Anti-sewer group sues city over disputed report

The Marco Island political action committee CARES has sued the city, claiming it did not file an obligatory annual capacity analysis report with the Florida Department of Environmental Protection.

The report measures the actual flow of wastewater into a treatment plant compared with its permitted flow.

Public Works Director Rony Joel defended the city.

He said a report titled City of Marco Island: Wastewater Treatment Facility Capacity Analysis Report was submitted to the agency Nov. 14. City Attorney Greg Urbancic held it up at the City Council meeting Feb. 6.

Ed Foster, president of Citizens Advocating Responsible Environmental Solutions, said Feb. 7 that he wasn't convinced.

"All I saw last night was some paper, kind of like Hillary Clinton's billing records suddenly appeared," Foster said.

Foster said he, a group of engineers and CARES attorney Sam Gold searched DEP records in Fort Myers and did not find the report. He also said the DEP could not recall or find the report.

The DEP had not confirmed receipt of the document by press time.

The report states that its purpose is to comply with Florida Administrative Code 62-600.405, which requires that once a capacity analysis report indicates that a plant will exceed its capacity within 10 years, the plant must undergo annual reports. It also says a previous report was submitted in March 2004.

The lawsuit, filed Feb. 3 in Collier County Circuit Court, claims the city did not submit the 2005 report and accuses it and the DEP of violating the code.

"If the city doesn't get its act together for present customers, we believe an expansion will put people at risk for spillage," Gold said. "It only takes one dead manatee or one sick child to have irreparable harm, so we are going to court to stop it."

A capacity analysis report from 2004 predicted that the Marco Island Wastewater Treatment Plant would exceed its permitted capacity of 3.5 million gallons per day by 2011, and said the city must begin designs to upgrade the plant by 2006 and submit yearly reports.

In an e-mail dated Dec. 19, Joel said that in addition to seeking a new operating permit for the treatment plant, the city has an additional permit pending with the DEP. It would increase the permitted capacity of Plant 3 from 1 MGD (million gallons per day) to 3 MGD while maintaining the existing permitted 3.5 MGD during an upgrade of Plants 1 and 2.

Joel said the city will submit another application this year to increase the entire plant's capacity from 3.5 MGD to 4.9 MGD.

The existing permit, which was in place when the city bought the utility in November 2003, was scheduled to expire June 6, 2004.

"Since February 2004 we have been negotiating with DEP on the new permit," Joel said in his e-mail. "A permit is not a one-page document. It is a lengthy document that outlines the operating requirements of the facility, manpower levels, required laboratory testing, maintenance and potential capital outlay. Since there is more than one way to meet regulatory requirements, there is a 'negotiation' process between an applicant and the DEP."

DEP regulation 62-620.335 states that "when an application for renewal of a permit is timely and sufficient, the existing permit shall not expire until the department has taken final action of the application for renewal or until the last day for seeking judicial review of the agency order or a later date fixed by order of the reviewing court."

Gold said that regardless of what happens at the injunction hearing, CARES will press forward with its lawsuit.

"We felt this was really the only way to ensure that the project would be stopped," he said. "CARES will continue legal action to stop the project."