DEP May Deny Permit to Reconstruct the Ceitus Barrier

DEP is actually saying that they will deny a permit to reconstruct the Ceitus Barrier unless we literally find a way to hold back the tide. Attached is a copy of the DEP request for additional information regarding the application for a permit to reconstruct the Ceitus Barrier.

Note that paragraph three of the request sets a condition for the permit that is not possible to achieve. Paragraph three requires a plan that would prevent "exchange" of water between the spreader and Matlacha Pass. At peak tide levels, tidal flows go back and forth through the wetlands on the west side of the seven mile long main spreader canal. That's good--the very purpose of the spreader to to facilitate flow through the wetlands.

Paragraph three also appears to require plugging of what they (DEP and Cape Coral) call "breaches" (flowways) through the wetlands--the flowways are actually mother nature trying to restore the historic east-west tidal creeks that served Matlacha Pass before the dredge and fill that illegally created Northwest Cape Coral. There is nothing wrong with those flowways--we need more of them--that's what distributes the fresh water throughout the estuary.

A DEP requirement that the entire seven mile west wall somehow be blocked to water flows makes no sense whatsoever and is impossible to do. That would require a seven mile long dam costing hundreds of millions of dollars. FEP of course knows all that--they also know that neither the Consent Order or any law or regulation requires any such action, and they know that action is not environmentally desirable.

The only purpose of posing such a nonsensical requirement would be to make it impossible to grant the permit. At medium to low tide, all flow to and from the spreader system is through the huge (200 by 5 foot) opening created by removal of the Ceitus Barrier. That means that most of the excess fresh water and pollution and siltation from North Cape Coral is dumped in the small canal north of Pine Island Road in Matlacha--that's the root cause of the environmental damage we are experiencing, and nothing short of reconstruction of an improved Ceitus Barrier will alleviate that problem.

The Ceitus permit application process has been reduced to a joke. Cape Coral, although required by the EMA process to submit the permit application, did not do so in good faith. They intentionally left out information essential to an environmental resource permit and intentionally included nonessential features designed to make the application very difficult to approve. The DEP, by setting permit conditions not possible to meet, is also not proceeding in good faith. Neither Cape Coral nor the DEP are implementing the EMA agreement signed by 14 of the 18 EMA stakeholders and requiring reconstruction of the Ceitus Barrier.

Phil Buchanan email:
From: "Phil Buchanan" To: "Megan Mills" Cc: "Kirk White" , "Jon Iglehart"
Sent: Monday, December 27, 2010 4:49:55 PM Subject:
Re: Ceitus permit request for additional information (RAI)
C'mon Megan and Jon, say it ain't so.
Review this one again. You know that it is not possible or even desirable to try to plug the so-called "breaches" or convert the wetlands to the west into a 7-mile long dam. The more flow through there, the better--that was the purpose of the spreader system. You also know that is DEP property and the Cape has no responsibility to maintain it. Putting this condition on the permit, which is not required by the Consent Order or statutes or regs, serves only as an excuse to deny the permit. Please don't do that to our environment.
Phil Buchanan email:
From: "Megan Mills" To: "Phil Buchanan" Cc: "Kirk White" , "Jon Iglehart"
Sent: Monday, December 27, 2010 11:37:19 AM
Subject: RE: Ceitus permit request for additional information (RAI)
Phil, The RAI was written to ensure that the proposed project satisfies the requirements of the amended consent order as well as all applicable rules and statutes.
Megan Mills Environmental Specialist II
Submerged Lands & Environmental Resource Program South District Office 2295 Victoria Avenue, Suite 364 P.O. Box 2549 Fort Myers, Florida 33902-2549 Direct phone: 239.344.5670 Main phone: 239.344.5600 Intra-agency: 8.5670 fax: 239.332.6969 “More Protection, Less Process”
From: Phil Buchanan
Sent: Monday, December 27, 2010 11:34 AM
To: Mills, Megan Subject:
Re: Ceitus permit request for additional information (RAI)
Megan, I note in the RAI that DEP is taking the position that in order for the Cape to rebuild the Ceitus Barrier, they also have to seal off the entire 7-mile western wetlands. That would of course be very undesirable, completely unnecessary, and as well as totally impossible. As you well know, all of the EMA stakeholders agreed that flow through the wetlands is highly desirable and in fact the main goal of the spreader system is to spread the excess fresh water out as much as possible before it reaches Matlacha Pass. We also agreed that the more breaches the better. Most of us agreed that reconstruction of the barrier would promote return of the dozens of the historic east-west tidal creeks that once carried the flow of fresh water to Matlacha Pass. We also agreed that, at least in the summer, the tides are high enough to flow in both directions over the western wetlands. Trying to seal off the western wetlands makes no sense, and every Ceitus stakeholder agreed on that. The only reason I can think of as to why your office would insist on sealing off the wetlands would be to provide an excuse for denying the permit. Please tell me that's not true.
Phil Buchanan
From: "Megan Mills" To: "Phil Buchanan"
Sent: Monday, December 27, 2010 10:52:03 AM Subject:
RE: Ceitus
Phil, Thank you. I did. Please find a copy of the RAI sent to the City on December 17, 2010, attached to this email
Megan Mills Environmental Specialist II
Attachment I 1995 South Florida Water Management District’s Basis for Review
4.3 Mitigation – Protection of wetlands and other surface waters is preferred to destruction and mitigation due to the temporal loss of ecological value and uncertainty regarding the ability to recreate certain functions associated with these features. Mitigation will be approved only after the applicant has complied with the requirements of subsection
4.2.1 regarding practicable modifications to eliminate or reduce adverse impacts. However, any mitigation proposal submitted by an applicant shall be reviewed concurrently with the analysis of any modifications pursuant to subsection 4.2.1. This section establishes criteria to be followed in evaluating mitigation proposals. Mitigation as described in sections 4.3-4.3.8 is required only to offset the adverse impacts to the functions as defined in sections
4.2-4.2.8 caused by regulated activities. In certain cases, mitigation cannot offset impacts sufficiently to yield a permittable project. Such cases often include activities which significantly degrade Outstanding Florida Waters, adversely impact habitat for listed species, or adversely impact those wetlands or other surface waters not likely to be successfully recreated. Applicants are encouraged to consult with District staff in pre-application conferences or during the application process to identify appropriate mitigation options.
4.3.1 Types of Mitigation Mitigation usually consists of restoration, enhancement, creation or preservation of wetlands, other surface waters or uplands. In some cases, a combination of mitigation types is the best approach to offset adverse impacts resulting from the regulated activity. In general, mitigation is best accomplished through creation, restoration, enhancement or preservation of ecological communities similar to those being impacted. However, when the area proposed to be impacted is degraded, compared to its historic condition, mitigation is best accomplished through creation, restoration, enhancement or preservation of the ecological community which was historically present. Mitigation involving other ecological communities is acceptable if impacts are offset and the applicant demonstrates that greater improvement in ecological value will result. In general, mitigation is best accomplished when located on-site or in close proximity to the area being impacted. Off-site mitigation will only be accepted if adverse impacts are offset and the applicant demonstrates that: a) On-site mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing adjacent land uses or future land uses identified in a local comprehensive plan adopted according to Chapter 163, F.S.; or b) Off-site mitigation would provide greater improvement>>>>>>>>>>