Lawsuit over Lake O nears end

Environmentalists are suing over the way the South Florida Water Management District transports polluted water into Lake Okeechobee

By Kate Spinner

Friday, April 7, 2006

MIAMI — Environmental attorneys said South Florida water managers are violating federal law by pumping dirty water from irrigation canals into Lake Okeechobee. Attorneys for the water managers said environmental groups are misinterpreting the law.

Thursday marked the first day of closing arguments in a federal case that began four years ago, when Friends of the Everglades and Fishermen Against Destruction of the Environment sued the South Florida Water Management District over the way it transports polluted water into Lake Okeechobee.

The trial began in January before U.S. District Court Judge Cecilia M. Altonaga. The final court date is scheduled for April 19 at 9 a.m.

In the rainy season, the municipalities and sugar farms south of Lake Okeechobee become inundated with water. To keep the area from flooding and to keep from polluting the Everglades, the district uses large pumps on three major canals to suck the water uphill into the lake.

Because the water is full of phosphorus and nitrogen from farms and urban runoff, it is far from clean. Phosphorus and nitrogen cause algae blooms and promote the growth of invasive plants.

David Guest, attorney for the Florida Wildlife Federation, an additional party to the suit, told the judge that the district is violating the Clean Water Act because it needs a federal permit to move that dirty water into the lake against the natural flow of gravity.

“We are pumping a 425-square-mile watershed, that was never part of the Lake Okeechobee watershed, into the lake,” Guest said. Since 1969, environmental scientists have agreed that pumping water from the agricultural areas into the lake causes pollution problems, he said. He added that past court decisions ordered the district to resort to backpumping only in emergency situations.

Attorney James Nutt, representing the water managment district, said the district is already following federal Clean Water Act laws by spending billions of dollars on environmental restoration projects that eventually will make the lake clean. Once those restoration projects are complete, he said, backpumping will become a thing of the past, for the most part.

The arguments are steeped in complicated acronyms and brain-numbing semantics. Environmentalists want the district to have a NPDES and the district says it’s already spending billions to meet its TMDL.

The National Pollutant Discharge Elimination System is a set of federal permits that regulate pollution from obvious sources, called point sources. A point source would be wasterwater from a sewer treatment plant or a chemical factory that discharges into a river or a lake. If that source of pollution dumps into a waterway that people use for boating, the polluter needs the federal permit.

Total Maximum Daily Loads are federally mandated standards, which are set by state governments, on how much of an array of pollutants can enter a water body from various unidentified sources. In Lake Okeechobee, for example, the TMDL for phosphorus is 140 metric tons a year. About 950 metric tons flowed into the lake between May 1, 2004, and April 30, 2005, from sources such as the Kissimmee River, Fisheating Creek, Nubbin Slough and the back-pumped canals to the south.

Guest said the district needs a federal permit for point-source pollution because the canals are obvious contributors to pollution in Lake Okeechobee. He also said water south of the lake did not flow north historically, except during rare and extreme droughts.

Nutt argued the canals are better regulated under the TMDL laws because they are non-point pollution sources.

He said the district moves water in and out of the canals, but does not introduce new pollutants into the water. He likened the transfer of water to moving money from checking to savings, rather than depositing a brand new paycheck.

In furthering that argument, Nutt spent about a half-hour dissecting the Clean Water Act’s definitition for pollutant discharge, which is, “Any addition of any pollutant to navigable waters from any point source.”

Nutt said Congress intentionally left out a modifier before navigable, so that the definition means all navigable waters as a whole. If the canals and the lake are part of the same navigable waters of the United States, moving pollution between them doesn’t meet the definition of discharge, he argued.

He did not deny the polluted water harms Lake Okeechobee.

“Moving water among water bodies is a problem throughout the country,” Nutt said. “This is not to say adding polution to an individual water body is no big deal.”

After plodding through about a quarter of his arguments Thursday, Nutt said the demands environmentalists are making will disrupt the district’s progress in fixing the lake so that it meets clean water standards.

“We’re spending millions going down this one pathway and they want to put us on a different highway,” Nutt said.

Nicolas Gutierrez, a member of the water management district’s governing board, said being forced to get the pollution permit would direct resources away from the $11 billion in Everglades restoration projects that are already in the works.

“Every time we would be moving water from one part of our district to another, we would have to apply for this very cumbersome permit,” Gutierrez said during a telephone interview Wednesday afternoon. “We’d much rather be spending money on building new structures to help clean up the water quality in this area.”

Gutierrez, also an attorney with ties to the Cuban sugar and tobacco industries, said losing the case could cause other financially disasterous consequences. If the district needs a permit to pump water into the lake from the southern canals, the district might also need permits to release lake water to the Caloosahatchee and St. Lucie estuaries, he said.

“That’s the dangerous, slippery slope of an adverse decision here,” he warned.

Guest said the results of the case probably would not apply to the district’s practice of releasing water to the Caloosahatchee because water flows by the force of gravity to the Gulf and the river historically received lake water during periods of extremely wet weather.

Guest also questioned the district’s insistence that the federal pollution permit would add significant cost to the district’s operations.

Nutt and Gutierrez said they didn’t know how much obtaining the permit and abiding by its mandates would cost.

Nutt said the pollution permit is meant to restrict water flow to reduce pollution discharge. That runs counter to the district’s purpose, he said.

“Our whole job is to move water, to get water to flow,” Nutt said.

© 2006 Naples Daily News and NDN Productions. Published in Naples, Florida, USA by the E.W. Scripps Co.