Florida environmental agency battles with group over manatees, sewage in federal court

The Florida Department of Environmental Protection and an environmental group are battling in a federal lawsuit about whether the state violated the Endangered Species Act because of sewage discharges into part of the Indian River Lagoon that is a key area for manatees.

Attorneys for the department and the group Bear Warriors United filed competing motions for summary judgment Friday in the lawsuit, which began in 2022.

Bear Warriors United contended in its filing that the department has not adequately regulated sewage-treatment plants and septic systems, leading to discharges that killed seagrass — a vital food source for manatees — in a northern stretch of the Indian River Lagoon. The filing said the department “has known for decades that the septic tanks and wastewater plants it authorizes release human nitrogen” that causes such problems as algae blooms in the lagoon.

“DEP thus authorizes the destruction of the lagoon’s ability to sustain seagrass and other macroalgae which are essential food sources for the manatees’ survival,” the group’s attorneys wrote. “As such, DEP’s regulatory regime for septic tanks and wastewater plants directly and indirectly results in the ongoing unlawful ‘take’ of manatees, in violation of (a section of the Endangered Species Act), and this court must issue an injunction requiring compliance with the ESA (Endangered Species Act) to prevent further take of manatees.”

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But in their motion, attorneys for the department said the state has taken a series of steps in recent years to try to reduce discharges into the lagoon and disputed that it has violated the Endangered Species Act. The motion said the department’s “actions are not the proximate c ause of any harm” to manatees, which are classified as a threatened species.

“The record shows that DEP has not authorized or entitled any party to cause a violation of water quality standards,” the state’s motion said. “It has, instead, worked diligently to restore an impaired water. There is no proximate cause. DEP is entitled to judgment as a matter of law because with no dispute of material fact, it has not violated the ESA.”

Florida had a record 1,100 manatee deaths in 2021, with many of the deaths linked to starvation because of a lack of seagrass. The largest number of deaths, 358, were in Brevard County, the focus of the lawsuit.

The state had 800 manatee deaths in 2022, before the number dropped to 555 in 2023, according to Florida Fish and Wildlife Conservation Commission data. As of May 31, a reported 315 manatees had died this year.

U.S. District Judge Carlos Mendoza has scheduled a November trial in the lawsuit. But if Mendoza grants either side’s motion for summary judgment, it would short-circuit the need for a trial.

The lawsuit involves part of the Indian River Lagoon from the Melbourne Causeway in Brevard County to Turnbull Creek in southern Volusia County. The Bear Warriors United filing Friday alleged that manatee “starvation and death from lack of food is a direct result of DEP’s regulatory regime for human wastewater and violates the ESA.”

But the department’s lawyers wrote, for example, that the agency only assumed oversight of a septic-tank regulation program in 2021. The program had been managed by the Florida Department of Health.

“Plaintiff cannot point to any instance where DEP’s supervision has been inadequate, or where any alleged omission in its supervision has caused harm to a protected species,” the state motion said. “To the contrary, DEP has presented record evidence showing that it has fully and diligently implemented its responsibilities after it assumed the … program.”

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