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City, ACE reach permit agreement on sawfish

By Staff | Jan 9, 2013

The city and the Army Corp of Engineers are a step closer to extending permitting for construction on canals or docks in areas sensitive to the endangered smalltooth sawfish.

However, builders’ optimism has been more cautious, not knowing what the new conditions will entail and what it will mean in developing a timeline to completion.

But while there will be a longer delay in the permitting process than before, it shouldn’t be anywhere near the six months or longer contractors faced without the agreement, which would have ground home construction and the building of seawalls to a virtual halt.

“It’s virtually the same thing. Permits will go through quickly. There are some things we never liked, but they are what they are,” said Mo Beneke, executive director of the Cape Coral Construction Industry Association. “We are a resilient organization and at least we know where we’re going.”

The ACE in October denied an extension of a blanket permit to allow the city to continue to issue building permits in areas sensitive to the fish.

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

That opinion came down the line this week, which essentially gave the green light to resume permitting.

“There are some conditions we’re going to have to work out with the city, but we’re working with everyone involved,” McElwain said. “We have a working agreement with the city, and we’ll have to revise that, and some additional reporting requirements the fishery is requesting.”

David Mulicka of HONC Marine Construction said the opinion is but a small step in the process.

“All that’s happened is that the NMFS has issued a biological opinion, which is just a scientific study that allows the ACE to review and consider issuing a new permit,” Mulicka said.

Among the biggest changes is the reporting requirement, McElwain said, in which the city will send the NMFS an e-mail, and if the city doesn’t hear back from them in 10 days, the permit can move forward, provided it complies with other terms and conditions.

“If there’s a problem, the fishery will let us know,” McElwain said. “Otherwise, time will simply expire and the permit can go through for individual projects like docks or seawalls.”

Mulicka said that he doesn’t know the nuances of what the restrictions may or may not be, or if they will be too onerous, as to make building on canals prohibitive.

“My hope is that there will be some middle ground on some of the restrictions they’ve considered issuing,” Mulicka said. “I don’t want to speculate on what might be restricted, but I’m certain it will be more difficult than before.”

Mulicka did say he heard rumors of no-build zones for certain times of the year, and that if property has eroded over the original platted edge, the ACE wants the seawall built over the existing median sea line.

This could condemn the property or violate setback rules, and prevent the building of a house because the setbacks don’t match anymore.

McElwain said there were some areas the NMFS identified as having concerns for sound impacts, but only for projects driving piles in certain areas outside what’s covered by the blanket permit.

McElwain said there would be a longer turnaround time with the 10-day confirmation period. But it beats the alternative.

“If we didn’t have this consultation in place, we’d have to consult on every project,” McElwain said, which would have taken six months to a year on some projects.

Still, Mulicka said you never know when you’ll hear from the NMFS or what their problems are, or how long it will take to address them.

“The city used to make those decisions on behalf of the ACE. Who’s to say what they pick and choose. It takes the predictability out of the market,” Mulicka said. “You can’t make a decision if you don’t know what the information is.”

The deal also is contingent on getting permission from the state on water quality certification and coastal zone consistency, which the ACE plans to do this week, McElwain said. That would take about 60 days.

If all goes according to plan, SAJ-91, the blanket permit, will be put in place by the end of March, McElwain said.

“It is a step in the right direction and the industry and the city are working to make sure we get the most fair and balanced permit outcome we can,” Mulicka said.

“I can’t see where they would find anything to nitpick on and won’t pass it through,” Beneke said. “We’re looking for that common truth.”

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.