CCP files to join petition as intervernor
The Captiva Community Panel recently filed paperwork to join a petition challenging a decision by the water management district on changes to the Caloosahatchee’s minimum flows and levels criteria.
Last month, Sanibel, Fort Myers Beach and Cape Coral filed a joint petition with the Florida Division of Administrative Hearings. The municipalities questioned the validity of the South Florida Water Management District’s “proposed amendments” to the rule on the minimum flows and levels or MLFs.
The district’s board voted to raise the Caloosahatchee MLF criteria from a 30-day flow of 300 cubic feet per second (cfs) to 400 cfs at the Franklin Lock, despite pleas for a higher baseline number.
On Oct. 8, Fort Myers, Bonita Springs and Estero each filed to join the petition as intervernors in a show of support. The next day, the Captiva panel discussed the situation at its monthly meeting.
President David Mintz raised the question of whether the panel felt comfortable joining as an intervernor and what legal stance it had to do so, noting that it would require hiring an attorney.
Panel Member Dave Jensen said he did not believe the panel had the grounds to join.
“But I’d like to see if we can help some other way,” he said.
The panel debated between joining as an intervernor or submitting a letter of support.
“I’m personally in favor of doing it,” Secretary Mike Mullins said of joining. “We can always do a letter later, but my feeling is to be helpful in this case – it would be one more community.”
Treasurer Tom Rathbone questioned the legal costs associated with hiring an attorney.
After some discussion, some on the panel voiced support for a payment cap of $5,000.
“I think it sends a message and I think it’s a good investment,” Panel Member Rene Miville said. “I think it would be a wise move because it sets a foundation of legal teeth to get to the next level.”
Mintz questioned what more the panel could add to the petition, beyond its name.
“I think whatever we do is not going to affect the outcome of what Sanibel is doing,” Panel Member Jay Brown said. “But let’s all recognize our objective here is to be supportive of Sanibel.”
Jensen reiterated that he agreed with showing support, but disagreed with spending the monies.
“I don’t think it will mean anything,” he said.
Max Forgey, planner for the panel, pointed out that attorney Ralf Brookes had shared he would be willing to represent the panel for a flat fee of $5,000 and that he was on his way to the meeting. Upon his arrival, the panel asked Brookes about the role of an intervernor, its grounds to be one and cost.
“It allows us to participate as full parties in the proceedings,” he said.
“As an intervernor, you take as much or as little of a role as you want,” Brookes added.
He noted that he expects Sanibel will be doing most of the heavy lifting, though.
“We would just be there in a support role,” Brookes said.
He confirmed that he would file the petition and follow the case through for the $5,000.
“I don’t want costs to be a factor in your decision,” Brookes said of why.
A motion was made to join the petition and hire Brookes.
The panel approved it 7-1, with Jensen casting the opposing vote.
On Oct. 10, Brookes filed the petition to intervene on behalf of the panel.
In the paperwork, Captiva is identified as a barrier island immediately north of Sanibel and it is explained that the panel was formed for the protection of the island’s natural resources, including the the surrounding waters and ecology of the Caloosahatchee River and Estuary.
“The ‘Mission’ of the CCP includes the protection of ‘clean offshore waters, diverse and healthy marine life and robust native vegetation’ and ‘the protection of its mangrove fringe, water quality as matters of paramount importance. Toward this end, its residents, owners and the business community must work together, with Lee County and other regulatory bodies to sustain the fragile and limited resources of the island,'” it states, also outlining the panel’s related goals and objectives.
The petition notes that CCP members own property or businesses or reside on Captiva and use the waters and natural resources of the river and estuary for recreation and businesses, as well as tourists.
It also points out that the panel authorized the Sanibel-Captiva Conservation Foundation to conduct a water quality study of the island and its near shore estuarine waters in 2009-2011 and continues to fund and work with SCCF on issues, including the loss of acres of tape grass – a MFL valued component.
The paperwork reiterates points in the original joint petition, before concluding with:
“The proposed MFL (400 cfs) is not enough water flow to prevent significant harm to the ecology of the area, including estuarine grass beds (that provide important habitat for fisheries) and to prevent significant harm to other marine organisms that spawn or spend portions of their life cycles in the Calooshatchee River that are important to the ecology of nearshore waters at Captiva Island.
“A substantial number of the CCP’s membership would be adversely affected if the MFL fails to protect and prevent significant harm to the ecology of the Caloosahatchee River and Estuary including these estuarine resources, including grasses, fish and other estuarine organisms in the Caloosahatchee River estuary.
“The health and water quality surrounding Captiva Island is dependent upon the Caloosahatchee River estuary, which is dependent upon the minimum flow and level of water in the Caloosahatchee River to maintain the correct seasonal fluctuations in flow and salinity levels in the estuary.”
In the petition to intervene, Brookes noted that none of petitioners – Sanibel, Fort Myers Beach and the Cape – nor the existing intervernors – Fort Myers, Bonita and Estero – objected to the filing.
“The South Florida Water Management District attorney has indicated they will object,” he stated on Oct. 11. “But the SFWMD has not yet filed a response to the petition motion to intervene.”
Prior to Fort Myers, Bonita and Estero each filing, the district’s legal team made other moves.
On Oct. 5, the SFWMD filed a motion to strike sections of the joint petition.
According to the paperwork, the district “asserts that immaterial, irrelevant, and scandalous material cannot remain in pleadings. Petitioners included incendiary material about blue-green algae and red tide, and the resulting economic impacts to their region. The petition betrays its true intent: to turn this narrow proceeding into an election year, politically charged spectacle. None of these topics are relevant to the narrow question before the court – whether the proposed minimum flow and level (“MFL”) constitutes an invalid exercise of delegated legislative authority.”
It goes on to state that two allegations in the petition are beyond the proceeding’s scope.
– Petitioners’ references to blue-green algae and red tide are immaterial and scandalous:
“The district does not dispute that blue-green algae and red tide have negative impacts to the ecosystem. However, the proposed MFL focuses on what minimum flow the ecological indicators of the region need during the dry season. The proposed MFL was not developed to address the wet season discharges from Lake Okeechobee and the runoff from downstream basins that are presently affecting the region. The two scenarios are separate and distinct,” it reads.
“Petitioners include these statements as a thinly-veiled attempt to turn this proceeding into a politically-charged circus – to create a venue to vent about the nutrient-related water quality, blue-green algae, and red tide issues affecting Southwest Florida.
” Petitioners’ inflammatory allegations have nothing to do with the proposed MFL – which is focused on identifying the point of significant harm to the ecosystem – and do nothing to further this proceeding.”
– Petitioners’ allegations of economic impacts are immaterial and irrelevant:
“Petitioners include several statements about the economic impacts of the current ‘water quality crisis’ on their ‘tourist-based economy.’ Specifically, petitioners state that ‘the tourist-based economy has been and continues to be devastated by poor water quality plaguing Southwest Florida in 2018, as reports of thick layers of algae clogging the waterways and pictures of dead sea turtles, manatees, dolphins, and other sea life are shown on national news,'” it reads.
” The purpose of Chapter 373, Florida Statutes, is to protect and conserve Florida’s water resources The proposed MFL squarely falls within the district’s jurisdiction under Chapter 373 because it codifies the minimum water flow and level to protect ecosystem in the Caloosahatchee River from significant harm.
“Chapter 373, Florida Statutes is not designed to redress economic injuries since economic considerations are not within the zone of protection.”
At the end, the district notes that it conferred with each of the parties. Fort Myers Beach opposed the motion to strike and would file a response; the other parties had not responded by the filing date.
The hearing before the Florida Division of Administrative Hearings is Oct. 29-30.
For more about the joint petition, visit www.captivasanibel.com and search for “petition.”
IN OTHER NEWS
– Brown, chair for the Wastewater Committee, has been setting appointments with Sanibel officials, SCCF and others to collect additional information beyond what was in the final wastewater study.
The panel also voted to move the public presentation from November to January.
– Mullins, with the County Taxation Committee, should have a final report available at the next meeting on what island property owners are contributing to the county and others from taxes.
– Three seats are coming up on the panel; two of which are appointed by the Captiva Property Owners Association and Captiva Civic Association, respectively. Mullins’ seat, however, is open to the public.
Anyone interested in running for the seat must submit their name at the next meeting.