The city of Cape Coral has been put on notice that an environmental coalition will sue unless a new barrier is installed in the North Spreader Canal.
The group filed a 60-day notice of a lawsuit to enforce a previous Settlement Agreement and Department of Environmental Consent Order requiring replacement of the Ceitus Barrier on the North Cape Coral Spreader Canal. The replacement barrier must include either a boat lift or boat lock and must be located about 1,000 feet north of the previous hurricane-damaged barrier, according to a release issued Saturday.
The petitioner/plaintiffs are Phil Buchanan, River-watch, Responsible Growth Management Coalition, Greater Pine Island Civic Association, Calusa Land Trust, Watershed Council, and Sanibel-Captiva Conservation Foundation.
The city of Cape Coral and the Department of Environmental Protection are listed as defendants.
"The environmental situation is intolerable and cannot be allowed to continue," the notice states. "It's time we asked the court system to compel Cape Coral and DEP to abide by the law and their own agreements."
According to the release, "The Barrier is an essential component of a functioning spreader system, the purpose of which is to maintain historical storm water flows through the wetlands. Without the Barrier, the wetlands have been denied fresh water essential to the fish nursery, and portions of Matlacha Pass have been poisoned by excess fresh water and siltation."
The lawsuit asks the Circuit Court to:
1) Enforce the 2008 Settlement Agreement by which Cape Coral agreed to restore the Ceitus Barrier (with a boat lift or boat lock), and
2) Require DEP to enforce its own consent orders, which also require restoration of the Ceitus Barrier (with a boat lift or boat lock).
A second release provides additional details.
"The Ceitus Barrier historically separated stormwater from flowing directly into Matlacha Pass until it was removed by Cape Coral. Without it stormwater now dumps directly into one location - Matlacha Pass, which is an Outstanding Florida Waterbody."
The 60-notice is required by Florida law before a suit can be filed against a government entity.
The Settlement Agreement in question was signed in 2008 by Cape Coral and DEP, as well as Lee County and nine non-profit environmental organizations and individual residents.
"The Settlement Agreement resolved a previous legal dispute over Cape Coral's refusal to replace the Barrier. The Settlement Agreement required that Cape Coral seek permits to restore or replace the Barrier. DEP was to approve the permits within 30 days so the Barrier would be in place before the rainy season in 2010. However, Cape Coral did not obtain or diligently pursue the permits as agreed, and nearly two years have passed," the release states. "DEP has thus far done nothing to enforce the Consent Order or the Settlement Agreement."
The Lee County Board of County Commissioners previously voted 5-0 to bring a lawsuit to enforce the Settlement Agreement and have collected data and entered pre-suit negotiations.
"The removal of the Ceitus Barrier changed what was a stormwater spreader system into a stormwater drainage ditch that dumps directly into Matlacha Pass, a designated 'Outstanding Florida Water.' The excess poor quality fresh water and siltation during the rainy season has a disastrous affect on the survival of salt water dependent marine life, including sea grasses. Rerouting of the stormwaters from their historic flows through the wetlands directly into Matlacha Pass also (1) also deprives wetlands and fish nurseries of essential fresh water, and (2) prevents wetlands from filtering the water before it reaches Matlacha Pass. The result is less fish and more pollution."
"The coffee-colored, polluted water now flowing through our estuary is not all coming down the Caloosahatchee - some of it is draining through North Cape Coral and down into what presently constitutes the North Cape Stormwater Drainage Ditch into Matlacha Pass," said St. James City resident Phil Buchanan, one of the petitioners, in the statement. "This violates the terms of our Settlement Agreement as well as the DEP Consent Order, and it's time we enforce these legally binding agreements--we should not have to insist that our governments obey their own laws. We can no longer tolerate governmental agencies that doing nothing when it comes to our environment."
All of the petitioners were among the 18 voting government and private organizations that signed the 2008 agreement and were part of the Environment Management Agreement, the committee that conducted the 2.5 year study of the Ceitus issue.
The EMA had voted 14-4 to restore the Ceitus Barrier and the suit maintains that vote was binding on Cape Coral and the DEP.
The city, which voted against reinstallation disagrees. The municipality did, however, seek permitting to install a new barrier.
The DEP declined the permit.
Sources: Press releases issued Saturday by the environmental groups that have filed the 60-day notice