A legal battle over water in South Florida reached the 11th U.S. Circuit Court of Appeals on Nov. 20, with three major sugar companies opposing parts of the state’s Everglades restoration efforts.
The companies—U.S. Sugar, the Okeelanta Corporation, and the Sugar Cane Growers Cooperative of Florida—presented their case in Atlanta with attorney Paul Clement representing them.
They contended that the U.S. Army Corps of Engineers’ management of two Comprehensive Everglades Restoration Plan initiatives violates a longstanding law and would lead to a continual loss of a significant volume of fresh water in Lake Okeechobee, which they depend on and have rights to access.
This situation could elevate the risk of drought for agricultural and urban users.
The corps argued that it was following the law and that the companies lacked clear evidence to support their claims of losses.
“The claimed injury by the plaintiffs doesn’t align with the relief they are seeking,” stated defense counsel Arielle Mourrain Jeffries.
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“They profess a desire for enhanced water protection, yet they are asking this court to reject the approval of a project that would add 78 billion gallons of new water.
A victory for the plaintiffs would mean that no one benefits from the project.”
The judges had not reached a decision at the time of this article’s publication.
The focal points of the legal dispute are the Everglades Agricultural Area (EAA) Reservoir, under construction by the corps, and a stormwater treatment area (STA), constructed by the South Florida Water Management District.
Their aim is to channel increased volumes of cleaner water into the state’s northern estuaries and south through the Everglades to enhance water quality and restore those ecosystems.
The law in question is the Water Resources Development Act of 2000 and its “savings clause,” which established a base water quantity in the heavily regulated Okeechobee and ensured that no lawful water sources could be relocated unless a new source of comparable quality and quantity was available to replace the lost amount.
“Our interpretation of the savings clause is essentially an enforcement mechanism,” asserted Clement to the judges.
The STA, subject to corps’ approval, could be operational by 2025, four years before the EAA, which is intended to store water for agricultural purposes.
However, Clement argued that the independent operation of the STA would cause an instant loss of 160,000 acre-feet of water, without a solution for replenishment.
Moreover, he contended that the corps owed his clients water since implementing a project in 2008 that lowered Okeechobee levels due to structural problems with the Herbert Hoover Dike.
Thus, the corps would not only need to provide a resolution for the STA before any water loss is evident from its operations but also restore the available base water quantities to December 2000 levels before the reduction occurred.
While the plaintiffs concede that surface levels may not wholly reflect the base change, they estimate a loss of around 500,000 acre-feet of water sources.
Jeffries argued that the plaintiffs lacked standing in relation to the 500,000 acre-feet.
She also maintained that their interpretation of the savings clause, demanding an anticipatory replacement solution, “would prioritize agricultural needs over ecosystem restoration.”
“If there was a provision requiring the board to first prioritize constructing an insurance policy for the industry before delivering ecosystem benefits, the exception would essentially nullify the rule,” she added.
In the district court, the corps indicated that they hadn’t yet approved the independent operation of the STA.
District Judge Donald Middlebrooks ruled in favor of the corps in May 2023, affirming that the 2008 baseline complied with the savings clause, which would only be activated upon direct water loss from the STA and EAA.
He also deemed the companies’ claim of being owed 500,000 acre-feet of water as “absurd.”
The appellate judges Lanier Anderson, Kevin Newsom, and Jill Pryor posed several questions to both parties.
Anderson referred to the absurdity and unfeasibility mentioned in Middlebrooks’ ruling regarding the return of 500,000 acre-feet of water.
Both Anderson and Newsom inquired about the future activation of the savings clause and when the corps would be obligated to replace the lost water from their projects.
