FDEP dismisses city's appeal; will not require water testing at Esplanade Marina
The Florida Department of Environmental Protection (FDEP) has dismissed the City of Marco Island's appeal of its recent decision to eliminate all future water quality testing and monitoring at Esplanade Marina.
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. The FDEP agreed.
The Marco Island City Council unanimously filed an appeal of the FDEP's decision, arguing that the Esplanade has failed to test the water quality of its marina for the past decade, thus it cannot claim, as it did in its request to the FDEP, that "the marina is not the source of water quality violations."
Furthermore, 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.
Nevertheless, the FDEP dismissed the city’s appeal of its ruling eliminating all future water quality testing by the Esplanade Marina, stating that the city does not have substantial standing in the issue.
Council Chair Larry Honig said he's "deeply disappointed" by the department's ruling and its absurd claim that an island community does not have substantial standing in a matter that affects the quality of its waters.
"On behalf of Marco Island citizens and taxpayers, I am deeply disappointed in the one-way arrogance expressed by FDEP, this Florida department of alleged 'environmental protection.' I do not understand how something can be protected -- such as water quality -- if there is no baseline and no regular measurement of deviation from the baseline," he said. "The water is at the soul of our high-quality community of homeowners and boaters and fishermen and visitors and business people. It's everything. To say that Marco Island does not have 'standing' in this matter is to put Alice in Wonderland in charge of interpreting the law."
There are three different courses of action the City of Marco Island can take to try to reverse the FDEP's decision:
- Modify and re-submit its appeal to try to justify its standing.
- Seek judicial review of the FDEP's dismissal.
- File a suit against the FDEP and the Esplanade Marina.
Council's next meeting is 5:30 p.m., July 17, in the community room, 51 Bald Eagle Drive. It is unclear whether the councilors will discuss the department's dismissal at that time.