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City gears up for Chiquita Lock removal redux

By Staff | Mar 3, 2020

Cape Coral City Council will continue to pursue its quest to remove the Chiquita Lock, earmarking on Monday another $100,000 for legal fees and studies, if needed.

The elected board voted 6-1 to engage Manson Bolves Donaldson Varn for additional legal services and work to include the hiring of an outside firm for “supplemental work necessary for a new permit application for the removal of the Chiquita Lock.”

“This work will include the hiring of an outside firm to conduct ecological studies in support of the application, including the proposal of any mitigation determined to be necessary under environmental resource permitting rules, through the filing of a revised permit application. We expect our billing for these legal services to be approximately $50,000. In addition, we expect the billing for the ecological work to be approximately $50,000,” the engagement letter from Manson Bolves Donaldson Varn states.

Councilmember Rick Williams, who pulled the matter from council’s consent agenda so the board could discuss whether it wanted to continue to pursue the matter while the city awaits the outcome of its appeal of a successful legal challenge, was the lone “no” vote.

Williams said he didn’t agree with the way the old attorney had handed the case and said the city needed to look at a different tact and possibly a different attorney.

“We need to change the way we do this. This is not the answer,” Williams said.

The lock 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.

Saying the lock’s removal would improve boater safety and wait times while not significantly impacting water quality, the city, in October 2016, applied for a permit for its removal. The DEP an-nounced its intent to grant the permit to the city in November 2018 but a coalition that included the Matlacha Civic Association, two residents of Matlacha, one resident of St. James City and four residents of the city of Cape Coral, filed suit, saying that removal of the structure would degrade water quality.

Administrative Law Judge Francine M. Ffolkes last December ruled in favor of the challengers and the matter now is under appeal before the FDEP.

The placement of the item on Monday’s City Council consent agenda did not escape notice of those opposed to the removal of the lock, who turned out to advise against the apparent planned “do-over.”

Karl Deigert, president of the Matlacha Civic Association, made the claim that the permit was sought to make an illegal act (removal of the Chiquita Lock) legal.

“If I wanted to remove a barrier on my canal, they would lock me up and throw away the key, because it would be an illegal activity,” Deigert said. “Regulatory agencies don’t regulate or protect anything except against those who oppose the activity of the actor. They regulate the activist.”

Nancy Hindenach, who has a masters from Michigan State in aquatic ecology, said the damage has been done to the estuary already, and that the lock’s removal will make it worse.

“We’re neighbors and all we’re really asking is for them to be a good neighbor. It is no longer acceptable to flush your polluted water downstream,” Hindenach said. “The city should enact an ordinance where you have to retain your own stormwater and percolate on your own property and not run into the estuary.”

Michael Hannon, who, with the Matlacha Civic Association, sued the city and the FDEP, said he wasn’t surprised by council’s action Monday, saying the process is headed back to square one if the city doesn’t get its way from the state DEP.

“The lawyers and the experts are going to try to gin up another application in three or four months if they can find an expert,” Hannon said. “The last application they filed, it took more than two years to approve it.”

Hannon believes the city’s lawyers have told them they will lose the pending appeal and to be ready to start over.

Mayor Joe Coviello said the city is waiting until next week when they expect another ruling from the Florida Department of Environmental Protection regarding the adverse ruling by the judge in the case back in December.

In the meantime, the city is going to do additional studies and continue to pursue the removal of the lock.

“The idea is to be prepared in the event we don’t get that ruling in our favor,” Coviello said. “If it’s upheld, it’s back to the drawing board and we have our attorney in place and environmentalists. We’re trying to be proactive in continuing our quest to remove the lock.”