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City permitting in sawfish habitat expires

By Staff | Oct 13, 2012

A smalltooth sawfish, seen in a Cape canal in February, 2011 Breeze file photo

For now, the city of Cape Coral will no longer to be able to review and issue permits for building on canals or docks.

In a move that surprised the city and those in the construction industry, the Army Corps of Engineers denied a permitting extension that would have allowed the city to continue to issue building permits in areas sensitive to the endangered smalltooth sawfish.

Application review allowed under SAJ-91, the five-year permit that expired Friday, will revert back to the Corps until “formal consultation can be concluded for smalltooth sawfish critical habitat,” the e-mail said.

Tunis McElwain, section chief of the agency’s regional office in Fort Myers, said the denial was made because there is no existing Biological Opinion, a requirement of the National Marine Fisheries Service.

The Army Corps of Engineers had issued the city its general permit in 2007, according to McElwain. The agency allows for certain types of permitting on the local level for efficiency, he said, as it helps eliminate duplication of effort.

In 2009, regulatory parameters changed. In addition to listing the fish as an endangered species, its habitat was also put on the critical habitat list. This, in turn, necessitated the biological permit, which was not previously required.

McElwain said he hopes to get the city its permitting power back soon.

“We view this as an efficiency, and we would like to get it back in place as quickly as possible, and we’re going to work with everyone to get it back in place,” McElwain said Friday in a telephone interview.

According to city officials, permit reversion to the Corps means the process could now take months instead of days.

City spokesperson Connie Barron said the city had anticipated getting the extension and was “thrown a curveball” when it didn’t get it.

“This has been going on for a long time. We’ve been working to resolve this issue,” Barron said.

Heather Mazurkiewicz, executive director of the Cape Coral Construction Industry Association, also said the news was an unpleasant surprise.

“Three months ago, the ACE stated it would extend the permit past Oct. 12 because we were working on a solution,” Mazurkiewicz said. “You could imagine the shock when I got the e-mail Wednesday saying ‘No.'”

Councilmember Marty McClain said obtaining the biological opinion is the key to get the extension done.

There still is work to be done there.

According to an official with the National Marine Fisheries Service, the agency has been working with the Corps and city since the first of the year.

The agency, though, still lacks all of the information required to issue the biological opinion, said Shelly Norton, a natural resource specialist, and sawfish and Johnson seagrass specialist, with Marine Fisheries Southeast Regional Office in St. Petersburg.

The Corps has grouped several similar requests and still is in the process of submitting information for the Cape habitat, she said.

“There are 12 permits being put together and analyzed,” Norton said. “It’s more efficient.”

Once all the required information is received, the agency then has 135 days to produce a biological opinion.

Local business leaders fear any delay.

Mazurkiewicz said this could be devastating to homebuilding at a time when the industry is finally picking up steam.

“When you have a city with 400 miles of canals, pre-platted into 80-by-120 lots, having the process halted on Monday and adding 120 days to six months will be devastating on the construction industry and have a ripple-down effect on the real estate market,” Mazurkiewicz said.

David Mulicka, owner of Honc Marine Contracting, told the CCCIA at Thursday’s meeting the decision will have ramifications beyond seawalls.

“Homeowners need to know this involves repair and replacement of seawalls, docks, lifts, dredging and repair,” Mulicka said. “If a seawall is in disrepair and it takes a year for the permit and the wall fails, the liability is with the homeowner.”

Another consequence is that a construction contract is good for only 45 days, said Chris Cheney of Southern Premiere Homes.

“If you have to have work done and you have to wait six months, your prices will go up,” Cheney said.

Mazurkiewicz told the CCCIA that the target review time for the Corps is 120 days, which is reached 70 percent of the time.

“We have a two-day target time we hit 100 percent of the time,” Mazurkiewicz said.

McClain said nobody is to blame at the city or state level.

“We became proactive about extending the permit,” McClain said. “I have to commend the state reps and their involvement in this. We have a barrier between us and the federal government. An apology from the ACE won’t carry much weight.”

The Corps did retain responsibility for some permitting over the last five years. McElwain did not know how many actually have been forwarded from the city over the last five years or how long those permits took to process.

The smalltooth sawfish is a species found in shallow tropical and subtropical waters in coastal parts of the Atlantic and Gulf of Mexico. Locally, it swims in the shallow canals.

It is vulnerable to overexploitation because of its propensity for entanglement in nets, its restricted habitat, and low rate of population growth, according to the national Marine Fisheries Service..

There are more than 840,000 acres of sawfish habitat in Southwest Florida according to the agency.