Court protects boating on Fisheating Creek

Like the winding waterway itself, legal battles over Fisheating Creek have taken some complicated turns.

A ruling on the latest dispute states that access for boaters on Fisheating Creek/Cowbone Marsh must be maintained at least 3 feet deep and not narrower than 25 feet.

On Dec. 21, Circuit Judge Charles Dodson granted a motion for the temporary injunction against the State Florida Board of Trustees of the Internal Improvement Trust Fund (the Trustees), Florida Department of Environmental Protection (FDEP) in its capacity as staff to the Trustees, and the Florida Fish and Wildlife Conservation Commission (FWC).

Special to the Okeechobee News/Dale Conyers.  Public access to Fisheating Creek was once again affirmed by a court of law on Dec. 21. The latest legal dispute involving the creek had former allies on opposite sides.

The plaintiffs in the case — Environmental Confederation of Southwest Florida Inc. (ECSF), and Save Our Creeks (SOC) — were historically allies of the Trustees in fighting for the environmental preservation of the creek, and the public’s right to use the waterway.

But they wound up at odds over the management of the waterway when an effort to remove aquatic vegetation took out more material than intended.

The judge’s latest ruling deals with a complaint filed by ECSF and SOC on Feb. 27, 2015, to stop FDEP and FWC from filling part of Fisheating Creek with sand, which the state agencies claimed was necessary to repair the damage left by the aquatic vegetation removal.

 

An evidential hearing was held on July 13, 2015. After that hearing, the Trustees and FDEP filed a motion to stay the case because of an administrative proceeding. The court granted that motion on Sept. 4, 2015. That stay remained in effect until Oct. 5, 2016 when the court lifted the stay.

“That is why this order on the motion for temporary injunction is entered more than 17 months after the July 13, 2015 evidentiary hearing,” the judge wrote.

History of lawsuits

Fisheating Creek has a history of lawsuits.

Special to the Okeechobee News/USACOE. An alligator makes his way down Fisheating Creek to Cowbone Marsh, home to a variety of species.

Lykes Brothers acquired the land around Fisheating Creek in the early 1900s. In the 1980s, Lykes Brothers closed public access to its land along the creek and obstructed access to the creek by boats.

By 1989, Save Our Creeks challenged the Lykes Brothers authority to restrict public access. At issue was whether or not Fisheating Creek was considered a navigable waterway, in which case it was considered state property. A landmark 1998 state court decision ruled the stream navigable.

The case was appealed and in 1999, a settlement was reached. As part of the settlement, the state purchased approximately 18,000 acres along the stream, which became the Fisheating Creek Wildlife Management Area. The state also bought a conservation easement on more than 41,000 acres of Lykes Brothers land (known as the Fisheating Creek Expanded Corridor) and agreed to maintain a navigation channel in Fisheating Creek from Lake Okeechobee to Palmdale.

This agreement calls for aquatic weed control and removal as well as removal of fallen logs and obstructions. It does not authorize dredging.

Over the years, the Fisheating Creek channel within Cowbone Marsh had filled in with vegetation. After the FWC acquired the property, they hired a contractor to spray and then cut through the vegetation with a mechanical machine known as a “cookie-cutter.”

Special to the Okeechobee News/FDEP. This photo posted online by FDEP shows a view of the path cut through overgrown vegetation on Fisheating Creek by mechanical earth-moving machinery in 2010.

According to court documents, a cookie-cutter has two cutting wheels at the front of the vessel to shred and side cast vegetation. The cutting wheels also act as propellers to propel the cookie cutter forward.
In July 2010, before the work was completed, the Army Corps of Engineers (ACOE) Jacksonville District’s Regulatory Division issued a cease and desist order, claiming that the “cookie cutter” was not just cutting vegetation but had actually dug up part of the creek bed and had created a large channel resulting in increased water flow out of Cowbone Marsh, draining much of its 2,500 acres.

The matter was referred to the U.S. Environmental Protection Agency (EPA). Under the Clean Water Act, the ACOE regulates the discharge of many wetlands such as Cowbone Marsh.

In 2011, EPA ordered interim corrective action in an attempt to repair the damage. The state put in check dams and weirs to slow the flow of water while keeping the creek open to navigation. When this was deemed ineffective, the FWC proposed to refill the cut, using clean sand as fill.

In June 2012, FWC applied for a “minor modification” to the existing permits, seeking to backfill the area where the cookie-cutter cut a channel with approximately 27,000 cubic yards of sand.

On Oct. 2, 2012, Earthjustice, representing SOC and ECSF, challenged the permit change, stating that the proposed fill in much more than was accidentally removed and would block part of the waterway completely.

In July 2013, the court found in favor of the petitioners, SOC and the ECSF. The judge in that ruling pointed out that while the current depth of some areas is unnatural, due to the cookie-cutter work, the proposed backfilling would not restore the natural depths and would not maintain the navigability of the creek.

“Lykes Brothers has been using its political heft for years to try to keep the public from boating and fishing on the creek, and today we won,” said EarthJustice attorney Alisa Coe on July 5, 2013. “The plan to fill a 2-mile section of a stream with sand was just nuts. Florida boaters and sportsmen should not have to deal with the state trying to block them from the public waters we all have a right to use.”

Fisheating Creek is a tributary of Lake Okeechobee, accounting for approximately 9 percent of the water entering the lake.

According to court records, the backfilling plan would have cost the taxpayers approximately $3 million.
Latest court decision

In his Dec. 21, 2016, decision, Judge Bronson wrote that the agreement signed in 1997 is thorough and the intent of that agreement clear.

“The clear intent of the Agreement is to assure the navigability of the Creek throughout the life of the Agreement. The Lease provides it will end in March 2053,” the judge stated.

Under the agreement the plaintiffs gave up the ability to hunt and airboat in portions of the involved areas and the Trustees agreed to remove aquatic vegetation that occluded parts of the creek and to maintain it so that it is navigable.

The judge maintained that vessel passage must be suitable for both canoes and motorized vessels. He also found that the term “natural water levels” means water levels in the natural channel rather than levels in the high water season.

The FDEP plan to fill most of the channel with sand, leaving only a shallow depression, does not maintain the navigable waterway, the judge found. He further found that the FEDP plan to plant the depression with vegetation “contravenes the requirement to clear aquatic vegetation to facilitate the passage of small motorized vessels.”

The judge stated “It is the right of the public to navigate the Creek.”

The judge noted that Surveyor Jeffrey Cooner surveyed the natural channel underlying the aquatic vegetation in Cowbone Marsh upstream of where the “cookie cutter” stopped. He conducted his survey in an airboat and located the natural channel by following the digitized path surveyed by the official 1929 Corps of Engineers survey of the Creek basin. No evidence was submitted to suggest that the 1929 survey was in error, the judge wrote. Mr. Cooner surveyed the natural channel by probing through the vegetation to find the channel beneath it. His survey showed a natural channel with a bank varying from 35 to 45 feet and just under 3 to 4 feet in depth.

Special to the Okeechobee News/USACOE. This map of south Florida shows the location of the Kissimmee and Fisheating Creek Drainage Basins, the Okeechobee Waterway and the Everglades in relation to Lake Okeechobee.

In the course of conducting the survey, Mr. Cooner created an airboat trail that was approximately 8 feet wide and 1 foot deep in the center.

The judge stated that FWC did a survey after Mr. Cooner completed his survey.

“The FWC survey appears to have measured only the open water in the airboat trail left by Cooner, because it surveyed a depression of the same dimensions as an airboat trail,” the judge continued.

The court finds more credible the Cooner survey conclusion that the natural prism is just under 3 feet to 4 feet with a bank of 35 to 45 feet.”

The judge also found that the Agreement requires the channel width to be sufficient for the passage of motorized vehicles. He said the channel width must be wide enough for safe passage of Jon boats typically used on the Creek.

“The court finds credible the testimony of engineering expert Larry Fluty who testified that a channel width of 25 feet is necessary for two such boats to pass each other in opposite directions, to safely pass obstructions on the banks, and to provide a safe distance from the alligators commonly found on the banks.”

The judge’s ruling also found that the vegetation chopping project resulted in a net improvement to the ecosystem of Cowbone Marsh and had no hydrological effect on Lake Okeechobee.

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