Federal appeals court ruling could mean more polluted water for Southwest Florida

When water is pumped out of canals circling cane fields south of Lake Okeechobee back into the lake, it takes with it heavy doses of nutrients.

When the lake swells and flooding threatens, water is released into the Caloosahatchee River. Down the river comes not just the water but the nutrients that were pumped back into the lake.

So when an Atlanta federal appeals court recently overturned a 2007 decision by a Miami judge that the South Florida Water Management District needs Clean Water Act permits before the governing board approves back-pumping, it was not well-received.

“I think we need to be very conscious of what’s going on,” said Lee County Commissioner Tammy Hall. “This kind of thing will be ongoing until there’s more storage.”

The lawsuit dates back to 2002, when environmental groups and the Miccosukee Tribe sued. They claimed, and in 2007 a judge agreed, that the pumping of water back into the lake was “a discharge of pollutants” and therefore needed a National Pollution Discharge Elimination System permit.

The district claimed moving the water was necessary to the management of the lake and for flood prevention, and that water management efforts were never meant to trigger permitting requirements.

The Environmental Protection Agency sided with the district, adopting a rule in 2008 that declared all the waters of the nation one unit, ruling specifically that back-pumping did not require a permit.

The appeals court sided with the agencies, calling the National Pollution Discharge Elimination System rule so ambiguous there were legitimate arguments on both sides. Unless Congress overrides it, the court said, it must agree the EPA interpretation. Earthjustice plans to ask for a re-hearing.

Kurt Harclerode is a water resource specialist for Lee County. He said that at least now there are specific criteria the district must adhere to.

“The bottom line is until we get more storage there’s really not a whole lot that can be done,” he said. “There have been a lot of changes in the last decade or so. Back-pumping used to happen all the time.”

In fact Susan Sylvestre, operations manager for the district, said the ruling will not change how she decides if back-pumping is necessary.

“For me it doesn’t change anything,” she said.

The district did back-pump out of the Miami Canal for two days during May. On May 19 and 20 a single pump ran for 121⁄2 hours, and on May 21 it ran for nine hours.

“We had what they call an extra-tropical system stall right on top of us,” she said. “It was really amazing after six months of dry weather. We went from the driest six months on record to the wettest May on record.”

The rules adopted under the Northern Everglades Protection Act dictated how and when the pump was run, Sylvestre said.

Keith Rizzardi of the district counsel’s office said the district never thought it needed a permit, and the recent ruling confirmed that.

Rizzardi said that the district had applied for the National Pollution Discharge Elimination System permit, but when the ruling came out the application became moot.

Rae Ann Wessel of the Sanibel-Captiva Conservation Foundation called the ruling a real setback.

“I just came back from River Lobby Day in (Washington, D.C.) to get this last night,” she said Friday. “The point is this is contaminated water being back-pumped into people’s drinking water.”

Some east coast communities do get their drinking water from the lake.

Wessel said the root of the problem is the fact the lake was managed for decades to keep groundwater levels 18 inches below the surface in agricultural areas. She said she understands the district has a tough job, balancing flood protection and water supply demands with environmental protection.

“But if we have water problems during a drought now how are we going to handle it when we have 2 million more people?”

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