A hearing to determine whether the state should issue a permit allowing the city of Cape Coral to remove the Chiquita Lock concluded Wednesday afternoon.

The next steps will be post-hearing briefs of the parties filed in late January or early February, followed by a written decision by Administrative Law Judge Suzanne Van Wyk, which will be a recommended final order.

The parties may then file written exceptions to all, or parts of the recommended order. The final order, with exceptions, will then go to the Secretary of the Florida Department of Environmental Protection for review and final say.

The hearing will determine whether the FDEP can move forward with its announced intent to issue the permit to allow the removal of the lock based on a plan the city says will improve the quality of water that flows into the South Spreader canal.

“The Final Administrative Hearing pertaining to the Petitioner’s challenge of the City’s Environmental Resource Permit (“ERP“) for the removal of the Chiquita Boat Lock was concluded on December 20, 2023, and the Administrative Law Judge (“ALJ“) will be issuing her recommended Order to the Florida Department of Environmental Protection (“FDEP“),” the city said in a statement provided to The Breeze Thursday. “In consideration of the factual and expert testimonial evidence that was presented at the Final Administrative Hearing by the City and FDEP, the City is optimistic that this evidence has established a clear legal right and entitlement to the ERP and that the ALJ’s Recommended Order will support its issuance to the City.”

The challenge was filed by the Matlacha Civic Association and other parties who oppose the water retention device’s removal. The petitioners contend the application “fails to meet any of the standards required under Florida Law.”

“Your readers are getting a glimpse of what I would call the ‘Pollution Industry,'” said Michael Hannon, president of the Matlacha Civic Association and the attorney representing the challenging parties. “Florida’s rules and procedures are now Byzantine and arcane, formulated by lawyers and bureaucrats who are in-bred in the Pollution Industry. When ordinary citizens challenge any environmental permit, they are met by high-priced lawyers and experts and a hearing process which has its own rules.”

Calusa Waterkeeper Emeritus John Cassani, in testimony at the trial on the removal of the Chiquita Boat Lock, exposed major failings in the FDEP which allow the city of Cape Coral to “continue polluting the waters of Matlacha Pass and the Caloosahatchee River without adverse consequences,” he added.

At the trial, Cassani discussed the department’s major tool intended to clean up the waters of the state, the Basin Management Action Plan, referred to as BMAP.

Hannon said the BMAP for Cape Coral sets a target for removal of nitrogen from the surrounding waters at 38,965 lbs. of nitrogen per year. FDEP and the city claim to have overachieved this target, relying on “credits” assigned by the department to off-set the municipality’s yearly goal.

Cassani said the problem is that the goal was established in 2012, and that the FDEP has never updated the goal consistent with data collected on a timely basis in the waters around Cape Coral.

Hannon said that in so doing, the BMAP program only falls further behind while creating the illusion that restoration of water quality is on track.

“This process is truly unfortunate,” Hannon said. “Florida, the city of Cape Coral, and businesses in our state have plenty of money to develop prudently and protect the environment at the same time. Advancements in environmental protection are available to keep our waters clean. Under the processes created by the ‘Pollution Industry,’ there is no incentive to do so.”

According to public records, the city has paid attorneys handling the Chiquita Lock case $1,038,804 from Sept. 2020 to Sept. 2023. Additional fees in the six-figure amounts will be incurred from experts, and additional attorney costs from October to December.

“I estimate that Cape Coral will have paid its attorneys nearly $1.5 million before the case is over,” Hannon said. “The fees to experts will likely approach $500,000.”

As for what should be done, Hannon said the city needs to replace the lock.

“Spending $60 million to replace the Lock with a dual, high-speed Lock is well worth the money, and well within the reach of the City of Cape Coral, the self-professed fastest growing city in the nation. Its own environmental director testified that the City is now only 50% built out. What will the future look like, since the City admittedly uses its canals to flush its stormwater into Outstanding Florida Waters and the Caloosahatchee.”

The lock is a barrier across the South Spreader. Ordered by the state in 1977 as part of a Clean Water Act enforcement action, it was designed to separate the canal waters of the southern end of the city from natural waterways including the Caloosahatchee.

Located approximately 2.75 miles from the Sanibel Causeway Bridge, the lock provided boaters with a way through the barrier and so provided gulf access from Camelot Canal and Southwest Spreader Waterway into the Intracoastal Waterway via the river.

Citing damage and safety issues, the city has kept the lock open since Hurricane Ian.

The bid to removal the device, though, dates back years before the Sept. 28, 2022 storm.

The city lost a previous challenge to its bid to remove the structure in 2019 and then resubmitted its permit request with the addition of a number of mitigation projects.

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.”

The city contends the antiquated lock has long outlived its purpose and is no longer needed as a water quality mitigation device.