Cities appeal Lake O water discharges decision
The city of Sanibel and two other Lee County municipalities are challenging a recent decision by the water management district on changes to the Caloosahatchee’s minimum flows and levels criteria.
The city, Fort Myers Beach and Cape Coral filed a joint petition on Sept. 24 with the Florida Division of Administrative Hearings. The municipalities question the validity of the South Florida Water Management District’s “proposed amendments” to the rule on the minimum flows and levels – MLFs.
“I am of the mind that government should not be in the business of picking winners and losers. This has gone on for too long in South Florida,” Mayor Kevin Ruane said in a statement. “When considering the impacts of regulations, perhaps agencies should consider all economic impacts associated with their decisions. Water management policies must be overhauled to address the inequities to the Caloosahatchee, the economic impacts to our local communities, and recognize the benefit of tourism to our state’s economy.”
On Sept. 13, the district’s board voted in favor of changes to Rule 40E-8.011(2) of the Florida Administrative Code, or the Caloosahatchee MLF Rule. The approved amendments raised the MLF criteria from a 30-day flow of 300 cubic feet per second (cfs) to 400 cfs at the Franklin Lock.
MLFs prevent “significant harm to the water resources or to the ecology of an area,” according to the petition. The current rule governs freshwater flows from Lake Okeechobee to the Caloosahatchee River Estuary, among other things, and sets maximum salinity levels, measured in parts per thousand or ppt.
The petition points out that significant changes to the rule are:
n Increasing the minimum mean monthly flows from 300 cfs to 400 cfs
n Eliminating as a MFL exceedance any daily salinity exceedance of 20 ppt
n Eliminating a unit of measurement for salinity
n Requiring that salinity measurements occur at mean low tide
Ruane and the mayors of Fort Myers Beach and the Cape, as well as Sanibel City Council members, local business leaders and representatives from organizations such as the Sanibel-Captiva Conservation Foundation and Conservancy of Southwest Florida, relayed opposition to the changes at the meeting.
Those who spoke before the district’s board cited recent real-time data and sampling that indicates a higher cfs of at least 720 is needed during the dry season to maintain the Caloosahatchee’s salinity levels and protect its ecology. They voiced concern with the recommended changes from district staff being based on modeling, rather than real-life data, and studies completed between 2011 and 2016.
In the end, the board still voted unanimously in support of the proposed amendments.
A petition alleging a rule’s invalidity must be filed within 10 days of the final public hearing.
In the joint petition, the three municipalities lay out the background for their case. It states that Lake Okeechobee and the Caloosahatchee watershed serve as the headwaters of an estuary and marine ecosystem in Southwest Florida. It adds that the watershed has been significantly altered by various engineering efforts and that high salinity levels are harmful to aquatic vegetation, like tape grass.
Tape grass serves as a primary habitat and direct food source for many species, as well as stabilizes sediment and shorelines, removes nutrients and acts as a natural filter for waters near and downstream.
“As a result certain amounts of fresh water must be released from Lake Okeechobee during the dry season in order to maintain appropriate salinity levels in the CRE (Caloosahatchee River Estuary), which in turn will support the tape grass habitats and other aquatic life,” the petition states.
The petition covers MLFs and their role, noting that the current Caloosahatchee MLF Rule provides that MLFs are to be “based on existing best available information, and will be periodically reviewed, at least every five years, based on new information and changing water resource conditions.” It adds that the same MFL was adopted in 2001 and “did not undergo a meaningful review until this past year.”
The petition calls attention to the impact of toxic blue-green algae and persistent red tide and the importance of water quality to the petitioners and all of Southwest Florida. It points out the negative impact to human health, devastation of marine life, and loss of quality of life and tourist revenue.
“The health of the CRE and coastal waters is directly tied to water management policies administered by the district and the U.S. Army Corps of Engineers,” the petition states. “The Caloosahatchee River routinely received too much water during the wet season (decisions made by the Corps of Engineers) and too little during the dry season (decisions made by the district). Each high or low-flow event that occurs impact important ecosystem services, including habitat for fish and wildlife, water quality benefit and recreational opportunities.”
“The water issues currently facing (the) petitioners and Southwest Florida are obviously complicated and will require a number of different solutions,” it continues. “However, making certain that this proposed rule is correctly drafted and followed is one piece of the solution that is solely needed by Sanibel and by all of Southwest Florida.”
It now stands with the district to prove that the changes to the Caloosahatchee MLF Rule are not “an invalid exercise of delegated legislative authority,” including that they are not “vague” nor fail to establish adequate standards for agency decisions and they are not arbitrary nor capricious in that they are “not supported by logic or the necessary facts” nor were “adopted without thought or reason.”
The petition claims that they are “an invalid exercise” of authority for those exact two reasons.
It explains that the rule’s language fails to specify a unit of measurement for salinity.
“There is no doubt this significant omission makes the proposed rule fail on its face, as the ambiguity created makes it impossible to determine with any certainty the standard of measure to be used when measuring salinity,” the petition states.
As far as being arbitrary and capricious, the petition points out that the district was presented with “competent, substantial and unrebutted evidence at and before the final hearing that MFLs measured at 650 cubic feet per second were inadequate during the 2018 dry season (from January to May), and in previous years, to maintain salinity levels at or below the current” 10 ppt requirement over 30 days.
“It is illogical and irrational to believe a MFL of 400 cfs (250 cfs below the 650 cfs level) would be adequate to ensure the salinity levels average at or below 10 ppt,” the petition states.
It adds that the current rule protects against short-term spikes in salinity levels – which can result in significant harm – by identifying as a MFL exceedance any daily salinity in excess of 20 ppt, which is eliminated in the changes. The petition continues that taking measurements only at low tide will result in falsely low readings over any 30-day mean period because salinity readings fluctuate with the tide.
“Thus, determining a true and accurate mean salinity for a 30-day period would require taking daily measurements not at the daily low point but rather at its midpoint,” it states, referring to between tides.
Toward the end, the petition wraps up with the following:
“While (the) petitioners recognize the proposed rule makes a minor improvement in the MFLs from the current rule (from 300 cfs to 400 cfs), the proposed 400 cfs is still grossly deficient to maintain a healthy CRE during the dry months and prevent further significant harm to what remains of the tape grass habitats and other ecology in the CRE. Notably, over half (in excess of 1,000 acres) of the tape grass habitat that existed 20 years ago have been killed off – an example of serious harm, above and beyond significant harm. Poor management by the district over the 17-year period under the current rule from 2001 to present has prevented recovery. Such unprecedented losses and the lack of conditions conducive to recovery are directly attributed to the district’s failure to provide minimum flow levels during dry season. Thus, while the district maintains 400 cfs is sufficient to prevent further harm, (the) petitioners dispute the same and maintain the actual necessary and appropriate figure is above 650 cfs.”
The three municipalities are asking the Florida Division of Administrative Hearings to enter a final order declaring that the district’s approved amendments to the rule are an invalid exercise of authority. The petitioners have also requested that the division award them attorney’s fees as part of the order.
On Sept. 27, water district officials declined to respond to the filed petition.
“The South Florida Water Management District does not comment on active litigation,” Randy Smith, senior media relations for the district, responded in an email.
The day of the filing, the Sanibel City Council held a workshop to discuss the situation.
Ruane and City Attorney John Agnew explained that they had hoped Fort Myers, Bonita Springs and Estero would also be able to hold special meetings in time to approve adding their municipalities to the petition. But, only Fort Myers Beach and Cape Coral were able to do so to meet the 10-day deadline.
“The desire by all five is certainly to be here with us,” Ruane said.
He noted that a joint petition sets the right tone in moving forward on the matter.
“It sets a joint tone that we’re all in this together,” Ruane said.
The council debated how long it would take the others to get onboard, specifically the Lee County Board of County Commissioners since it is the governing body and representative for unincorporated Captiva. Later in the meeting, Ruane reported that he had heard back from Commissioner Larry Kiker, who voiced support for the petition and agreed to bring it before the board at its meeting on Oct. 2.
On Sept. 27, City Manager Judie Zimomra provided an update on the other municipalities.
“Next week, Mayor (Kevin) Ruane is scheduled to appear at the city council meetings of Fort Myers, Bonita Springs and Estero to discuss each of these cities also joining the petition,” she said.
With the petition now filed, the next in the process is for a judge to be appointed, according to Agnew. After that is completed, an evidentiary hearing on the matter will be scheduled within 30 days.
Cities appeal Lake O water discharges decision
Three Lee County municipalities are challenging a recent decision by the water management district on changes to the Caloosahatchee’s minimum flows and levels criteria.
The cities of Sanibel, Fort Myers Beach and Cape Coral filed a joint petition on Sept. 24 with the Florida Division of Administrative Hearings. The municipalities question the validity of the South Florida Water Management District’s “proposed amendments” to the rule on the minimum flows and levels – MLFs.
“I am of the mind that government should not be in the business of picking winners and losers. This has gone on for too long in South Florida,” Sanibel Mayor Kevin Ruane said in a statement. “When considering the impacts of regulations, perhaps agencies should consider all economic impacts associated with their decisions. Water management policies must be overhauled to address the inequities to the Caloosahatchee, the economic impacts to our local communities, and recognize the benefit of tourism to our state’s economy.”
On Sept. 13, the district’s board voted in favor of changes to Rule 40E-8.011(2) of the Florida Administrative Code, or the Caloosahatchee MLF Rule. The approved amendments raised the MLF criteria from a 30-day flow of 300 cubic feet per second (cfs) to 400 cfs at the Franklin Lock.
MLFs prevent “significant harm to the water resources or to the ecology of an area,” according to the petition. The current rule governs freshwater flows from Lake Okeechobee to the Caloosahatchee River Estuary, among other things, and sets maximum salinity levels, measured in parts per thousand or ppt.
The petition points out that significant changes to the rule are:
* Increasing the minimum mean monthly flows from 300 cfs to 400 cfs
* Eliminating as a MFL exceedance any daily salinity exceedance of 20 ppt
* Eliminating a unit of measurement for salinity
* Requiring that salinity measurements occur at mean low tide
Ruane and the mayors of Fort Myers Beach and the Cape, as well as Sanibel City Council members, local business leaders and representatives from organizations such as the Sanibel-Captiva Conservation Foundation and Conservancy of Southwest Florida, relayed opposition to the changes at the meeting.
Those who spoke before the district’s board cited recent real-time data and sampling that indicates a higher cfs of at least 720 is needed during the dry season to maintain the Caloosahatchee’s salinity levels and protect its ecology. They voiced concern with the recommended changes from district staff being based on modeling, rather than real-life data, and studies completed between 2011 and 2016.
In the end, the board still voted unanimously in support of the proposed amendments.
A petition alleging a rule’s invalidity must be filed within 10 days of the final public hearing.
In the joint petition, the three municipalities lay out the background for their case. It states that Lake Okeechobee and the Caloosahatchee watershed serve as the headwaters of an estuary and marine ecosystem in Southwest Florida. It adds that the watershed has been significantly altered by various engineering efforts and that high salinity levels are harmful to aquatic vegetation, like tape grass.
Tape grass serves as a primary habitat and direct food source for many species, as well as stabilizes sediment and shorelines, removes nutrients and acts as a natural filter for waters near and downstream.
“As a result certain amounts of fresh water must be released from Lake Okeechobee during the dry season in order to maintain appropriate salinity levels in the CRE (Caloosahatchee River Estuary), which in turn will support the tape grass habitats and other aquatic life,” the petition states.
The petition covers MLFs and their role, noting that the current Caloosahatchee MLF Rule provides that MLFs are to be “based on existing best available information, and will be periodically reviewed, at least every five years, based on new information and changing water resource conditions.” It adds that the same MFL was adopted in 2001 and “did not undergo a meaningful review until this past year.”
The petition calls attention to the impact of toxic blue-green algae and persistent red tide and the importance of water quality to the petitioners and all of Southwest Florida. It points out the negative impact to human health, devastation of marine life, and loss of quality of life and tourist revenue.
“The health of the CRE and coastal waters is directly tied to water management policies administered by the district and the U.S. Army Corps of Engineers,” the petition states. “The Caloosahatchee River routinely received too much water during the wet season (decisions made by the Corps of Engineers) and too little during the dry season (decisions made by the district). Each high or low-flow event that occurs impact important ecosystem services, including habitat for fish and wildlife, water quality benefit and recreational opportunities.”
“The water issues currently facing (the) petitioners and Southwest Florida are obviously complicated and will require a number of different solutions,” it continues. “However, making certain that this proposed rule is correctly drafted and followed is one piece of the solution that is solely needed by Sanibel and by all of Southwest Florida.”
It now stands with the district to prove that the changes to the Caloosahatchee MLF Rule are not “an invalid exercise of delegated legislative authority,” including that they are not “vague” nor fail to establish adequate standards for agency decisions and they are not arbitrary nor capricious in that they are “not supported by logic or the necessary facts” nor were “adopted without thought or reason.”
The petition claims that they are “an invalid exercise” of authority for those exact two reasons.
It explains that the rule’s language fails to specify a unit of measurement for salinity.
“There is no doubt this significant omission makes the proposed rule fail on its face, as the ambiguity created makes it impossible to determine with any certainty the standard of measure to be used when measuring salinity,” the petition states.
As far as being arbitrary and capricious, the petition points out that the district was presented with “competent, substantial and unrebutted evidence at and before the final hearing that MFLs measured at 650 cubic feet per second were inadequate during the 2018 dry season (from January to May), and in previous years, to maintain salinity levels at or below the current” 10 ppt requirement over 30 days.
“It is illogical and irrational to believe a MFL of 400 cfs (250 cfs below the 650 cfs level) would be adequate to ensure the salinity levels average at or below 10 ppt,” the petition states.
It adds that the current rule protects against short-term spikes in salinity levels – which can result in significant harm – by identifying as a MFL exceedance any daily salinity in excess of 20 ppt, which is eliminated in the changes. The petition continues that taking measurements only at low tide will result in falsely low readings over any 30-day mean period because salinity readings fluctuate with the tide.
“Thus, determining a true and accurate mean salinity for a 30-day period would require taking daily measurements not at the daily low point but rather at its midpoint,” it states, referring to between tides.
Toward the end, the petition wraps up with the following:
“While (the) petitioners recognize the proposed rule makes a minor improvement in the MFLs from the current rule (from 300 cfs to 400 cfs), the proposed 400 cfs is still grossly deficient to maintain a healthy CRE during the dry months and prevent further significant harm to what remains of the tape grass habitats and other ecology in the CRE. Notably, over half (in excess of 1,000 acres) of the tape grass habitat that existed 20 years ago have been killed off – an example of serious harm, above and beyond significant harm. Poor management by the district over the 17-year period under the current rule from 2001 to present has prevented recovery. Such unprecedented losses and the lack of conditions conducive to recovery are directly attributed to the district’s failure to provide minimum flow levels during dry season. Thus, while the district maintains 400 cfs is sufficient to prevent further harm, (the) petitioners dispute the same and maintain the actual necessary and appropriate figure is above 650 cfs.”
The three municipalities are asking the Florida Division of Administrative Hearings to enter a final order declaring that the district’s approved amendments to the rule are an invalid exercise of authority. The petitioners have also requested that the division award them attorney’s fees as part of the order.
On Sept. 27, water district officials declined to respond to the filed petition.
“The South Florida Water Management District does not comment on active litigation,” Randy Smith, senior media relations for the district, responded in an email.
The day of the filing, the Sanibel City Council held a workshop to discuss the situation.
Ruane and Sanibel City Attorney John Agnew explained that they had hoped Fort Myers, Bonita Springs and Estero would also be able to hold special meetings in time to approve adding their municipalities to the petition. But, only Fort Myers Beach and Cape Coral were able to do so to meet the 10-day deadline.
“The desire by all five is certainly to be here with us,” Ruane said.
He noted that a joint petition sets the right tone in moving forward on the matter.
“It sets a joint tone that we’re all in this together,” Ruane said.
The council debated how long it would take the others to get onboard, specifically the Lee County Board of County Commissioners since it is the governing body and representative for unincorporated Captiva. Later in the meeting, Ruane reported that he had heard back from Commissioner Larry Kiker, who voiced support for the petition and agreed to bring it before the board at its meeting on Oct. 2.
On Sept. 27, Sanibel City Manager Judie Zimomra provided an update on the other municipalities.
“Next week, Mayor (Kevin) Ruane is scheduled to appear at the city council meetings of Fort Myers, Bonita Springs and Estero to discuss each of these cities also joining the petition,” she said.
With the petition now filed, the next in the process is for a judge to be appointed, according to Agnew. After that is completed, an evidentiary hearing on the matter will be scheduled within 30 days.