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The hearing went forward for two days on April 11-12 of last week. One more day of the hearing will be scheduled sometime in May or June. To read a summary of the evidence, please click here.
SEVERAL DEPOSITIONS TAKEN IN CHIQUITA LOCK LAWSUIT
Sworn testimony of several witnesses on both sides has been taken in the Chiquita Lock Lawsuit. The lawsuit is scheduled for a hearing on April 11-12 in Cape Coral:
KEVIN ERWIN -- Kevin is an ecologist who first blew the whistle on GAC when it started to dredge canals in the mangroves of the Matlacha Estuary. At the time, Kevin worked for DEP. He went to the Governor and GAC was stopped in its tracks. In the largest environmental enforcement action in the history of Florida, GAC was forced into bankruptcy. Kevin and the Trustees in Bankruptcy for GAC forced GAC to surrender the mangroves to the State of Florida Wilderness Trust. Kevin oversaw the design of the Spreader Canal System which required the Ceitus Boat Lift Barrier and the Chiquita Boat Lock. Consent Order No. 15 imposed this design on Cape Coral AND the DEP. Kevin has testified that the Consent Order remains in effect today, for good reason, and that removal of the Chiquita Lock violates the order. Kevin also believes that the very same environmental tragedy which occurred after removal of the Ceitus Boat Lift Barrier will befall the residents of Cape Coral south of Pine Island Road if the Chiquita Lock is removed. Removal of the Lock will increase water velocity, lower water levels, and result in loss of freshwater to the mangroves. Those unfortunate owners of the million dollar homes on the south spreader will be looking at the same kind of wasteland we have on the north. The important message from Kevin is this: the canals of Cape Coral are a precious resource for fresh water. There will never be another City authorized to dig canals, because they violate the Clean Water Act. Cape Coral needs to engage in additional protective measures to increase freshwater retention, enlarge spreader holding areas, and reduce the flow of nutrients into the canals. With prudent design of high-speed locks, Cape Coral can enjoy a fairly healthy water environment. Read Kevin's testimony here.
ANTHONY JANICKI, Ph.D. -- Dr. Janicki is a paid expert for Cape Coral. He has testified as a paid expert for municipalities and others on many occasions. For example, he was an expert for Cape Coral when it lost a case challenging the amount of water SFWMD sends down the Caloosahatchee. His opinions in this case are based on "modelling", a mathematical computer program which receives "inputs" and then spits out "outputs" or answers. "Modelling" is what probably generated the saying "garbage in
-- garbage out." The lawyers for the City, however, would not give us the "model" or the "inputs and outputs". Since the rules require that the basis for an experts opinions must be shared, the City is now scrambling to provide us this information. Anyway, you can be assured from Dr. Janicki's model that when the Chiquita Lock is removed, everything will be swell. The water will calmly flow to the river, and the mangroves will nestle happily in their splendor. Dr. Janicki, of course, believes it would be improper to believe that what occurred when the Ceitus Boat Lift was removed will re-occur if the Chiquita Lock is removed. You can read his transcript here.
JOHN CASSANI -- John is, of course, our very own CalusaWaterKeeper, a prestigious designation with great responsibility. John is testifying as an expert for the challengers. He supports retaining the Chiquita Lock, or a new lock, in order to protect the waters of the Caloosahatchee and the Matlacha Estuary. John has always said that the BMAP system used by DEP is severely flawed from a scientific and common sense approach. The nitrogen reduction goals are based on the way Cape Coral looked in 2004. Can you imagine how much more pollution we have today from lawns, roads, construction and storm water run off? In addition, Cape Coral is given "credits" for nitrogen reducing "projects" that were completed long before the level of pollution in the Caloosahatchee was first determined. John also noted the obvious: we had no blue-green algae in the canals behind the lock, while at least 70 dead end canals were choked with algae last summer. You can read John's testimony here.
JON IGLEHART -- Jon Iglehart is the DEP Director in charge of all Southwest Florida. He is personally responsible for steps taken by DEP which have caused the ruination of the Matlacha Estuary. He is aware that in 1977, his own agency issued Consent Order No. 15 to require construction of the North and South Spreader waterways to remedy a multi-million dollar Clean Water Act violation by the original developers of Cape Coral, GAC. He does not believe that Consent Order No. 15 required the construction of the Chiquita Lock because the order says "boat lift" and not "boat lock." He does not believe removal of the Chiquita Lock will cause nitrogen to flow into the River because the lock itself is steel and contains no nitrogen. He does agree the Consent Order required construction of the Ceitus Boat Lift Barrier because that is a "boat lift" and not a "boat lock." Nevertheless, he was responsible for removing the Ceitus Boat Lift Barrier, and refusing to re-build it. We will post his deposition transcript when it is received.
MAYA ROBERT -- Ms. Robert is a clean water specialist for Cape Coral. She was hired about a year ago. English is her third language. She was identified as an "expert" by Cape Coral. In addition, she was supposed to be the spokesperson for Cape Coral on its position on removal of the Chiquita Lock. Well, she knew very little. So, we filed a motion with the Judge for sanctions. You can read the motion and her testimony here.
OLIVER CLARKE -- Mr. Clarke is retired from Cape Coral where he was its principal engineer, although he is not a registered engineer. He was in charge of getting rid of the Ceitus Boat Lift Barrier and was given the job of doing the same with the Chiquita Boat Lock. He is now being paid $105 an hour by Cape Coral to help win the lawsuit. He signed the permit application, but forgot he did. He did not tell DEP removal of the Chiquita Lock would harm the mangroves. He did not think when the Ceitus Boat Lift was removed that the mangroves on the north were harmed. Go see them today. A wasteland. You can read his testimony here.
SARA DAVIS -- Ms. Davis is the DEP Director overseeing what is called the BMAP for the Caloosahatchee Estuary. The BMAP is supposed to set goals for Cape Coral for reduction of nitrogen it sends into the River and the Matlacha Estuary from its canals. If you read Ms. Davis' testimony, you will see this is a complete bureaucratic fiction. Cape Coral's reduction of nitrogen is not actually measured. Instead, Cape Coral submits "projects" to DEP which earn Cape Coral "credits" towards its nitrogen reduction. For example, Cape Coral gets "credits" every year for "creating" swales, educating its residents, cleaning out pipes, street sweeping, and using canal water for irrigation. According to DEP, Cape Coral has a "surplus" of "credits": meaning Cape Coral is actually reducing nitrogen flow by more than it is required. The problem is that if you actually test and measure, Cape Coral is doing nothing of the sort. Since the BMAPs were instituted in 2009 NONE of the contributing polluters have reduced pollution, and the Caloosahatchee is getting worse. In addition, there is no deadline, no penalty, no enforcement, and no one in DEP cares. Go to one of the BMAP meetings and you will see for yourself. The transcript of of her testimony can be found here.
The Amended Permit shows the language from the first Permit stricken and and the new language added. You can review the original and the changes in the Amended Permit here.
City Files Answers to MCA Discovery on Feb, 7, 2019
The City of Cape Coral filed a response to a request to admit certain facts. Perhaps you will not be surprised to know that the Cape Coral lawyers now deny that a DEP Consent Order from 1977 still applies today. Because otherwise, Cape Coral could not remove the Chiquita Lock and would have to replace the Ceitus Boat Lift Barrier. You can see a copy of their denials here.
MCA and Petitioners File Motion for Judge to Deny Removal of Chiquita Lock
On January 18, 2019, Matlacha Civic Association and the other Petitioners filed a Motion asking the Judge to deny DEP and the City of Cape Coral's request to remove the Chiquita Lock. This motion is based on the 1977 Consent Order which requires Cape Coral to maintain both the Chiquita Lock and the Ceitus Boat Lift Barrier, as well as the north and south spreader canals. Both DEP and Cape Coral have failed to comply with the Consent Order. Ironically, the Consent Order was issued by DEP.
With the Consent Order, the original developers of Cape Coral deeded the mangrove lands to the State of Florida in a Warranty Deed also in 1977. You can find a copy of the Motion here.
Matlacha Civic Association, Cape Coral, Matlacha, and Pine Island Residents file Petition to Challenge Removal of Chiquita Lock
On December 14, 2018, the Matlacha Civic Association along with seven other residents from Cape Coral, Pine Island, and Matlacha filed a Petition with the Department of Environmental Protection to challenge Cape Coral's proposed removal of the Chiquita Boat Lock. A copy of the Petition can be found here.