11th Circuit Court Denies Appeal of EPA Consent Decree Mandating Numeric Nutrient Criteria

On Wednesday, August 3, 2011, a three-judge panel of the United States Court of Appeal for the 11th Circuit denied the appeal field by the Florida Water Environment Association Utility Council (FWEA), which includes water and sewer systems from across Florida, and the South Florida Water Management District (SFWMD).  The appeal sought to reverse the consent decree entered in the case between environmental groups and the U.S. Environmental Protection Agency (EPA).

The consent decree, previously approved by a federal judge in Tallahassee, settled a suit filed by the Plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for Florida. The FWEA and SFWMD claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree.

The appellate court dismissed the appeal, holding that it did not have jurisdiction to hear the case, because the FWEA and SFWMD had not demonstrated a live case or controversy.  However, in a footnote, the court noted that had it reached the merits of the FWEA and SFWMD’s claims, their appeal would still fail.  A copy of the full opinion can be found here.

While this does represent a blow to the opponents of the EPA’s numeric nutrient criteria (NNC), the federal litigation challenging the NNC rulemaking continues to progress.  Further, FWEA and SFWMD representatives stated that they are weighing their options, including the possibility of requesting the full 11-member court to rehear the case.

Federal Appeals Court Denies Residents’ Attempt to Block Discharges from Lake Okeechobee

On June 30, 2011, the United States Court of Appeals for the Federal Circuit upheld the decision of the lower court to dismiss a complaint seeking to prevent further releases of fresh water from Lake Okeechobee to the St. Lucie estuary.  Appellants John R. Mildenberger, et al. sued the United States in the United States Court of Federal Claims.  The basis of their claims was that these fresh water releases resulted in an alleged taking of their riparian and upland property rights.  The case is Mildenberger v. United States, 06-CV-760, No. 2010-5084 (Fed. Cir. 2003).

The Plaintiffs are twenty-two individuals who own property along the St. Lucie River and one individual who owns land abutting the St. Lucie Canal.   They contend that for many years the release of lake-regulation discharges through the St. Lucie Canal causes serious damage to fishing and boating in the St. Lucie estuary.

On November 13, 2006, the Plaintiffs filed a complaint in the U.S. Court of Federal Claims seeking compensation of approximately fifty million dollars for the Government’s “intentional and repeated discharge of pollutants” into the St. Lucie River and estuary system.  The complaint alleges that releases of water from Lake Okeechobee by the U.S. Army Corps of Engineers took Plaintiffs’ “riparian right to use and enjoy the water in the St. Lucie River free from pollution,” including their rights to swim, boat, fish, and use the water for recreation.  Additionally, the complaint alleges that the Army Corps’ releases of large volumes of fresh water into the brackish water of the estuary “operate as a pollutant” because “[f]resh water releases destroy the delicate balance between salt and fresh water so critical to a tidal estuary.”

The Court of Federal Claims granted the Government’s motion to dismiss, ruling that Plaintiffs’ suit was filed outside the six-year statute of limitations applicable to claims for compensation under the Tucker Act, 28 U.S.C. § 1491.  The Court of Federal Claims also granted summary judgment for the Government on alternative grounds. The trial court first held that Plaintiffs’ alleged riparian rights of fishing, swimming, boating, and recreation were not compensable rights because those rights are held in common with the public.  Additionally, the court rejected Plaintiffs’ asserted right to observe wildlife as unsupported by any legal authority.

The Court of Appeals affirmed the decision of the lower court.  The appellate court held that Plaintiffs’ alleged takings claims were barred by the statute of limitations in 28 U.S.C. § 2501 and Plaintiffs failed to establish that Florida law recognizes compensable property interests in the riparian rights they allege were injured by the Government.

The full opinion of the case can be found here.