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County opts out of cities’ legal challenge

By Staff | Oct 18, 2018

Lee County will not take part in a lawsuit challenging a Lake Okeechobee water flow decision filed by six of the county’s municipalities.

The Board of County Commissioners on Tuesday voted 4-1 to send a letter to the South Florida Water Management District, asking the district to increase the minimum flow of water releases in the dry season as the cities – including Cape Coral – have requested.

However, the county will not be a party to the litigation against the district, with one commissioner saying the municipalities involved in the suit could end up doing more harm than good if they win.

Cape Coral Mayor Joe Coviello, had stressed at Tuesday’s Commission meeting that mutual cooperation is key and that banding together has helped during other times of natural disaster.

“We just had a devastating hurricane in the Panhandle, and the county, Cape Coral and residents have pooled resources to help,” Coviello said. “We had a devastating effect from the water releases and we asked for a common-sense approach to alleviate part of the problem with minimum flows during dry season. All we wanted was cooperation, and it fell on deaf ears.”

It is not that county officials are happy with the way releases from Lake O have been managed; a majority just did not see litigation as the proper route.

Lee County Commissioner Larry Kiker said the situation that results in too little water in the dry season and too much in the wet is the “worst managed situation I’ve ever seen.”

“In 2001, the federal government said they needed to do something about it, and then forgot to fund it,” Kiker said. “It has been pushing a wheelbarrow uphill ever since.”

In the end, Kiker voted with the majority to send a letter instead of legal intervention.

Commissioner Cecil Pendergrass cast the dissenting vote in a 4-1 decision.

Pendergrass said he supports the mayors’ positions, but also the BOCC’s. He said he knows how their letters in the past have fallen on deaf ears.

“I support home rule and we were asked to support them in their efforts. I support their efforts and ruled against the letter because it didn’t include the language supporting the mayors,” Pendergrass said. “I don’t want to make a habit of suing other government entities, but we have sent numerous letters to water management and it’s gone unheard.”

Commissioner Brian Hamman said despite the cities in the suit believing they have been banging their collective heads against the wall, there is still time and room for discussion instead of lawsuits where the taxpayers will have to foot the bill for both sides.

“Why not ask the district to join us for a joint workshop to talk about dry-season flows?” Hamman said. “We don’t disagree with what the mayors are asking for, we disagree with the method.”

Hamman also pointed out that even if the mayors win the appeal, the judge does not have the authority to give them what they’re asking for, which is a minimum dry season flow of 700 cubic ft./sec (CFS), but only can invalidate the SFWMD decision made on Sept. 13, to only bump dry season flows from 300 to 400 CFS.

“If the new rules get invalidated, the district will revert to the old rule which provided for 300,” Hamman said. “They’ll end up with less water if they win.”

Hamman said SFWMD officials are expected to come to Lee County in February, which he hopes would be the time to hold the session and reach a consensus as a partner and not in a courtroom.

Coviello, though, believes the time to talk is over, since the SFWMD board doesn’t seem to be listening.

“How many letters are you going to send? They’ve sent letters. I think part of this has something to do with the district to take care of their 13 canals and they don’t want to ruffle anyone’s feathers,” Coviello said of the county decision. “We also think they may want to rescind our grant money if we have litigation. My priority is to make a simple change in the way water is released in the dry season.”

Coviello said if the cities win, the hope is for the SFWMD to revisit the minimum release levels, by which time a new board could be installed along with the new governor. Right now, he doesn’t believe the current board has the coastal communities’ best interests at heart.

“Their main priority is water control for agriculture. It was not based on coastal communities,” Coviello said. “It will be interesting to see how it shakes out.”

During Tuesday’s meeting, it was revealed that the appeal, set for Oct. 29 and 30, could be postponed until after the election.

The law firm of Henderson and Franklin, which is representing Sanibel, expressed a conflict of interest and so removed its attorney from the case.

Coviello said the city’s attorney is taking the lead, while Sanibel takes the time to replace its attorney