petitioners in this case, reflects how seriously our residents view the importance of clean water,” Hannon said.

When reached for comment, city of Cape Coral officials stated they do not comment on pending litigation.

The petitioners argue that the city’s proposal will not improve water, and at the same time violate a Consent Order binding dating back to the ’70s.

During the decade, predecessors to the DEP stopped the digging of canals in the mangrove wetlands along the Matlalacha Pass Aquatic Preserve by developers of the Cape. From that came the largest fine ever levied for environmental crimes, managed wetlands were deeded to the state, and a water detention system for the canals designed to curb further damage.

Enforcement action was resolved by Consent Order No. 15 in 1977, to govern the operation of the canal system thereafter. The goal of Consent Order No. 15, which is still in effect today, is “to restrict destruction of the mangroves and to provide additional control and treatment of stormwater discharges” and “to be a freshwater system designed to retain and treat the stormwater runoff and then to provide uniform discharge of the stormwater into the adjacent mangrove.” The Consent Order requires the maintenance of both the Chiquita Boat Lock and the Ceitus Boat Lift Barrier on the south end of the North Spreader Waterway. Hannon said Cape Coral has refused to maintain both spreader waterways as required by the Consent Order.

Cape Coral was allowed to remove the Ceitus Boat Lift Barrier many years ago.

“As a result, Matlacha Pass is polluted and the mangroves along the North Spreader are dying,” Hannon said. “Evidence of the damage to the mangroves on the north presented at the 2019 hearing was dramatic.”

Petitioners state the city has only offered one reason for the removal quoted, and that’s to allow boaters to navigate the Spreader Waterway without having to wait for operation of the lock. They add there is no environmental purpose served by the removal on the lock, and will in-turn cause “significant environmental damage.”

The city’s proposed program put together by Brown and Caldwell includes two stormwater improvement projects; environmental monitoring for small tooth sawfish; enhancement to mangrove, upland, and subtidal habitats along the waterway, and removal of the Chiquita Boat Lock and the associated northern upland pad from the terminus of the waterway. The city states these actions “will result in environmental improvements and increase the sustainability of the Waterway system and the adjacent natural areas.”

Petitioners argue other than the removal of the lock, no Environmental Resource Permit is necessary to carry out the program, and state that the request is an “illegitimate vehicle to seek amendment of Consent Order No. 15 without proper notice of any proposed amendment to affected parties.”

Petitioners also state that in the Notice of Intent, FDEP acknowledges the potential adverse impact of the removal of the lock.

“The Department has determined that the proposed activity, because of its size, potential effect on the environment or the public, controversial nature, or location, is likely to have a heightened public concern or likelihood of request for administrative proceedings,” FDEP stated in the notice.

Petitioners state the removal of the lock will cause the same environmental hazards that first caused action back in the ’70s.

“The removal of the Lock will alter the natural flow of water and allow direct flow of polluted canal waters into protected natural resource areas utilized by Petitioners, thus directly affecting their use and enjoyment of the water and natural resources of the area including Matlacha Pass Aquatic Preserve, San Carlos Bay, and the waters of Sanibel, Captiva, and Pine Islands,” the petition states. “Petitioners allege that removal of the Chiquita Lock will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state, including manatees and the habitat of the smalltooth sawfish.”

Petitioners stated the most recent data on pollution of the Caloosahatchee Watershed is evidence that FDEP and its constituents are failing to protect local waters. Estimates of pollutant loading have increased dramatically from Cape Coral major outfalls during the past five years, as reported in the Cape Coral MS4 reports comparing 2014/2015 to 2019/2020. Total nitrogen, the parameter FDEP attributed to verified nutrient impairment in the Caloosahatchee estuary, San Carlos Bay, Pine Island Sound, and Matlacha Pass State Aquatic Preserve, increased from 251,148 pounds per year in the 2014/2015 to 927,703 pounds per year in 2019/2020, a 267 percent increase.

The recent 2022 Caloosahatchee River FDEP BMAP (Basin Management Action Plan) 5-Year review indicated that total nitrogen loading has significantly increased since the BMAP was adopted in 2012 and that nitrogen load reduction allocations to stakeholders will need to be increased by 1,938,241 pounds per year for total maximum daily load attainment. Cape Coral is one of the BMAP stakeholders required to reduce total nitrogen loading.

The review reports that Cape Coral has only one project for nutrient improvement in process and one project in the planning stage. Petitioners state the reported 5-year average of total nitrogen load is actually 5,177,800 pounds-per-year, which is an increase of 1,218,239 pounds-per-year over the predicted starting load. Petitioners believe current projects will not meet the 20-year milestone currently projected for the BMAP.

The petitioners state that FDEP’s Nikki Morgan reported at the Caloosahatchee River and Estuary and Everglades West Coast Basin Management Action Plans (BMAPs) Annual Meeting that FDOH does not know why measured loading of total nitrogen is higher than what was modeled.

“In other words, the modeling on which the BMAP system is predicated bears no relation to quantitative analysis,” the petitioners state. “To the extent the City of Cape Coral relies on its ‘compliance’ with the BMAP process, the argument carries no quantitative weight.”

Hannon said the city has “claims” they are doing a great job meeting their BMAP requirements, but that the BMAP is a decade old “and bears no relation to reality.”

Hannon said Cape Coral should use taxpayer dollars and grants to build high-speed locks at both Chiquita and Ceitus, then implement best practices to maintain those waterways.

The Chiquita Boat Lock is a water detention barrier across the South Spreader Waterway in Cape Coral. The purpose of the Chiquita Lock is to separate the canal waters of the southern end of the city from the navigable waters of the United States at the Caloosahatchee River. The Chiquita Lock and the South Spreader Waterway were constructed over 30 years ago by the early developers of Cape Coral to remedy a Clean Water Act enforcement action brought in 1977 by the predecessor of FDEP, the Florida Department of Environmental Regulation.

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