Appeal & Deny Fl. DEP Permit for Cape Coral Chiquita Lock Removal
Appeal & Deny Fl. DEP Permit for Cape Coral Chiquita Lock Removal
Application for an Environmental Resource Permit/Water Quality Certification by The City Cape Coral to permanently remove the Chiquita Lock has been approved and must be rescinded to protect the waters of SW Florida, the manatees and Small Tooth Sawfish.
PERMITEE APPLICANT: City of Cape Coral. FILE No.: 244816-005
The City of Cape Coral, Florida is proposing the removal of the Chiquita Boat Lock. SW Florida waters, residents and wildlife are directly impacted by the proposed granting of the ERP and subsequent removal of the Chiquita Lock, with predictable and undesirable consequences from the release of polluted waters resulting in eutrophication and degradation of the already stressed Caloosahatchee Estuary and Federally protected Matlacha Pass Aquatic Preserve, further endangering the Federally Protected Small Tooth Sawfish and Manatee populations, and that will greatly affect many residents' ability to sustain a livelihood from business activities of owning waterfront motels, water tour companies, fishing charter guides, waterfront restaurants, bait and tackle shops to name a few, with ALL being directly tied to water superior quality, the businesses and residents, request a hearing on the matter of permit issuance and seek relief by the denial of this permit under proposal by FDEP. Consent Order 15 or amended versions in conjunction with the EPA-NPDES and Cape Coral/Lee County MS4 Permits are formative in determining the reasons for permit denial.Historical Information:
The City of Cape Coral State of Florida Municipal Separate Storm Water System Permit (MS4) for compliance with the EPA National Pollutant Discharge Elimination System (NPDES) requires the City to reduce the generation of stormwater pollutants to waters of the state. Consent Order 15 & Cape Coral’s MS4 permit requiring the City to provide and maintain water quality protection remain valid as FLDEP cannot unilaterally change the status of a court order and should be enforced even more stringently now as extensive development occurs within the City, and because of the requirements of the City’s NPDES MS4 permit. The City's NPDES stormwater MS4 permit has several general and specific requirements that require the City to implement a variety of programs to reduce the pollutants discharged from the City's stormwater system. In general, this permit requires the City to take general actions to reduce the generation of and discharge of stormwater pollutants. The City in referencing Consent Order 15 and Contract WM1 06 in the MS4 application sets requirements of these two documents to be part of the City's stormwater management program pursuant to the NPDES stormwater permit. The intent or requirements of Consent Order 15 were never eliminated from Cape Coral’s NPDES MS4 stormwater permit. The MS4 permit that was issued to Cape Coral in September 2011 had provisions for a “stormwater retrofit” as mitigation for removing the Ceitus Lock. However, the stormwater retrofit was never implemented and will likely be the subject for future clarification in the courts. The intent of Consent Order 15 and subsequent MS4 permits for Cape Coral was to isolate the stormwater runoff from Cape Coral for detention and treatment of pollutants in a “spreader waterway” system.
Removal of the Chiquita Lock in the South Spreader will violate the EPA NPDES provisions for the Cape Coral MS4 by co-joining these waters with waters of the state without the isolation and treatment legally required. FLDEP is currently reviewing the Lee County MS4 permit renewal application that includes Cape Coral as a co-permittee. This NPDES permit cannot be reissued without reasonable assurance that discharges from the MS4 system will not cause or contribute to the impairment of a downstream waterbody. In this case the downstream waterbody is the Caloosahatchee Estuary that is impaired for nutrients (total nitrogen). As a comparative example, TN concentrations in the northwest spreader canal system (the Cape Coral MS4 discharge) have exhibited an increasing trend since removal of the Ceitus Lock in 2008 and have undoubtedly contributed to the verified impairment of Matlacha Pass Aquatic Preserve, added to the EPA Clean Water Act 303(d) list in August 2015.
Justification for Permit Application Denial:
• Abandoning the intent of Consent Order 15 that applies to the Cape Coral spreader canal system and allowing removal of the main system component, The Chiquita Lock, which facilitates stormwater treatment as intended by Consent Order, is inappropriate and perhaps illegal. The City claims the system is no longer efficient due to erosion. Cape Coral is to blame for the erosion due lack of maintenance by the City. The City’s Claiming Lock should now be removed due to a lack of efficiency would be a breach of the Court decree (Consent Orders) where lack of maintenance would not be justification for removing the lock.
• Chiquita Lock Removal will increase nutrients to the already impaired Caloosahatchee Estuary for Total Nitrogen duplicating the Ceitus Lock Removal that devastated and continues to impair the Federally Protected Matlacha Pass Aquatic Preserve.
• Lock Removal will eliminate the intended MS4 detention and treatment function of 797 acres (estimated at 3000 – 5000-acre feet) of the south spreader system from the MS4 treatment area. As acknowledged by The City of Cape Coral in response to the FLDEP Request for Additional Information (RAI), removing the lock will allow tidal influence and exchange to overwhelm or substantially change the hydraulic dynamics of the South Spreader treatment area reducing the intended hydraulic functioning of the system. The intended function of the south spreader system can only be maintained by isolating the treatment area and increasing the hydraulic residency time with the lock in place, currently required as part of the MS4 permit.
• The system will NOT be a treatment area without the lock in place. The necessary water detention time needed to effectively remove nitrogen and other pollutants from Cape Coral’s stormwater runoff will be eliminated. Removing such an extensive volume of water from the current NPDES stormwater active treatment system eliminates reasonable assurance that the NPDES system will not contribute pollutants to a downstream waterbody already impaired for nutrient (TN) pollution.
• Lock removal will reduce the function of the treatment system related to its water level enabling redistribution of Cape Coral stormwater from the spreader canals into the mangrove fringe before impacting Federally protected waters of the southerly Matlacha Pass Aquatic Preserve. A review of nitrogen concentrations occurring within the south spreader treatment area indicates that nitrogen concentrations are not declining but continuing to trend upward.
• Similar upward TN trends are evident in the Caloosahatchee Estuary despite implementing load reduction requirements. The increasing trend of TN concentration in the estuary emphasizes the need to reduce discharges and loading from watershed sources including the canals Cape Coral upstream of Chiquita Lock. As no documentation of the current contributing TN load from Cape Coral to the estuary exists, assumptions have been made where full investigative results are mandated before deciding to issue any permit for removal.
• Boating convenience & safety issues relating to access through the Lock would not be sufficient to contravene the purpose of the Lock as intended by Consent Order 15 for Clean Water Act water quality compliance. Boating issues must address the installation of a High-Speed Lock for replacement and improvement, not total removal.
• Cape Coral has, by Tidal Caloosahatchee BMAP Annual Progress Reports, continued to fail in meeting Total Nitrogen Load allocation for the City. At the current rate of TN load reduction, it would take Cape Coral 83 years to achieve the BMAP TN load reduction target assuming no additional loading during the next 83 years. The lock should not be removed until the compensating treatment infrastructure and systems are in place and functioning to prevent any period of time where City stormwater discharge would be contributing to the impairment of the Caloosahatchee Estuary. The City has failed to determine or quantify the treatment capacity needed for nutrient removal to compensate for removing the Chiquita Lock.
In summary the Removal Permit should be denied based on:
1) The Chiquita Lock functions to isolate and treat stormwater runoff from Cape Coral in the South Spreader canal system as required by its MS4 permit.
2) The minimal rate of Total Nitrogen load reduction achieved by Cape Coral through Caloosahatchee Estuary BMAP participation reveals a failing and concurrent increasing trend in TN concentrations from the Cape Coral MS4 treatment area including the South Spreader treatment area; no credit for reduction of nutrients by wet detention can be given due to legacy nutrient accumulation.
3) The nutrient impairment of Matlacha Pass after removal of the Ceitus Lock from the northwest Cape Coral MS4 permit area is a comparative outcome of contributing nutrient pollution in the context of the Chiquita Lock removal as it applies to the already nutrient impaired Caloosahatchee Estuary.
4) The lack of maintenance by the City of the Chiquita Lock and the associated Spreader Waterway should not be justification for abandoning the pollutant sequestering potential of the South Spreader canal system enabled by having the lock in place.
5) The City failed to mitigate the 2008 removal of the Ceitus Barrier as required in the 2011 MS4 permit. Any and All alternatives proposed by Cape Coral to offset nutrient reduction by removing the Chiquita Lock, such as increasing weir height in the fresh water canal system for greater retention to lower nitrogen in an already saturated 50-year-old system, cannot be considered viable. The canals are a source of Nitrogen and not to be considered a method of nitrogen removal especially in light of documented TN levels trending upward. The City has not provided a nutrient budget demonstrating that the freshwater canal system provides any net reduction in TN; hence, the City’s suggestion it be credited for nutrient reduction by the system in compensation for removing the Chiquita Lock must be denied. The City’s historical pattern of ineffectual funding and ineffectively implementing proposals cannot be considered reasonable assurance that removing the Lock will not contribute additional TN loading to the impaired Caloosahatchee Estuary especially since no comparative study has been done to quantify the existing pollutant removal functions of the south spreader waterway.
6) Permanently removing the Chiquita Lock will reduce the hydraulic head in the south spreader that will facilitate the loss of significant quantities of stored water in the freshwater basin through groundwater seepage particularly during the dry season. Additional loss of stored water in the freshwater basin will aggravate the reoccurring crisis of water availability for irrigation supply and public safety.
For the above reasons, Cape Coral cannot provide reasonable assurance that permanently removing the Chiquita Lock will not contribute to the greater impairment of a downstream waterbody as required by the pending Cape Coral/Lee County NPDES, MS4 permit. Based on these concerns, as a direct stakeholder being directly affected by the FLDEP decision to issue an ERP for Lock Removal to The City of Cape Coral, I personally request that the Cape Coral’s Environmental Resource Permit application and the proposed permit to permanently remove the Chiquita Lock be denied.
Keep a Barrier / Boat lock in place to allow for natural filtration of trapped canal waters before they flush into the open waters of SW Florida. Cape Coral can easily accomplish this with replacement of the existing Chiquita Boat Lock with a modern, high-speed boat lock while maintaining water quality and meeting the needs of the community.
My businesses and sustainable livelihood are directly tied to superior water quality. Releasing decades of pollutants will destroy the waters of SW Florida Caloosahatchee Estuary and Matlacha Pass Aquatic P resulting in business failures, loss of jobs, plummeting land and home values, and decreased tax revenues to the City of Cape Coral, Lee County and the State of Florida.