On Sept. 28, 2013, a coalition composed of seven Southwest Florida non-governmental environmental organizations and one private citizen filed a petition threatening a lawsuit against the city of Cape Coral and the state of Florida unless a new barrier was installed in the North Canal Spreader. On Dec. 27, that lawsuit was filed in the Circuit Court of the Twentieth Judicial District in and for Lee County.
The lawsuit is about restoring the ecosystem and the waters around Matlacha and Pine Island and has been ongoing since the earliest days in the development of Cape Coral. In the 1970s, the developer, Gulf American Corporation, was ordered to cease dredging the canals Cape Coral is so famous for because the stormwater runoff was damaging the ecosystem in Charlotte Harbor and Matlacha Pass.
GAC was ordered to install a system to collect water from the areas already developed and distribute those waters in an even "sheet flow" to the west into Matlacha Pass in an attempt to recreate the historical water flows to the mangroves and wetlands. This resulted in construction of the Ceitus Barrier and spreader system. The "sheet flow" allows for the runoff waters to "filter" out impurities before it enters Matlacha Pass and the Charlotte Harbor ecosystem therefore reducing pollution and keeping the salinity within a normal range. The area is known as the North Spreader Canal.
As Cape Coral grew the stormwater runoff increased. In 2004, when the system was more than 20 years old, Hurricane Charlie damaged the spreader canal and the boat lift. In the years immediately following Hurricane Charlie, the breeches gradually worsened until 2006 when a number of breaches developed in the western spreader wall of the canal. The largest breach was found around the western edge of the boat-lift. In 2008 heavy rains damaged the system further causing "massive marine die-off" according to the lawsuit.
The press release announcing the filing of the lawsuit states, "The lawsuit will enforce the terms of a Consent Order and Settlement Agreement 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 over two years have passed. DEP has thus far done nothing to enforce the Consent Order or the Settlement Agreement."
"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 Storm water Drainage Ditch on into Matlacha Pass," Phil Buchanan, a Pine Island resident and party to the lawsuit, said in the release. "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 do nothing when it comes to our environment.
Parties to the lawsuit:
* Caloosahatchee River Citizens Association Inc. (Riverwatch)
* Responsible Growth Management Coalition Inc.
* Calusa Land Trust And Nature Preserve of Pine Island Inc.
* Sanibel-Captiva Conservation Foundation Inc.
* Greater Pine Island Civic Association Inc.
* The Southwest Florida Watershed Council Inc.
* Environmental activist Phil Buchanan
"The real issue here isn't pollution, Buchanan said. "It's too much fresh water in one place it's fresh water distribution - that's the real issue. There are also more than 17,000 septic systems up in Northwest alone just feet away from the canal system.
"The county was going to bring a lawsuit but the last election changed all that," Buchanan said. "Two and a half years of testimony, all of which indicated the barrier had to go back, there were only two 'no' votes: the Cape and the Northwest Neighborhood Association."
The lawsuit contends that the waters of Matlacha Pass and Pine Island continue to be damaged as a result of the inaction of Cape Coral in repairing the Ceitus Barrier and replacing the boat lift.
"We just want them to enforce the terms of the Consent Order in 2008 and to restore or replace the barrier," Buchanan said. "We really shouldn't have to file a suit for them to follow their own laws."
"Now we wait for their response," he continued. "Once we filed our complaint they have 20 days to respond. Then I get another 20 days to respond to their response and we go back and forth. Normally this happens only two or three times.
"I expect their answer will be that they filed their application and it was turned down," Buchanan said. "O.K. then lets go before a judge where the application can be reviewed. I don't think a judge is going to agree with you."