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Hearing on Chiquita Lock continued

By Staff | Apr 15, 2019

A legal challenge to state intent to issue a permit for the removal of the Chiquita Lock has been continued.

Although the hearing before an administrative law judge was expected to conclude Friday, time ran out for the presentation of expert witnesses by the city of Cape Coral and the Florida Department of Environmental Protection, which are defending removal against and a group of petitioners opposed.

FDEP issued a Notice of Intent last November to issue a permit for the removal of the Chiquita Lock, which was built during the city’s initial growth to protect the outer waters of Charlotte Harbor, but is now considered by city leaders to have outlived its usefulness.

The city and FDEP say the lock’s removal will improve boater safety and wait times while not significantly impacting water quality.

Petitioners contend that removal will 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.

The testimony on Friday, the second day of the planned two-day hearing, consisted primarily of expert testimony that laid out the cases for both sides.

Among those testifying for the petitioners – the Matlacha Civic Association and a handful of residents from Matlacha, St. James City and the Cape – was a witness who was responsible for the construction of the lock more than 40 years ago who said its removal could be catastrophic for the nearby ecosystems.

The petitioners, who have said throughout they have science on their side, brought Frank Muto, general manager of Safe Harbour Marinas to the stand first. He described the water quality in and around the lock, as well as the high speeds he said some of the boats go on either side of the lock, even in no-wake zones.

Throughout much of the testimony, city attorneys objected to the relevancy of what was being said.

When Muto was asked in cross-examination when he saw boats running at high speed, Muto said he could not remember.

Jon Igelhart, who works for the FDEP and who signed the letter of intent and amended notice, was grilled on whether the lock’s removal was contingent on the city completing certain projects, and whether the fixes on the lock had been attempted.

Representative for the petitioners, Michael Hannon, again met resistance from opposing counsel and Administrative Law Judge Francine M. Ffolkes, who appeared to be getting tired of what she saw as Hannon testifying to documents not in evidence.

David Woodhouse, of Woodhouse Geosciences, a hydrogeologist, was offered by Hannon as an expert.

Woodhouse said he would not consider the surface water in determining whether to remove the lock, but the groundwater, which comes into the rivers through fractured limestone as all rivers follow a fracture.

The groundwater goes under the lock and is part of a system of balanced water from the middle of the state to the gulf. Woodhouse said he wouldn’t remove the lock because the water would increase in velocity and flow into the Caloosahatchee.

When asked under cross examination whether he knew how much groundwater impacts water quality locally, Woodhouse said he didn’t know.

Kevin Erwin, ecosystem ecologist at Erwin Consulting, said the work on the South Spreader canal was not properly permitted by the original developers, GAC Properties.

Before Cape Coral, there were mangroves and shallow wetlands that allowed for the estuary to get the right balance and fresh and saltwater.

The spreader canal and the lock helped contribute to the continuation of the fresh water going into the estuary once the city started to develop.

Irwin said the removal of the Ceitus boatlift, another water control structure, in 2008 contributed to nitrogen overload, silting in the North Spreader and mangrove destruction by elevation changes. He said removing the Chiquita Lock would mean more of the same.

Under cross-examination, the validity of the photographic evidence was questioned as was Erwin’s testimony about the impact of the Ceitus Boat Lift removal and how the lowering of the water could impact mangroves and salinity levels in the spreader.

Kirk White, representing the FDEP, got Erwin to explain the difference between a lift and a lock and showed him a picture of mangroves dying at the boat lift before it was removed and of healthy mangroves today in that same area.

John Cassani, of Calusa Waterkeeper, an expert in aquatic ecology, said his group was opposed to the permit for the lock teardown. He said the lock enabled the South Spreader to operate as intended and detain stormwater for treatment.

He also was concerned about seagrass and the habitat of the smalltooth sawfish, an endangered species.

His data was questioned during cross-examination, including time-lapse photography he did of the area around the Ceitus Barrier. He conceded that hurricanes Charlie and Irma, as well as other variables, may have had something to do with altering their pictures.

The hearing was to conclude Friday.

However, the city and FDEP were unable to bring their expert witnesses to the stand.

The case will continue at a later date.