Statements from Calusa Waterkeeper, SCCF, in wake of withdrawals from challenge to Cape Coral’s bid to remove Chiquita Lock
A pair of environmental organizations have withdrawn from a multi-entity challenge to the city of Cape Coral’s bid to remove the Chiquita Lock.
Calusa Waterkeeper, Inc. on Thursday and the Sanibel-Captiva Conservation Foundation on Friday issued a statements that say the organizations remain committed in their opposition to the removal of the water control device intended to prevent pollution from entering state waters but the city’s threat to recoup its escalating legal fees is made the potential financial risk too burdensome for a non-profit.
The Calusa Waterkeeper statement reads:
The Calusa Waterkeeper Board of Directors has made the difficult decision to withdraw as named petitioners challenging the removal of the Chiquita Lock in Cape Coral.
This decision was made not on the merits of the case, but over a technical argument of when our organization became a “notified party,” and thus began the window for filing the challenge in the Florida Department of Administrative Hearings.
The challenge to the permit will continue with other named petitioners.
The City of Cape Coral hired an outside legal firm that specializes in cases and tactics that quash citizen involvement in local government affairs. Their strategies of “papering” the case, running up fees (on the taxpayers’ dime), and intimidating the non-profit organizations and individual citizens have partially worked.
However small the probability that the citizen petitioners may lose the case and be burdened with paying the opposing side’s legal fees, the Calusa Waterkeeper board could not expose the organization to that potential monetary risk.
The law firm representing the City of Cape Coral and Florida Department of Environmental Protection have assigned no less than six attorneys to this case to both overwhelm the citizen petitioners with various motions and filings while also running up the time and cost of their activities. This is another example in a long line of systematic efforts to diminish and discourage citizen initiatives by those in power throughout the state of Florida.
Despite our decision to withdraw, and despite the outcome of this challenge, Calusa Waterkeeper remains opposed to the removal of the Chiquita Lock. Removing this control structure will have negative impacts on the water quality (increased stormwater and nutrient loading) and surrounding habitat (degrading the mangrove fringe and smalltooth sawfish critical habitat) in the Caloosahatchee River and Matlacha Pass, among other concerns brought forward by the petitioners.
The city’s latest request to remove the lock should be denied on many of the same grounds it was denied a few short years ago in Administrative Law Judge Francis Ffolkes’ December 2019 ruling.
The fact that the City of Cape Coral refused to take ‘no’ for an answer and immediately doubled down their spending on more outside consultants and law firms to try to reframe the same action again, should alarm its residents. Similarly, anyone who cares for our environment should be equally alarmed as to why the Florida Department of Environmental Protection continues to approve and aid in these activities.
An improved, higher capacity lock has been discussed multiple times within the City government over the last few decades. In our view, an upgraded lock remains the “win-win” solution to this issue. A new modern lock can be engineered to both safeguard the water quality and groundwater table in the area, while also improving conditions for safe and convenient navigability for both marine wildlife and boaters.
It’s time for the City of Cape Coral to step up and maintain the south spreader system as it was designed; to detain and treat stormwater runoff before being discharged into the estuary. Nutrient laden stormwater runoff contributes to the growth of harmful algal blooms such as red tide and blue-green algae.
It is the mission of Calusa Waterkeeper to protect and restore the Caloosahatchee River from Lake Okeechobee to the coastal waters. Informing the public on the potential harm to water quality and estuarine habitat by the removal of the Chiquita Lock structures is not easy, but it is our duty.
SCCF issued the following release:
SCCF Remains Committed to Keeping Chiquita Lock
The Sanibel-Captiva Conservation Foundation (SCCF) has withdrawn as a petitioner from the legal challenge to stop the removal of the Chiquita Lock in Cape Coral.
SCCF was forced to step away from the legal challenge due to issues of whether or not the parties had received adequate notice prior to filing our petition. Although it is unclear whether SCCF would have been able to remain in the challenge, the City of Cape Coral used the threat of running up massive attorneys’ fees — paid for by Cape Coral taxpayers — to make continuing the challenge too dangerous to our non-profit organization.
“We are disappointed that we are not able to continue as a petitioner. However, we remain committed to our position that the lock should remain in place and to our mission to protect and care for Southwest Florida’s coastal ecosystems,” said SCCF CEO James Evans.
“While unable to remain in the legal case, SCCF believes that the merits of the case are strong and will continue to monitor the ecology and water quality in the areas impacted by the project.
“The Chiquita Lock remains the last backstop in preventing polluted water from entering the estuary from the south spreader system. If the lock is removed, it will likely result in a further decline of water quality and impacts to the surrounding mangrove ecosystems.
“We believe that the City of Cape Coral should honor the agreement formed in the original consent decree and repair the lock to ensure that its pollution is remediated, manatees are protected, and the spreader system continues to function,” said Evans.
“SCCF’s Marine Lab will continue to monitor water quality in the area to ensure that all pollution is accounted for, the appropriate parties are held responsible, and fish and wildlife habitat, including oysters, seagrasses, and mangroves, are protected into the future.”
The city of Cape Coral does not comment on pending or ongoing litigation but did respond to an email Thursday.
“Due to the fact that we do not comment on active legal matters we will not be responding at this time; however, we will address the statements made in the future,” the city’s Communications Office said.
The Florida Department of Administrative Hearings denied on Thursday a request for petition from the city regarding an award of expenses motion, saying … “the City did not attempt in good faith” to resolve matters with the challengers before filing the motion for relief.
The Division of Administrative Hearing will hold and Evidentiary Hearing via Zoom at 9 a.m. on Monday, Aug. 29.
The Zoom meeting is open to the public which may access the proceeding via cell or computer. To do so:
• Computer or Cellphone with Web Camera – If there is stable access to the internet and either a computer or cellphone with a camera, access the hearing by following website to join the meeting: zoom.us/join. Participants will be prompted to download/run the Zoom application and enter the following information:
Meeting ID: 975 456 7568
Participants should immediately enable their computer audio and then start their web camera through the “Start Video” icon in the tool bar along the bottom of the Zoom window. If you have stable internet access and a computer/cell phone with a camera, this is the preferred method for attending the hearing.
• Cellphone or Landline without Camera – If a participant does not have stable internet access and/or a computer/cellphone with a camera, they may participate in the hearing by telephone by dialing the following number from a cellphone or landline and entering the meeting information below:
Telephone Number: 929-436-2866
Meeting ID: 975 456 7568
Participant ID: press the pound symbol
Editor’s note: This story has been updated to include a statement from the Sanibel-Captiva Conservation Foundation, which also has withdrawn from the suit.