Battle for the Bay: Marco pushes back against the FDEP
Council files appeal of recent decision regarding the Esplanade
The Marco Island City Council unanimously filed an appeal of the Florida Department of Environmental Protection’s (FDEP) recent decision to eliminate all future water quality testing and monitoring at Esplanade Marina at its meeting Monday.
In 1998 the Esplanade entered into a development agreement with the city for the purpose of constructing a waterfront mixed-use development. As part of the agreement, the Esplanade pledged to “provide onsite water management in accordance with the standards of South Florida Water Management District (and) adequately address issues related to public health, safety and welfare.”
Similarly, in 2002 when the Esplanade received a permit from the FDEP to build and operate a marina located in Smokehouse Bay, it entered into a binding agreement to protect the water quality of the bay.
The binding agreement contained a paragraph requiring the marina to "implement a long-term water quality testing and monitoring program." It also warned the marina that "(it) would have to consider eliminating a number of boat slips" should the water quality tests show violations of the state’s water quality standards.
Recently, the marina asked the FDEP to remove that paragraph from the agreement, freeing it from its obligation to test and monitor the bay's water quality.
On May 1 council unanimously voted to oppose the elimination of the testing and monitoring requirements, stating, “we express to the FDEP that the quality of our waterways is extremely important to Marco Island and that we’re very concerned that the testing requirement for the Esplanade Marina may be being considered for elimination.”
Nevertheless, the FDEP granted the Esplanade's request, forcing the city to file an appeal. According to the city's petition, eliminating all future water quality testing and monitoring at the Esplanade Marina poses three major problems:
- It removes the incentive for the marina to adhere to the other conditions of the permit, including the obligation to prevent pollution from the marina operations.
- It eliminates the ability to determine the effect of the marina’s operation toward the overall water quality of Smokehouse Bay.
- It creates an unacceptable risk of increased pollution to Smokehouse Bay, a source of economic and recreational benefit to the city, its residents and tourism economy.
Furthermore, according to the FDEP's own reports, the Esplanade has not conducted water quality testing for the past 10 years; however, in the marina's request to eliminate testing, it stated that that “based upon current testing results, the marina is not the source of water quality violations (and) it is the marina’s understanding that these tests have not yielded unsatisfactory results that would suggest the marina is the source of water quality violations.”
Yet according to the city, a recent independent water quality review "makes clear that there are water quality issues in Smokehouse Bay, which may be directly attributed to operations at Esplanade Marina." Of particular concern are the levels of fecal coliform bacteria and nitrogen.
The city is asking the FDEP to reverse its decision "based on the grossly incorrect and misleading facts presented by the Esplanade Marina to the agency in their application. Its appeal petition will be forwarded to the Division of Administrative Hearing for an administrative final hearing.