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Chiquita Lock dispute hearing gets under way

By Staff | Apr 11, 2019

The fight over the removal of the Chiquita Lock moved to court Thursday with those opposed to the state granting the city of Cape Coral a needed permit coming out with the gloves off.

In the first of two days of expected testimony at the hearing, Administrative Law Judge Francine M. Ffolkes considered arguments made by representatives of the city and the Florida Department of Environmental Protection as well as from the petitioners who maintain the water control structure is needed to protect water quality.

The city, which has requested state permission to remove the lock, and FDEP, which has issued notice of its intent to issue the permit, testified that removal of the aging structure would not contribute to pollution.

Officials testified the lock was, in fact, doing little to prevent the free co-mingling of water it was originally intended to prevent.

Megan Mills for the Florida DEP, said that because the lock’s failure was causing an exchange of water, the removal of the lock would not cause water degradation.

Michael Hannon, attorney for the petitioners, which include the Matlacha Civic Association and a handful of residents from Matlacha, St. James City and the Cape, though, aggressively pursued examinations that were much longer than those of the city’s and the DEP’s counsel, arguing that the lock itself wasn’t a cause of pollution.

He also claimed that there was no lock failure, and that the permits were approved by suppositions and not fact.

City and FDEP testimony and witness examination bogged down frequently with objects and questions.

When Mills was shown photos of the area, Ffolkes was lost as to what the photos were meant to illustrate, and said Mills was being badgered by the petition side.

“I see this and you tell me if this is a breach. It’s a photo. I have no idea what or where it is,” Ffolkes said. “She doesn’t know where these photos are. You’re telling her there’s a breach.:

Many of Hannon’s questions faced objections from opposition counsel, with many of them sustained.

Still, Hannon tired of them.

“These constant objections are meant to slow down my testimony,” Hannon argued.

Hannon argued that the permit approved by FDEP did not take into consideration the mangroves or wetlands, and that this doesn’t meet the high standard of proof that is the burden of the city to provide.

In questioning Anthony Janicki, of Janicki Environmental, a consulting firm, Hannon questioned the numbers received from the models done on the lock, alleging there was no consideration of the geology in the area.

Once the petitioners began to present their side of the case, things went much faster.

Carl Deigert, president of the Matlacha Civic Association, was one of many petitioners who testified. He presented information about his organization and what they do.

Deigert, a boat captain by trade and a longtime Florida resident, also believed that the removal of the lock would result in the devastation of the area, and said that he had data to prove their point.

“I want to maintain the lifestyle I expected. I do water and eco tours and educate them on the ecosystem of the pass,” Deigert said. “There is a potential for adverse impacts in and out of the water.”

Melanie Hoff testified she lives just off Matlacha Pass in St. James City and worked for the United States DEP for 26 years.

“I came here to be on the water. My concern about water quality changed after last summer,” Hoff said. “I believe the water quality will be impacted by the removal of the lock.”

Robert Zarranz, a resident who lives near the lock, said the removal of the structure would create potential blue-green algae issues, not only in the water but on human health.

Yolanda Olsen, a retired Realtor who lives near the lock, said the city’s claim that removal would make the water safer was false, as no accidents had been reported there.

The city contended much of the questioning of the petitioners was not relevant as none were expert witnesses, but rather concerned residents.

At the heart of the challenge is the petitioners’ argument that the Cape Coral City Council never authorized the lock’s removal, nor did the city ever hold a quasi-judicial hearing where witnesses testified under oath.

The Chiquita Boat Lock provides Gulf access from Camelot Canal and the Southwest Spreader Waterway into the Intracoastal Waterway via the Caloosahatchee.

The city and the Florida DEP say the lock’s removal will improve boater safety and wait times while not significantly impacting water quality. The lock was opened in 1984 and the city says it is an obsolete structure in constant need of maintenance.

The petitioners contend that the lock’s removal would result in a degradation of water quality, a reduction in property values, danger to endangered species such as the manatee, lower water levels and silting in the canals that would require costly dredging, vessel navigation issues, blue-green algae invasion, seawall failure and quality of life.

Testimony was scheduled to continue Friday at 8:30 a.m. at the Lee County office building at 1039 Southeast 9th Ave., Cape Coral, Hearing Room 391, Third Floor.

Ffolkes will continue to hear evidence presented by each side – that the city is entitled to the permit the FDEP says it will issue as well as arguments opposed to be presented by a coalition that includes the Matlacha Civic Association, two residents of Matlacha, one resident of St. James City and four residents of the city of Cape Coral.

After hearing transcripts are prepared, each side will be allowed to submit its recommendations for Ffolkes to consider before she issues her advisory recommendation to FDEP Secretary Noah Valenstein.

Valenstein then will render a decision on the permit.

“That process could take anywhere from 45 days to two months,” Hannon, said in an earlier interview.

The District Courts of Appeal would be the next step should either side decide to contest Valenstein’s ultimate decision regarding the FDEP permit.