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Appeals Court Rejects Caloosahatchee Water Case

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
p1 lawyer
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

A federal appeals court Monday rejected a lawsuit alleging that the U.S. Army Corps of Engineers’ management of water flowing from Lake Okeechobee into the Caloosahatchee River caused pollution problems in the Southwest Florida waterway.

A three-judge panel of the Atlanta-based appeals court, in a case described in one document as a “procedural thicket,” upheld a lower court decision to dismiss the lawsuit filed by the Florida Wildlife Federation, the Environmental Confederation of Southwest Florida and the Conservancy of Southwest Florida.

The environmental groups alleged violations of the federal Clean Water Act because of Army Corps decisions about releasing water from Lake Okeechobee into the Caloosahatchee through a series of locks.

“In essence, the complaint contended that the Corps’ operation of the dams at issue at very low water stages is done in a manner that aggravates salt water intrusion and triggers toxic algae outbreaks, both of which contravene state water pollution abatement regulations,” the environmental groups said in a brief filed in the appeals court.

But the appeals court, in the 30-page opinion Monday, said the case should be dismissed because the South Florida Water Management District was not properly included in the case. The court described the water management district, which works with the Army Corps on water issues in the region, as an “indispensable party.”

“Here, the conservationists ultimately seek to effect change in the way decisions are made about water control in the waterway,” said Monday’s ruling, written by Judge Robin Rosenbaum and joined by judges Gerald Tjoflat and Jane Restani. “Leaving out a major player that bears responsibility for making and implementing such decisions would deprive the process of its adequacy towards that end.”

The ruling said the environmental groups argued that the Army Corps was liable under the federal Clean Water Act for violating state water regulations and a state law known as the Florida Water Resources Act. It said the environmental groups contended that Army Corps decisions to keep locks closed during periods of low water caused violations of state water-quality standards in the Caloosahatchee.

“Because of the way the conservationists have framed the Corps’ alleged transgressions — as violations of the Clean Water Act only because they violate Florida water regulations and Florida’s Water Resources Act — this case is fundamentally about Florida’s protection of its own natural resources,” the ruling said.

The appeals court provided a detailed explanation of the Okeechobee Waterway, which, through the Caloosahatchee and other water bodies, links the Atlantic Coast and the Gulf of Mexico. It said the case focused on the Army Corps’ management of three locks that help control water flow in the Caloosahatchee.

It said the Caloosahatchee suffered from algae blooms in eight years between 2011 and 2012.

“Florida suffers from a Goldilocks problem when it comes to water in the (Okeechobee) Waterway: too much or too little results in serious consequences,” the ruling said. “The waters in the (Okeechobee) Waterway are healthiest and most useful when they fall within a range that is just right.”