Approximately 90 people filled the St. James City Civic Association hall last Monday night to hear an update regarding the Ceitus Barrier lawsuit.
Phil Buchanan and a coalition of seven Southwest Florida nongovernmental organizations filed a petition Sept. 28, 2013, 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.
Buchanan's slideshow presentation began with slides from 1944 and 1958 showing a surprisingly undeveloped Cape Coral with a population under 3,000. Water flowed then, as it does now, from northeast Cape Coral southwest to the watershed, mixing fresh water with salt water providing a perfectly balanced ecosystem.
"When you consider that the watershed is 115 square miles, which is a very large watershed," Buchanan said. "When you do the math at 640 acres per square mile and the amount of rain we get here in Southwest Florida, it amounts to 3.3 million acre feet of water in a season. That's a lot of water!"
Historically the water spread to 20 or so creeks and through the mangroves into Matlacha Pass. Mangroves must have fresh water to serve as a fish nursery. Pinfish, when very young, require fresh water. But as they get older they gradually require salt water. When the ecosystem doesn't provide the required salinity they die as do many other species in the ecosystem. The importance of salinity to the local ecosystem can not be overemphasized.
"When Gulf America Corporation came in they illegally destroyed the wetlands, illegally discharged the water and illegally dredged the wetlands," Buchanan said. "The Clean Water Act had just been passed and Gulf America Corporation was ordered by the state of Florida to create a spreader system composed of two parts: the north spreader system and the south spreader system. The south spreader system is still working just fine today but because of neglect and vandalism, the north spreader system began to fail. Then when Hurricane Charlie hit in 2004, the north spreader system was 20 years old and damaged so badly it became ineffective."
He continued, "The Ceitus Barrier continued to deteriorate 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.' Repairing the Ceitus Barrier is vital the marine life in the ecosystem.
"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," Buchanan said. "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.
"We have no option other than to litigate," Buchanan said. "We delayed for a couple of years because we thought Lee County was going to do it for us. What we're doing is trying to get them to enforce the previous settlement agreement. But they refused to abide by that settlement. The difference this time is we will have a 'binding' agreement that will be enforced by a judge.
"I can't talk about the legal strategy of the lawsuit," Buchanan said, "but Cape Coral and the Department of Environmental Protection have about three weeks to respond. I would caution you that the state courts in Florida have never been friendly to environmental causes. It will depend on what judge we get and we don't know that yet. This time, if they fail to comply, the judge can issue a daily fine forcing them to comply. Once we hear from them I can update you on what we'll do next. The legal process is a long process and could take some time before this is resolved."