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Judge’s recommended order could lead to removal of Chiquita Lock

By CJ HADDAD - | Jun 10, 2024

After a years-long petition and countless hearings, the Chiquita Lock could possibly be removed.

An Administrative Law Judge on Monday issued a Recommended Order that will authorize the Florida Department of Environmental Protection to issue an Environmental Resource Permit to the city of Cape Coral for the removal of the lock.

This most recent development follows the conclusion of the Final Administrative Hearing pertaining to a group of local petitioners’ challenge surrounding the issuance of the ERP to the city, which concluded on Dec. 20, 2023, after a multi-week evidentiary hearing.

“After careful consideration of all relevant factors and submissions, the ALJ has now issued the attached Recommended Order in favor of issuing the City’s ERP for the removal of the Chiquita Boat Lock, concluding that the ERP meets the applicable standards set forth under Florida Law and the Florida Administrative Code,” city officials stated in a release. “The City acknowledges the favorable determination by the ALJ within the Recommended Order and is presently evaluating critical next steps surrounding this matter. As part of the evaluation process, the City is exploring all potential option(s) for the expeditious removal of the Chiquita Boat Lock.”

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.”

Michael Hannon, president of the Matlacha Civic Association and the attorney representing the challenging parties, told The Breeze he hopes the order does not come to fruition and is halted.

“The current opinion by the Administrative Law Judge is only a Recommended Order,” Hannon said. “The Secretary of the Department of Environmental Protection, Shawn Hamilton, has the final say for the Department.

“We are confident that either Mr. Hamilton or the Florida District Court of Appeal ultimately will deny the application. That is so because the Recommended Order ignores the obvious: Cape Coral’s pollution of the Matlacha Pass and the Caloosahatchee River has increased under Florida’s regulatory process.

“The Florida permitting process recently was ruled unconstitutional by a federal court in Washington, D.C. The Department’s own data confirms its process is broken, and the ALJ apparently believed she lacked the power to face these facts at her level of authority.”

Calusa Waterkeeper Emeritus John Cassani, in testimony at the trial on the removal of the Chiquita Boat Lock, attempted to expose 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.

City officials in their release, continued to state, “The Chiquita Boat Lock removal project is of significant importance to the City, and the City remains committed to ensuring that all necessary steps are taken to address any adverse environmental concerns or impacts while also meeting the needs of the community.”

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

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.”