STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CALOOSAHATCHEE RIVER CITIZENS ASSOCIATION, INC. ( RIVERWATCH )

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1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS THE SNOOK FOUNDATION, INC. AUDUBON OF SOUTHWEST FLORIDA, INC. CALOOSAHATCHEE RIVER CITIZENS ASSOCIATION, INC. ( RIVERWATCH ) RESPONSIBLE GROWTH MANAGEMENT COALITION, INC. GREATER PINE ISLAND CIVIC ASSOCIATION, INC. CALUSA LAND TRUST AND NATURE PRESERVE OF PINE ISLAND, INC. PURRE Water Coalition Foundation, Inc. SOUTHWEST FLORIDA WATERSHED COUNCIL, INC. SANIBEL-CAPTIVA CONSERVATION FOUNDATION, INC. PHILLIP G. BUCHANAN, AND NOEL ANDRESS, Petitioners, v. DEP File No. OGC Lee County, Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF FLORIDA and CITY OF CAPE CORAL Respondents. / VERIFIED PETITION FOR FORMAL ADMINISTRATIVE HEARING (*A REQUEST FOR MEDIATION WILL BE FILED SEPARATELY PURSUANT TO DEP S NOTICE OF INTENT)

2 Petitioners file this verified petition for a Formal Administrative Hearing (or Mediation) and each Petitioner seeks full party or intervenor status under Florida Statute and and (6). Petitioners asserts that the activity, conduct, or product to be permitted or taken in the notice of intent to issue the proposed agency action: DEP case number OGC Amended Consent Order issued under state statutes and implementing regulations including Chapter 403 of the Florida Statutes has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state under F.S , as set forth with particularity in this petition below. The county in which the subject matter is located is Lee County. The proposed location where Mediation and/or Formal Administrative Hearing is requested is: Lee County Florida (where subject facility and petitioners are both located). Petitioner provides the following requested or required information and disputes the following issues of material fact and law. Statement how and when petitioner received Department Notice: Petitioner received notice via public notice published in the Fort Myers News-Press on March 9, A statement of how petitioner's substantial interests are affected by the DEP s action: Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. 2

3 Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. Petitioner alleges that the activity, conduct, or product to be licensed or permitted has the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state and requests mediation or initiates a formal administrative hearing to present evidence and both factual and expert testimony under Florida Statutes, Section (6). The organizational Petitioners are all Florida corporations not for profit with at least 25 current members residing within Lee county where the activity is proposed, and were formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, and are Florida corporations not for profit formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. Petitioner asserts standing under both Chapter 120 and Section (6), Florida Statutes. Petitioners, including a substantial number of the members of the organizational Petitioners, will be directly and immediately adversely affected by the proposed action as follows: 3

4 1. The Snook Foundation, Inc. is an active Florida not-for-profit corporation whose address is 1600 Ken Thompson Parkway, Sarasota, FL It was formed in 1997 and has some 4,000 members. Its vision includes achieving snook habitat protection, culturing, stocking, enlightened regulation, research, and education [as well as] improved understanding and protection of critical snook habitat The Snook Foundation Inc. s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on snook habitat utilized by a substantial number of members who fish for snook and enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Snook Foundation, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of 4

5 the notice of proposed agency action. The Foundation members received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 2. Audubon of Southwest Florida, Inc. is an active Florida not-for-profit corporation whose address is P.O. Box , Fort Myers, FL The mission of Audubon of Southwest Florida is to protect plants, animals, and their habitats and to promote environmental education and a greater community involvement with the natural world. Its priorities for 2008 include the following statement: Southwest Florida is one of the fastest growing areas of the nation, with large amounts of land under conversion to urbanizing areas. Audubon of Florida is engaged in a plan for protection and restoration of the ecosystems of this dynamic region... The area has three signature species that help the public identify with the need to protect and restore land and waters: Florida panthers, which require large unrestricted territories, nesting Wood Storks, which depend on seasonal wetlands for forage, and juvenile Snook, which require healthy estuarine environments. All species are profoundly affected by watershed management, local land use plans and development activities. These three species serve vital roles as indicator species, helping gauge the effectiveness of ecosystem-wide protection and restoration efforts. Audubon s commitment to Wood Stork, Panther and Snook abundance emerges from the Corkscrew Swamp Sanctuary and extends through the vital watersheds in the region, including Babcock Ranch, Caloosahatchee River, Charlotte Harbor [which includes Matlacha Pass] and Fisheating Creek, that provide critical habitats. Audubon s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on snook habitat utilized by a 5

6 substantial number of members who fish for snook and enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. Audubon is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. Audubon members received notice of the amended consent order by the News- Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 3. The Caloosahatchee River Citizens Association, Inc., also known as CRCA or Riverwatch, is a not-for-profit corporation whose address is Carolyn Lane, North Fort Myers, FL 33917, mailing address P.O. Box 1165, Fort Myers, FL Riverwatch is dedicated to the protection of the River and its watershed, through 6

7 education and promotion of the responsible use of the river for the enjoyment of all people. It was formed in 1995, has expanded its outreach to the community, and continues to grow and expand its mission and message in Southwest Florida. Riverwatch s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on natural resources, water quality and on wildlife and fish habitat utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. Riverwatch is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. Riverwatch members received notice of the amended consent order by the News-Press notice of March 9, For purposes of 7

8 this proceeding, the Board s contact address and information is that of its undersigned counsel. 4. The Responsible Growth Management Coalition, Inc. is a not-for-profit corporation whose address is P.O. Box 1826, Fort Myers, FL The Coalition was organized and exists for the purpose, as stated in its bylaws, of promoting responsible growth management within the parameters of the Florida Statues and Administrative Code through informed citizen participation. Their mission statement reads The Responsible Growth Management Coalition fosters and supports practices that help to ensure that Southwest Florida (SWFL) remains a desirable place to live for all citizens. We advocate for sustainable development practices that link growth to appropriate infrastructure, minimize environmental impacts, permanently preserve public space, and provide a safe and accessible lifestyle. We accomplish this through informed public participation, education, innovation, and litigation. Working together we can protect and restore SWFL's quality of life. The Responsible Growth Management Coalition, Inc. substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent 8

9 Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Responsible Growth Management Coalition, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The Responsible Growth Management Coalition Inc. s substantial interests are affected not only because the Coalition has responsibility for minimizing environmental impacts in the region, but many of its members also live in the immediate area of Pine Island and the estuary that will be impacted by decisions made in this proceeding. The Coalition has a long history of working to protect the natural resources and water quality in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. The Coalition members received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 5. The Greater Pine Island Civic Association, Inc. is an active Florida not-for-profit corporation whose address is P.O. Box 3044, Pineland, FL The Greater Pine Island Civic Association, Inc. has a long history of working to protect the natural resources and water quality in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. The Greater Pine Island Civic 9

10 Association, Inc. was organized and exists for the betterment of the Greater Pine Island area, and towards that end engages in activities to protect the property interests and preserve water quality, natural resources for the enjoyment of its membership, including residents, property owners, and businesses of Greater Pine Island, St James City, Bokeelia, Matlacha, and Pineland. The Association s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Greater Pine Island Civic Association, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The 10

11 Association members received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 6. The Calusa Land Trust and Nature Preserve of Pine Island, Inc. is an active notfor-profit corporation whose address is P.O. Box 216, Bokeelia, FL It was founded in 1976 to conserve the natural resources of Greater Pine Island and continues very actively to do so. The Trust s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Calusa Land Trust and Nature Preserve of Pine Island, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit 11

12 corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The Trust members received notice of the amended consent order by the News- Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 7. PURRE Water Coalition Foundation, Inc. is an active not-for-profit corporation whose address is 7181 College Parkway, Suite 40, Fort Myers, FL (mailing address: South Cleveland Avenue, Suite 256, Fort Myers, FL 33907). PURRE (People United to Restore Our Rivers and Estuaries) is an organization of more than 25 citizens of Lee County who live, recreate or engage in commercial activities near, in and on the waters of Southwest Florida and whose lives are directly and indirectly affected by the quality of the marine ecosystem. PURRE (or People United to Restore Our Rivers and Estuaries) has as its goal are to restore and protect the marine ecosystem of South Florida and in doing so, protect our economy. PURRE engages in actions the objective of which is restoration and protection of the marine ecosystem of South Florida, including funding expert studies, meeting with decision-makers to explore means of improving water quality, supporting enactment of environmentally beneficial legislation and educating and uniting the public to advocate for change of current policies that are desecrating our environment and quality of life. PURRE s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer 12

13 direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The PURRE Water Coalition, Inc. is a Florida not-forprofit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The organization's members received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Board's contact address and information is that of its undersigned counsel. 8. The Southwest Florida Watershed Council, Inc. is a Florida not-for-profit corporation whose address is P.O. Box 61063, Fort Myers, FL The mission of SWFWC is to protect, conserve, manage, and/or restore the land and water resources of the Caloosahatchee and Big Cypress Watersheds. Through increased awareness, participation and cooperation among all stakeholders in consensus building, planning and decision making, we are working to meet the economic, natural, and cultural needs for this and succeeding generations. The Council s substantial interests are affected because 13

14 of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Southwest Florida Watershed Council, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The council s members received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 9. The Sanibel-Captiva Conservation Foundation, Inc. is an active not-for profit corporation whose address is 3333 Sanibel-Captiva Road, Sanibel FL

15 (mailing address P.O. Box 839, Sanibel, FL ). SCCF was founded in 1967 to preserve natural resources and wildlife habitat on and around Sanibel and Captiva Islands. SCCF s substantial interests are affected because of the immediate and direct adverse impacts resulting from the decisions made in this proceeding on water quality and natural resources utilized by a substantial number of members who enjoy fishing, boating, recreation, birding, and wildlife observation of the flora and fauna in the Matlacha Pass Aquatic Preserve, Pine Island Sound Aquatic Preserve and the Charlotte Harbor Estuary. Petitioners will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioners, thus directly affecting their use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. The Sanibel-Captiva Conservation Foundation, Inc. is a Florida not-for-profit corporation with at least 25 current members residing within Lee county where the activity is proposed, and was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of water quality, and is a Florida not-for-profit corporation formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. The Foundations members received notice of the amended consent order by the News-Press notice of 15

16 March 9, For purposes of this proceeding, the Board s contact address and information is that of its undersigned counsel. 10. Petitioner Phillip G. Buchanan s substantial interests are affected because he and his family own a home and reside full time on Pine Island and he utilizes Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve for fishing, boating, recreation, birding, and wildlife observation of the flora and fauna of the area. Petitioner Buchanan s use and enjoyment of the water quality and natural resources will be directly and immediately adversely affected by the outcome of this proceeding. Petitioner will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioner, thus directly affecting his use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. Petitioner received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Petitioner s contact address and information is that of its undersigned counsel. 11. Petitioner Noel Andress is a resident of and property owner on Pine Island. His address is 7101 Capri Lane, Pineland, Mr. Andress received notice of the amended consent order by the News-Press notice of March 9, Petitioner Noel Andress substantial interests will be affected because he and his family also own a home 16

17 and other properties on Pine Island and reside there full time and he utilizes the Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve for fishing, boating, recreation, birding and wildlife observation of the flora and fauna of the area. Petitioner Noel Andress use and enjoyment of the water quality and natural resources will be directly and immediately adversely affected by the outcome of this proceeding. Petitioner will suffer direct and immediate and irreparable harm if the Ceitus boat lift and berm are removed and the canal dredged providing a direct connection to Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve under the proposed amended consent order. Removal of these structures without first constructing and providing a suitable replacement boat lift or boat lock (as set forth in the existing Consent Order) would allow direct flow of polluted canal waters into areas into protected natural resource areas utilized by petitioner, thus directly affecting his use and enjoyment of the water quality and natural resources of the area including Matlacha Pass Aquatic Preserve and Pine Island Sound Aquatic Preserve. Petitioner received notice of the amended consent order by the News-Press notice of March 9, For purposes of this proceeding, the Petitioner s contact address and information is that of its undersigned counsel. Statement of material facts disputed by the petitioner and specific rules or statutes the petitioner contends require modification or reversal of the consent order. Based upon Petitioners best information and belief as it exists at the time of filing this Petition, Petitioner disputes the following issues of material fact: 17

18 The proposed consent order purports to allow construction/demolition activities including dredge and fill connecting the stormwater spreader system to Outstanding Florida Waters (OFW) without first requiring that a permit be obtained. The Amended Consent Order purports to allow such activities without a permit and without first obtaining reasonable assurances that the direct discharge to waters of the state will not violate water quality standards in the receiving waters, including the state water quality standards applicable to Outstanding Florida Waters of Matlacha Aquatic Preserve. The Amended Consent Order, proposed agency action, is insufficient to protect and preserve the water or natural resources of Lee County, Florida including Outstanding Florida Waters of an Aquatic Preserve and is contrary and adverse to the interest, uses of Petitioner and the citizens of the state of Florida. The Amended Consent Order purports to allow construction/demolition/connection of additional stormwater discharges to an Outstanding Florida Waters of the Matlacha Aquatic Preserve. Outstanding Florida Waters (OFWs) are afforded a higher degree of protection through rule (2) (3) of the Florida Administrative Code. Standards for issuance of permits for discharges within or likely to degrade Outstanding Florida Waters are listed in rule The Amended Consent Order will cause or contribute to violations of state water quality standards, including standards applicable to OFWs. Removal of the Ceitus Boat Lift and surrounding lands will authorize a direct connection of the spreader canal stormwater system to the Outstanding Florida Waters of Matlacha Aquatic Preserve. The spreader canal stormwater system is the receiving water body which drains large areas of rapidly urbanizing lands with numerous septic tank systems and into which runoff flows which contains fertilizers, nutrients and other 18

19 pollutants which have the potential to degrade the the Outstanding Florida Waters of Matlacha Aquatic Preserve. Outstanding Florida Waters are afforded a higher degree of protection through the antidegradation permitting requirements found in rule The applicant has failed to meet permit criteria or provide reasonable assurances that the discharge will not cause or contribute to a violation of state water quality standards (and thereby fail water quality certification) for Outstanding Florida Waters of the Matlacha Pass Aquatic Preserve and Class II/Class III waters of the state under , Criteria for Surface Water Quality: including but not limited to: F.A.C (6) Bacteriological Quality (Fecal Coliform Bacteria); (37) Imbalance (see Nutrients); (47) (b) Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Harmful algal blooms (HABs) have occurred in Matlacha Pass Aquatic Preserve, and organisms constituting HABs are present in the waters of Matlacha Pass Aquatic Preserve that are affected by excess or additional nutrients present in the stormwater contained in the spreader canal system. Nutrients can cause algal blooms causing population explosions of algal blooms and HABs so as to cause an imbalance in natural populations of aquatic flora or fauna. Algal blooms can also lead to increased oxygen demand (BOD) depleting available oxygen in the water column. Septic tanks in the vicinity of the spreader canal system in northwest Cape Coral, northeast Cape Coral and beyond introduce additional nutrients and bacteria into the water column of the spreader canal system that would cause or contribute to water quality violations in surface waters. 19

20 The Amended Consent Order does not provide reasonable assurances that the violator/applicant will not result, cause or contribute to violations of Water Quality Standards and State Water Policy on salt water intrusion as the waters of the North Spreader Canal system become subject to tidal influence and allow additional saline intrusion in the surrounding groundwater, in an area which is served by numerous private wells, including but not limited to F.A.C. Because connection of the spreader canal system will cause or contribute to salt water intrusion it is contrary to the State Water Policy F.A.C. Section Declaration and Intent: (1) The waters of the state are among its basic resources. Such waters should be managed to conserve and protect natural resources and scenic beauty and to realize the full beneficial use of the resource. Recognizing the importance of water to the state, the Legislature passed the Water Resources Act, Chapter 373, F.S., and the Air and Water Pollution Control Act, Chapter 403, F.S. Additionally, numerous goals and policies within the State Comprehensive Plan, Chapter 187, F.S., address water resources and natural systems protection. (2) This chapter is intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources, based on statutory policies and directives in Chapters 187, 373, and 403, F.S Water Supply Protection and Management. The following shall apply when the use of water is regulated pursuant to Part II of Chapter 373, F.S.: (o) Whether the proposed use would significantly induce or increase saltwater intrusion Surface Water Management Regulation. 20

21 (1) The following shall apply to the regulation of surface water pursuant to Part IV, Chapter 373, F.S. (a) The construction and operation of facilities which manage or store surface waters, or other facilities which drain, divert, impound, discharge into, or otherwise impact waters in the state, and the improvements served by such facilities, shall not be harmful to water resources or inconsistent with the objectives of the Department or District. (b) In determining the harm to water resources and consistency with the objectives of the Department or District, consideration shall be given to: 1. The impact of the facilities on: a. Water quality; b. Fish and wildlife; c. Wetlands, floodplains, estuaries, and other water resources; g. Saltwater or pollution intrusion, including any barrier line established pursuant to Section , F.S.; and i. Other factors relating to the public health, safety, and welfare. Petitioner also raises the following additional Issues of Fact and Law with regard to the whether the proposed agency action Amended Consent Order should replace prior agency action including the requirements of the existing Consent Order: After the North Spreader Waterway developed breaches in January 2006 on the west wall of the Spreader on State owned property that further expanded in July 2006, FDEP filed an amendment to Consent Order 15 mandating the City of Cape Coral provide design specifications for boat lift and stormwater barrier improvements at the south end 21

22 of the North Spreader Canal within 120 days of the order. The design plans were to be reviewed by FDEP, modifications made if necessary and upon FDEP s approval the construction of the improvements plans were to be completed with 260 days. These deadlines have passed and the City is in violation of the current consent order. Whether even in its current state, the spreader canal system still provides for settling of harmful water pollutants prior to entering into the buffer preserve area of Matlacha Pass Aquatic Preserve and whether removal of the Ceitus boat lift and berm without replacement will adversely affect those functions and cause or contribute to violations of state water quality standards. Whether even in its current state, the spreader canal system still inhibits salt water intrusion into groundwater aquifers currently used by private wells and whether the spreader canal has been and can be adequately maintained to provide these functions Preserve and whether removal of the Ceitus boat lift and berm without replacement will adversely affect those functions and cause or contribute to salt water intrusion of groundwater aquifers. Whether the replacement boat lift or lock required under the prior existing Consent Order is feasible, and whether replacement of the separation between canals of the OFW and the spreader stormwater canal system would continue to provide benefits that are clearly in the public interest for settling of harmful water pollutants prior to entering into the buffer preserve area of Matlacha Pass Aquatic Preserve and inhibits salt water intrusion into groundwater aquifers currently used by private wells. Whether DEP has complied with Section (2), Fla. Stat., which states that: The state NPDES permit shall be the sole permit issued by the state under this chapter regulating the discharge of pollutants or wastes into surface waters within the state 22

23 covered by the United States Environmental Protection Agency approved state NPDES program and Section (9), Fla. Stat. (the section governing Ecosystem Management Agreements), which states: Implementation of this section by the department must be consistent with federally delegated programs and federal law. Whether there are reasonable assurances that removal of the Ceitus Boat Lift and Berm in the Amended Consent Order will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-4, 62-40, , , , , , , , and , F.A.C., including any antidegradation provisions of paragraphs (1)(a) and (b), subsections (2) and (3), and Rule , F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections (2) and (3), F.A.C. will be violated. Whether the proposed agency action would permit direct pollutant discharges to OFWs which would lower ambient (existing) water quality or indirect discharges that would significantly degrade the Outstanding Florida Water. Whether the new dredging and removal of the berm previously separating the north spreader canal from the canal discharging into the OFW must be clearly in the public interest, taking into consideration: 1. Whether the activity will adversely affect the public health, safety, or welfare or property of others; 2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. 3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; 4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; 5. Whether the activity will be of a temporary or permanent nature; and 23

24 6. The current condition and relative value of functions being performed by areas affected by the proposed activity. ( (1)(a), F.S.). RESERVATION OF FEDERAL AND STATE RIGHTS & REMEDIES DEP cannot legally circumvent the federally imposed NPDES stormwater permitting process through a consent decree and an Ecosystem Management Agreement. In an abundance of caution and to protect any rights guaranteed under law, Petitioner will separately file a 60 day notice of intent to pursue and does not intend to waive its right to seek full and appropriate relief under federal statutes in federal courts, including federal agency and/or judicial review, or injunctive relief prohibiting on-going violations and discharges in violation of state or federal statutes including but not limited to, the federal Clean Water Act. The proposed Amended Consent Order purports to allow connection of these two man-made canals without first requiring individual NPDES point source permit for such discharge or requiring revision or amendment of Lee County s or the City of Cape Coral s non-point source stormwater (MS4) permit(s). The Amended Consent Order fails to ensure the stormwater is cleansed to the maximum extent practicable as required by federal law. Additional Federal claims regarding failure to prepare an Environmental Assessment and Environmental Impact Study or Supplemental Environmental Impact Statement under the federal National Environmental Policy Act (NEPA); compliance with consultation requirements under the federal Endangered Species Acts (ESA) and requirements for review of impacts on essential fish habitat of Matlacha Pass, Pine Island Sound and Charlotte Harbor; and any and all rules and regulations promulgated under Federal Acts or any applicable program delegation requirements. 24

25 Relief sought in this Proceeding: Petitioners seek a formal administrative hearing (and will request mediation to discuss) and respectfully requests that DOAH and DEP review the evidence presented, the applicable rules and statutes and enter a Recommended Order and Final Order that would result in either: (a) denial of the amended consent order; (b) deletion of the Amended Consent Order provisions allowing the violator to remove the Ceitus Boat Lift and Berm without first replacing the separation in the stormwater spreader system, (e.g. installing a replacement boat lift or boat lock) (c) deletion of the Amended Consent Order provisions allowing the violator to remove the Ceitus Boat Lift and Berm without first obtaining a permit; (d) modifications to the proposed agency action to require that the violator obtain a permit(s) providing reasonable assurances that water quality standards will not be violated when connecting the stormwater spreader canal to the canal directly discharging into the OFW waters of the Matlacha Aquatic Preserve; (e) modifications to the proposed agency action to require that the violator replace the Ceitus Boat Lift and Berm with a replacement boat lift or boat lock before removal, demolition and dredge and fill activities occur at the Ceitus Boat Lift and Berm as required by the existing Consent Order; (f) modification of the agency action to incorporate additional conditions or project modifications to further reduce adverse impacts, and (g) any other full and appropriate relief deemed appropriate by the Agency or DOAH. 25

26 Respectfully submitted, Ralf Brookes Attorney Fla Bar No E Cape Coral Parkway #107 Cape Coral, Fl (239) (866) fax ralf@ralfbrookesattorney.com CERTIFICATE OF SERVICE I certify that the foregoing petition requesting a formal administrative hearing has been filed by fax on the 31 ST day of March 2008 with the: Department of Environmental Protection, Mail Station Commonwealth Boulevard, Tallahassee, Florida FILED BY FAX WITH DEP at (850) and Also as.pdf to Lea.crandall@dep.state.fl.us And by hand delivery on the 31 ST day of March 2008 to City of Cape Coral Mayor and City Attorney P.O. Box , Cape Coral, Florida, Respectfully submitted, Ralf Brookes Attorney Fla Bar No E Cape Coral Parkway #107 Cape Coral, Fl (239) (866) fax ralf@ralfbrookesattorney.com