On August 1, 2019, U.S. Sugar Corporation filed suit in federal court against the U.S. Army Corps of Engineers (Corps) asking the court to order the Corps to stop discharges from Lake Okeechobee that lower the lake below the water levels established in the 2008 Lake Okeechobee Regulation Schedule (LORS 2008).
The lawsuit alleges that the Corps did not prepare a new Environmental Impact Statement evaluating the potential impacts of a lake level operating schedule lower than the one established in 2008. As a consequence, the Corps has allegedly violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA).
Lake Okeechobee’s operation schedule has been under scrutiny for decades. Environmental advocacy groups, and most recently, Governor DeSantis have raised concerns about discharges to the Caloosahatchee estuary to the west, and the St. Lucie estuary to the east. In January 2019, the Corps announced that LORS is being reviewed to coincide with the completion of the Herbert Hoover Dike Rehabilitation Project in 2022. The USACE announced the LORS study with the stated goal to “re-examine the opportunities to balance the project purposes for flood control, water supply, recreation, navigation and environmental effects to fish and wildlife, cultural and recreational resources.”
During the 2016-2018 timeframe (including Hurricane Irma in 2017), South Florida experienced extremely wet conditions – resulting in high volume discharges from the Lake to the east and west coast estuaries. Following these discharges, several environmental groups and Congressman Brian Mast urged the Corps to lower Lake Okeechobee to 10.5 feet in the dry season – lower than the desired 12.5 to 15.5 foot range set by the 2008 regulation schedule. In November 2018 the Corps began lowering water levels, claiming that authority to do so existed under their “additional operational flexibility.” The Corps has continued to release water from the lake since that time resulting in a Lake Okeechobee water level of approximately 11.65 feet on or around July 2019, well below the established range.
Concerns with lower water levels in Lake Okeechobee include:
- Water shortages during the winter dry season
- Insufficient water to maintain normal operation of south Florida’s water management system to recharge Southeast Florida wellfields that provide water
to roughly 6 million people
- Risk to coastal wellfields affected by saltwater intrusion when there is not enough water to recharge to the Biscayne Aquifer
- Risk of not enough water to supply existing legal water users including public water supply, farming, golf courses, nurseries, landscaping and other uses
- Ecological impacts including impacts to threatened and endangered species
- Impacts to navigation
The filing of this lawsuit signals a new era in water supply policy and management in South Florida. Historically, the Corps has deferred to the South Florida Water Management District (SFWMD) on Lake Okeechobee operations affecting water supply. SFWMD has traditionally served as the primary advocate for the protection of existing legal users and future water supply. Now, it appears this is changing and the court system will play a more significant role in solving the water supply puzzle. A number of interested parties and advocacy groups have commented on all sides of the issues. Some of these parties may intervene in this lawsuit and may also undertake federal and state agency lobbying efforts. Local government utilities that rely on the south Florida water management system for wellfield recharge should actively engage in this legal process to protect south Florida’s drinking water supply and utility investments.
JOHN FUMERO is board certified in State and Federal Government and Administrative Practice by The Florida Bar, and is AV Preeminent rated by Martindale-Hubbell, the highest rating an attorney can earn from their peers. He has practiced law for over 30 years. He formerly served as an attorney with United States Department of Justice, Environment & Natural Resources
Division, and as the General Counsel of the South Florida Water Management. Fumero provides strategic legal counsel and representation to public and private sector clients throughout the State of Florida before US Army Corps of Engineers, the Florida Department of Environmental Protection and the water management districts. His practice entails all aspects of environmental, landuse, administrative, governmental, and real estate law, as well as governmental affairs representation and litigation related to those practice areas. He is also a Florida Supreme Court-certified mediator, and holds a certification in Environmental Negotiation and Policy from Harvard Law School.
CARLYN KOWALSKY has been practicing water and environmental law for over 33 years. She was most recently Deputy General Counsel for the South Florida Water Management District and was also an attorney with the Southwest Florida Water Management District earlier in her career. She has handled a broad range of matters throughout the state of Florida with the US Army Corps
of Engineers, the Florida Department of Environmental Protection, and the water management districts. Prior to her tenure at the SFWMD, Carlyn served for 11 years as counsel for Florida’s largest investor-owned utility, Florida Water Services, which operated in 27 counties across Florida.