Lee County Natural Resource Division Undermines the Commisioner-Approved Policy

February 28, 2011 -  A meeting called by Commisioner Manning was held this morning at 9 a.m. The purpose of the meeting was to address my concern that the draft MS4 permit now being processed by the Lee County Natural Resources Division undermines the Commisioner-approved policy that the Ceitus Barrier be replaced. The MS4 permit provides authority for entities in Lee County to discharge stormwaters into "United States waters" (also called "Florida state waters") under the National Discharge and Pollution Elimination System (NPDES) provisions of the Federal Clean Water Act. The permit would renew Cape Coral's permit to release stormwaters into Matlacha Pass even though their primary stormwater treatment system for the North Cape area, the North Spreader System, is no longer functioning because of the  failure to replace the damaged Ceitus Barrier.

Persons attending the meeting were as follows:

*Commissioner John Manning, Lee County BoCC
     *City of Cape Coral Councilman Peter Brandt
     *Karen Hawes, Lee County Manager
     *Doug Meurer, Lee County Assistant County Manager/Public Works Director
     *Andrea Fraser, Lee County Interim County Attorney
     *Jed Schneck, Lee County Assistant County Attorney
     *Roland Ottolini, Lee County Division of Natural Resources Director
     *Tony Pellicer, Lee County Division of Natural Resources Manager
     *Oliver Clarke, City of Cape Coral Public Works Department
     *Connie Jarvis, City of Cape Coral Environmental Resources Manager
     *Jon Iglehart, Florida Department of Environmental Resources (South District Office) Director of District Management
     *Eric Livingston, Florida Department of Environmental Resources Program Administrator, NPDES Stormwater Section (participated via phone)
     *Judy Ott, Environmental Scientist, Charlotte Harbor National Estuary Program
     *Phil Buchanan, Citizen from the Greater Pine Island area and EMA Stakeholder
     *Noel Andress, Citizen from the Greater Pine Island area and EMA Stakeholder

  Eric Livingston said he had never heard of the North Spreader System and denied that it had anything to do with the Clean Water Act (actually it was created as a remedy for a Clean Water Act violation), and nothing to do with NPDES permits.Roland Ottolini also denied that the MS4 permit has anything to do with the North Spreader. My protests to the contrary were rejected.

   Inglehart said they had to decide where state waters and the Cape stormwater system start and stop. Until now, the line was at the Ceitus Barrier and the edge of the wetlands. With the barrier gone, the spreader becomes a tidal area, and the line is unclear. DEP and Lee County are holding a series of meetings starting this afternoon to discuss that issue. I asked if I could attend--they encouraged me not to do so and did not tell me the time or location.

   I asked if the Lee County Natural Resources Division could delay publishing the public notice of the draft permit so we could have time to address the Ceitus issue beforehand. I noted that the County Commissioners had voted unanimously last Tuesday to ask for a delay because they had not been previously advised of the pending permit. The Natural Resources Division said no and the DEP agreed--they would stay on schedule. The 21 day appeal period starts to run when the Natural Resources Division publishes the notice. I asked if Lee County would file an appeal if the county Natural Resources Division publishes the notice, and the Acting County Attorney said that the County could not sue itself (which is of course correct).

  I noted that we are backed into a legal corner and suggested that would not now be the case if DNR had implemented the BOCC policy in the draft MS4 permit or would now change it to account for the spreader--I was quickly shouted down by numerous attedees. Roland Ottolini took offense and again noted his view that stormwater release permits and the North Spreader water treatment area are separate issues. He added that Pine Islander statements that he strongly opposes Barrier reconstruction despite BOCC approval were causing people to threaten his family.

  It appears that the Lee County Natural Resources Division is going to make the MS4 permit final, and DEP is going to redefine state waters to include the (soon-to-be former) North Spreader Area.  The end run around the barrier issue will then be compete and DEP will be free to deny the Ceitus Barrier permit. As usual, once again, profits trump the environment.

Phil Buchanan