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Guest Comment: FDEP and Cape Coral change course in Chiquita Lock litigation

March 6, 2019
By MIKE HANNON , Pine Island Eagle

Last Thursday the Florida Department of Environmental Protection [FDEP] and the city of Cape Coral dramatically changed direction in the litigation over the removal of the Chiquita Boat Lock. FDEP lawyers in the lawsuit filed an amendment to the permit to remove the Chiquita Lock, signed by Jon Iglehart of the FDEP South District, which admits that Cape Coral has been allowing pollutants to discharge from the South Spreader canal system through and around the Chiquita Lock into the Matlacha Estuary and Caloosahatchee River since at least 1991. These pollutants include nitrogen and phosphorous which trigger red tide and blue-green algae.

With this admission, Mr. Iglehart says in the amendment, "As the Lock itself is not a source of pollution or prohibited discharge its removal is not expected to contribute to any long-term water quality violations. . . . [R]emoving the Lock will not affect what has been the status quo for the last 35 years."

I am a Matlacha resident and one of the challengers to the removal. I am also acting as the other challengers' representative in the lawsuit. This change in direction is no doubt generated by the lawyers for DEP, and is not the product of true science or the popular will.

In the first permit issued last November, DEP and the City proclaimed that they have been doing such a fabulous job in protecting our waters that removal of the Chiquita Lock won't matter. Now they say that because the pollution is so bad, removal of the Lock still won't matter. These new admissions are what clean water advocates have known all along. As a result, the Matlacha Civic Association has retained attorneys to file a federal clean water act lawsuit against Cape Coral for the pollution of our estuary, which Cape Cora now has admitted.

Karl R. Deigert, president of the Matlacha Civic Association, which is also a challenger, responded to the change of direction.

"So now DEP and Cape Coral admit they have not been taking care of the Lock and the Spreader Waterway. Why should they benefit from their own incompetence and neglect? Instead, they should repair the breaches and install a high speed boat lock that works."

In a filing with the Florida Department of Administrative Hearings, where the lawsuit is pending, we have pointed out that, "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 the 1970s." We have also argued that a DEP Consent Order and a Warranty Deed from 1977 both require DEP and Cape Coral to keep the Lock and Spreader Waterway in good condition. What is their response? Cape Coral in the litigation now denies that the Consent Order remains in effect.

Ecologist Kevin Erwin, who first blew the whistle on the developers of Cape Coral in 1977, is expected to testify for the challengers in the upcoming hearings on April 11-12 in Fort Myers. Mr. Erwin will testify that removal of the Chiquita Lock will cause major damage to the mangroves along the Spreader Canal, just as removal of the Ceitus Boat Lift Barrier from the North Spreader did in 2008. He is right. Decades of accumulated legacy pollution and silt will immediately flush into the river and estuaries as it did from the North Spreader canal after the illegal Ceitus Barrier removal of 2008. That action and the constant stream of pollutants from the North Spreader canal have devastated Matlacha Pass. DEP now admits that the Matlacha Estuary is an impaired waterway under the Clean Water Act. Either the Cape Coral Council members don't care or haven't learned from history.

Officials from Cape Harbor Marina are also expected to testify that removal of the Lock will cause a dramatic drop in the water level of the marina and upstream waterway. Larger boats will no longer be able to moor at the marina, and boat passage will be severely restricted at low tide.

Yolanda Olsen, one of the challengers and a resident of Cape Coral, says that citizens need to wake up.

"You need to realize that removal of the lock will have a devastating effect on property values along the South Spreader canal. No more million dollar boats and no more pristine mangroves along the canal."

Once again, the lawyers are running the show. Only two of the current eight Cape Coral City Council members voted for removal of the lock. The other six have silently refused to take a public position on whether the lock should be removed, except to authorize the expenditure of taxpayer money for a high profile law firm from Tampa to represent the City. This law firm will likely bill over $250,000 for their work.

We long ago offered to work this out. But you can bet your last dollar that the Cape Coral City Council won't talk.

"We don't comment on litigation."

Mike Hannon is a resident of Matlacha.



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