Federal judge rules Corps must change its ways when discharging Lake O water to Caloosahatchee, St. Lucie

Amy Bennett Williams
 
| Fort Myers News-Press

In a court order hailed as a landmark victory, a federal judge has ordered the U.S. Army Corps of Engineers to consider the environment when it releases water from Lake Okeechobee to the Caloosahatchee and St. Lucie rivers.

Judge Donald M. Middlebrooks’ ruling holds the Corps, which manages the lake and its attached, highly engineered plumbing system, accountable for its actions affecting endangered species and federally designated critical habitat.

Yet for reasons that have yet to be explained, the Corps will not comment on what the ruling will mean to its operations.

More: Army Corps reaching out for public input on Lake Okeechobee releases

The steps leading to his order began in 2018, after a disastrous spate of freshwater toxic cyanobacteria blooms in the lake and its tributaries, as well as a lingering saltwater red tide offshore. Three environmental nonprofits – the Center for Biological Diversity, Calusa Waterkeeper and Waterkeeper Alliance – filed suit against four federal agencies: the Corps, the Department of the Interior, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. 

Earlier this year, Middlebrooks ruled the Corps violated the federal Endangered Species Act by failing to assess the harm the polluted lake water cause to protected species like manatees, wood storks and sea turtles.

On Monday, Middlebrooks ordered the Corps to change its ways, issuing a seven-page order outlining the steps the agencies must take going forward. It’s “an important legal victory for the communities and wildlife repeatedly harmed by the Corps’ toxic discharges,” says attorney Jaclyn Lopez, the nonprofit Center for Biological Diversity’s Florida director.

One major point of contention remains, however: The plaintiffs say the matter is settled. The Feds disagree.

When The News-Press called to ask how the agreement would affect day-to-day operations, Corps spokeswoman Erika Skolte said its Office of Counsel directed her not to comment, instead referring The News-Press to the U.S. Department of Justice.

Asked the same question, deputy spokesperson Danielle M. Nichols emailed a single-sentence reply:  “Due to ongoing litigation, we also cannot comment.”

Lopez said she doesn’t know how that could be.

More: Corps pushes ahead with lake release modifications, lawsuit still in play

“Typically, in America, when a judge issues an order, unless you intend to appeal it, that’s the law.”

An email to the DOJ asking for clarification and whether the Corps intends to appeal was not immediately answered.

According to the judge’s order, going forward, the Corps will have to:

  • Consider the effects of its lake operations on blue-green algae and red tide and the effect of the resulting harmful algal blooms on species and habitats protected under the Endangered Species Act;
  • Analyze the best available information on hydrology, nutrients, water management and climate on harmful algal blooms in Lake Okeechobee and the Caloosahatchee and St. Lucie estuaries; and
  • Review and post on its website the most recent water-quality monitoring data for red tide and blue-green algae, field monitoring data and information on seagrasses impacted by LORS, and monitoring information on the abundance, distribution and movement of manatees in Lake Okeechobee, the Caloosahatchee and St. Lucie rivers and estuaries. LORS stands for Lake Okeechobee Regulation Schedule.

Geographically, the ruling encompasses “The lake, the rivers, the estuaries (and) the barrier islands,” Lopez said.

Calusa Waterkeeper John Cassani said his nonprofit is proud to have been part of this action and encouraged by the outcome, which he said will help sustain the region’s water quality-dependent economy, which relies on tourism and property values.

“While significant work remains to address the dreadful impacts to water quality and communities from polluted Lake Okeechobee releases into Florida’s rivers and estuaries, we are pleased that the federal government must now reconsider how years of these discharges have harmed endangered and threatened species,” wrote Daniel E. Estrin in a statement.

Estrin is general counsel and advocacy director at Waterkeeper Alliance, which joined Calusa Waterkeeper and the Center for Biological Diversity in the suit. “Adjustments to release practices that the Army Corps adopted after we filed our lawsuit appear to be helping, and we expect the Corps to manage necessary future releases to minimize the frequency, duration and magnitude of toxic cyanobacteria and red tide blooms.”

The Sanibel-Captiva Conservation Foundation also called the ruling important for the ecological health of the Caloosahatchee estuary and Charlotte Harbor.

“This ruling could have significant implications on how freshwater discharges from Lake Okeechobee are managed in the future,” said James Evans, environmental policy director. “Florida’s natural systems often get the short end of the stick when it comes to water management decisions. In this case, we are pleased to see that the laws designed to protect our rare and endangered species have been upheld.”

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