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City loses appeal; FDEP upholds ruling that finds that the Chiquita Lock cannot be removed

By Staff | Mar 13, 2020

The Florida Department of Environmental Protection has upheld the decision made by an administrative law judge in December to deny a permit by the city of Cape Coral to remove the Chiquita Lock.

The decision also affirms the ruling that the city does not have to reimburse the petitioners in the case court costs and legal fees.

Judge Francine Ffolkes recommended in December that “the petitioners met their ultimate burden of persuasion to prove that the project does not comply with all applicable permitting criteria, particularly compliance with state surface water quality standards.”

Ffolkes did not, however, believe the city or the DEP participated in this proceeding for an improper purpose and denied its request for reimbursement.

Cape Coral mayor Joe Coviello said despite the setback, he plans to continue the city’s quest to get the lock removed.

“We’ve been working on this for some time and we will continue to move forward,” Coviello said. “We have 27 other canals that have no lock, so there’s no need to keep it there.”

The city has prepared in the event the decision went against them.

On March 2, the Cape Coral City Council voted to earmark another $100,000 for more legal fees and studies on the lock’s removal.

The board will 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.”

“We anticipated the final order and decided to put the cart before the horse to approve an attorney,” Coviello said. The maintenance costs on the lock is substantial and hopefully we can get to the end game which is the removal of the lock.”

The lock, located in the South Spreader near Cape Harbour, 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 announced 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.

Ffolkes ultimately ruled in favor of the challengers and the city then appealed back to the FDEP, which has now upheld Fflokes’ ruling against the city.

“I’m gratified by the personal sacrifice made by those who participated in this. We’re not a big organization, we’re just a number of people who felt a personal responsibility to do something about or local water,” said Michael Hannon, who represented the petitioner coalition in the case. “They’re all owed a debt and hopefully their example will be followed by others.”

Hannon had an opinion on the city’s plan to continue its pursuit of the lock’s removal as well.

“The decision of the secretary will be difficult to overcome because the decision impacts the outstanding water in the Matlacha Pass Estuary,” he said. “It’s the 50th anniversary of Cape Coral. It would be far better advised to conduct a roundtable of experts to restore the canals to their original purpose.”