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DEP hearing rejection ‘no surprise’ to county

By Staff | Jun 30, 2011

Lee County is exploring legal options after its request for a formal administrative hearing to replace the Ceitus barrier in Cape Coral was dismissed by the Florida Department of Environmental Protection on Monday.
Lee County has the right to file an appeal of the dismissal within 30 days.
For now, the dismissal means that Cape Coral does not have to replace the Ceitus barrier in the North Spreader Canal and can continue to work toward its own set of projects to protect the natural balance of the estuary and Matlacha Pass.
Lee County filed its petition for hearing on May 31, as a means to force the city, and the DEP, to replace the barrier, after an Ecosystem Management Agreement process found stakeholders at odds on whether the barrier should be replaced.
Lee County Commissioner John Manning said the ruling came as little surprise.
“We didn’t think we’d get a favorable ruling,” Manning said.
The county pledged $1.5 million specifically for rebuilding the barrier, but Manning said those funds could be redirected to help get the city get on track with some of the projects identified through the EMA process.
Manning said he broached the idea with Councilman Pete Brandt, but Brandt never brought the suggestion to city council for its consideration.
Brandt, who represented Cape Coral during the EMA process, did not return calls for comment Wednesday.
Manning said the county attorney’s office is studying what other legal steps could be taken, if any, and the Board of County Commissioners would likely have that opinion when they return in August from their summer hiatus.
The dismissal order states, in part, that the DEP could not find any attempt on the city’s part to undermine its own application to replace the barrier, as stated in the county’s petition filed in late May.
Pine Island activist Phil Buchanan, who was one of many stakeholders that took part in the Ecosystem Management Agreement Process, said there’s still other legal action that could be taken to replace the barrier.
Buchanan said he’s filed three petitions of his own, but thinks they likely will be ignored or subject to the same interpretation as Lee County’s petition.
Maintaining that DEP is violation of not only the EMA process, but its own consent order, Buchanan said the matter could move to other courts on the state and federal level.
He didn’t want to lay out those strategies, he said, and was still deciding what to do next.
Like Manning, Buchanan wasn’t surprised.
“I figured they would do something like this,” he said. “But I am surprised by the extreme rationale that makes appeals impossible.”