THE MIAMI HERALD, Tue, Dec. 12, 2006 




Judge faults water district for Lake Okeechobee muck


In a case with national implications, a federal judge found state water managers in violation of the Clean Water Act for pumping polluted runoff into Lake Okeechobee.




A Miami federal judge on Monday found South Florida water managers in violation of U.S. water quality standards for pumping billions of gallons of polluted runoff from sugar farms into Lake Okeechobee without a federal permit.


U.S. District Judge Cecilia Altonaga rejected an array of defense arguments from the South Florida Water Management District, including that a permit wasn't needed because the state agency wasn't the source of the tainted water, but was simply moving it between two similar places -- the giant lake and the drainage canals crisscrossing the vast farming area to the southeast.


The judge, in a 107-page ruling, found the district's legal positions and long-controversial practice of backpumping ran afoul of the ''unambiguous'' congressional intent in crafting the Clean Water Act to reduce pollution in U.S. waters.


''In the absence of an extraordinary event, backpumping is the primary means by which pollutants from one body of water (the canals) enter another, distinct body of water (the lake),'' wrote Altonaga.




The decision was a clear victory for environmental groups and the Miccosukee Tribe, which for decades has warned that backpumping water containing phosphorous, pesticides and other farm chemicals had harmed fish and wildlife, triggered massive algae blooms and compromised drinking water quality, particularly in small towns such as Pahokee and South Bay that draw directly from the lake.


Altonaga ordered more hearings to decide what to do next, but added a caution that a federal permit would not necessarily ``solve these problems or even substantially contribute to a solution. . . . The problems facing Lake Okeechobee and the Everglades are far from simple.''


Still, environmentalists embraced it as a critical step toward cleaning up the lake, a wildlife haven and renowned bass-fishing destination that is ailing under its additional roles as a flood-control basin and water-storage reservoir for farms, cities and suburbs.


''It's going to require people to roll up their sleeves and work together to find common solutions,'' said David Guest, an attorney for Earthjustice, which represented the Florida Wildlife Federation, one of the plaintiffs in the case. The federation joined the Friends of the Everglades and Miccosukees in filing the 2002 lawsuit.


In a written response, state water managers called the ruling ''troubling,'' saying obtaining federal permits for three giant pumping stations on the lake's southern shore would complicate the ability to make critical decisions. While most of the water and pollution in the lake flows from the north, the district has periodically backpumped since the 1970s to control flooding in the Everglades Agricultural Area and, in some cases, to supplement the lake during droughts.




Nicolās Gutierrez, a Miami attorney and member of the district's governing board, warned the process would also siphon time and money from other efforts, including the $11 billion state-federal Everglades restoration effort.


''We respect the court's decision; however, we are disappointed with the ruling,'' said Gutierrez in the statement. ``Not only will it hamper our ability to routinely move water for the benefit of the public, it has the very real potential of slowing our positive progress on restoring America's Everglades.''


The ruling also could have national implications, both on a similar pending federal case involving another giant pump in western Broward County, the S-9, and on a rule the U.S. Environmental Protection Agency proposed in June to exempt such ''water transfers,'' which was crafted in direct response to the Florida legal challenges.


The EPA has defended the rule, introduced after arguments in the case had been concluded, as a way of clarifying ambiguity in the Clean Water Act about water transfers.


The agency, which supported the district in the lawsuit, also said it would eliminate red tape and allow states to maintain control of water movements and allocations. Both Florida cases have been closely watched nationally, particularly in Western states, where such transfers are common.


But Guest and David Reiner, president of the Friends of the Everglades, called the EPA effort nothing more than an attempt to end-run around a federal judge.


If so, Altonaga blocked the move, specifically rejecting the EPA interpretation as counter to what Congress wanted.


''That puts a dagger into the heart of the rule,'' Guest said.




The judge dismissed arguments that a federal permit would interfere with a state's rights to allocate water and that it prove ''prohibitively'' expensive, citing one state, Pennsylvania, that already requires them.


A permit wouldn't necessarily halt all backpumping but environmentalists intend to argue it would impose limits and force the district to find options for moving, treating or storing flood waters, including in reservoirs already under construction.


Altonaga also tackled an unresolved question raised by the U.S. Supreme Court two years ago when it sent a similar case back for new hearings involving the S-9 pump in western Broward -- whether there was a ''meaningful difference'' between where the pump draws from and where it spills into, the canal system south of Weston and a water conservation area that is consider part of the natural Everglades.