Corps sued over lake releases

Posted 8/2/19

CLEWISTON — U.S. Sugar filed a lawsuit in federal district court on Thursday against the U.S. Army Corps of Engineers alleging the corps’ “complete disregard of its own policies and procedures …

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Corps sued over lake releases


CLEWISTON — U.S. Sugar filed a lawsuit in federal district court on Thursday against the U.S. Army Corps of Engineers alleging the corps’ “complete disregard of its own policies and procedures governing Lake Okeechobee.”

“Since November of 2018, the corps has released unprecedented volumes of water from Lake Okeechobee, and as a result they’ve recently driven the lake into the water shortage band (which requires the South Florida Water Management District to implement water shortage policies) during the rainy season,” said Judy Sanchez, senior director of corporate communications public affairs.

“At low lake levels (13 feet and below), the LORS 2008 schedule instructs the corps to hold water,” Ms. Sanchez said. “By releasing water without preparing a new or updated Environmental Impact Statement (EIS) and analyzing the full impacts of that release of water on the lake, the people, and the downstream systems that rely upon its water, the Corps of Engineers has broken its own regulations and violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act.”

Adopted in 2008 as the temporary schedule for managing Lake Okeechobee while the Herbert Hoover Dike was stabilized, the Lake Okeechobee Regulation Schedule was developed over a very transparent, multi-year process, she explained. It had extensive input from hundreds, if not thousands of different stakeholders from scientists, fishermen, farmers, urban municipalities, lakeside communities, utilities, tribal leaders, environmental organizations, elected and appointed officials and others. 

“It’s not often that farmers join these types of groups in litigation, but when an agency goes rogue and puts Lake Okeechobee and important water resources at risk, we agree the courts need to take control.” Ms. Sanchez said.

The lawsuit states: “Wellfields for numerous municipalities along the lower east coast of Florida, including those located in Miami-Dade County, Broward County and Palm Beach County, depend on water from the lake so they can provide water to residents and businesses, and the canals filled by the lake provide water to hundreds of thousands of acres of farmland across south Florida.”

The suit alleges: “The corps’ draining of the lake below the Water Shortage Band and the resulting man-made drought has ‘significantly’ and adversely affected the quality of the human environment and will continue to do so.

“These harmful effects include:

“a. a significant impact on public health and safety including negative effects on navigation and hurricane evacuation routes and safety threats to boaters getting stranded in a low lake;
“b. a threat of peat fires and saltwater intrusion from a low lake as a result of the unique characteristics of the geographic area;
“c. highly controversial effects, including wasting water, as evidenced by the many public comments the corps received in public workshops requesting they not lower the lake;
“d. uncertain, unique, and unknown risks arising from not knowing how low the lake level will fall;
“e. setting a harmful precedent of the corps operating outside of the 2008 Regulation Schedule for months at a time;
“f. the effects on cultural and historic resources were not analyzed;
“ g. the adverse impacts on threatened and endangered species in that the endangered Everglades snail kite, for which the lake is its critical habitat, and nesting has been virtually eliminated on the lake this year, unlike last year where the Everglades snail kite nested approximately 161 times when water levels were in the normal range; and
“h. jeopardizing state law environmental protections because the corps’ actions could trigger a violation of the state��s law (lake minimum flows and levels (“MFL”)) on how low the lake can go if the lake remains below 11 feet for more than 80 days.

“By draining the lake in violation of the 2008 Regulation Schedule, the corps has, in effect, impermissibly created and implemented a new and rogue lake regulation schedule, without preparing a new EIS, which is required to provide a robust analysis of the effects of the Corps’ actions.”

The defendants in the lawsuit include Lt. Gen. Todd T. Semonite, commanding general and chief of engineers for the United States Army Corps of Engineers; Col. Andrew Kelly, the commanding district engineer for the United States Army Corps of Engineers, Jacksonville District: and the U.S. Army Corps of Engineers.

The corps also faces a lawsuit from the Center for Biological Diversity, Calusa Waterkeeper and Waterkeeper Alliance.

That complaint, filed June 11, in the United States District Court Southern District of Florida Fort Pierce Division, is titled “Environmental Groups Charged Federal Agencies with Ongoing Failure to Consider Information on Climate Change Impacts on Lake Okeechobee and Downstream Waters.” Three environmental organizations filed a lawsuit in the federal district court for the Southern District of Florida asserting that the federal defendants were violating the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA) by allowing “unmitigated releases of Lake Okeechobee water into the Caloosahatchee and St. Lucie rivers and estuaries.” The plaintiffs alleged, among other things, that past analyses of the Lake Okeechobee Regulation Schedule (LORS 2008) “entirely failed to consider how climate change might affect LORS and harmful algal blooms.” They asserted that the U.S. Army Corps of Engineers was violating NEPA by failing to supplement its LORS NEPA analysis with “significant new information” regarding climate change impacts and toxic algae. They also asserted that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service were violating the ESA and the APA by failing to consider climate change effects.

In addition to the corps, defendants named in the lawsuit include Col. Andrew Kelly, the U.S. Department of the Interior, David Bernhardt, the National Marine Fisheries Service, Dr. Roy E. Crabtree, the U.S. Fish and Wildlife Service, and Margaret Everson.

The lawsuit alleges that releases from Lake Okeechobee are a “major contributor” to both harmful algae blooms in the Caloosahatchee River and to red tide in the Gulf of Mexico.