Climate of Our Future

“Back pumping” polluted water into Okeechobee can continue without Clean Water Act permits

June 4, 2009

Aerial photograph of pumping station S-2 with Lake Okeechobee in the background. Photo: South Florida Water Management District

Tallahassee, FL – Even though a federal judge ruled in 2007 that “back pumping” polluted water from drainage canals into South Florida’s Lake Okeechobee creates toxic byproducts that threaten public health, U.S. Court of Appeals for the Eleventh Circuit ruled today that the practice can continue without Clean Water Act permits.

“This is the exact opposite interpretation than that reached by the Second Circuit Court of Appeal only two years ago. Further consideration by the whole appeals court panel seems appropriate,” said Earthjustice attorney David Guest.

Earthjustice plans to file for an en banc rehearing, which would be heard by a panel of judges.

“The public’s right to clean public waters is at stake here,” Guest said. “Lake Okeechobee is being treated like Big Agriculture’s private sewer, and the public shouldn’t stand for it.”

The South Florida Water Management District has contended for years that its controversial pumping practice should be exempt from the Clean Water Act.

Today’s ruling comes after a legal battle stretching back more than seven years. The Florida Wildlife Federation and other groups filed a legal challenge against pumping into Lake Okeechobee in 2002, and won when U.S. District Judge Cecilia M. Altonaga found after a two month trial that the pumping creates a significant risk of triggering toxic algae blooms that can threaten human health and harm wildlife. The pumps at issue inject a plume of dark-colored polluted water into Lake Okeechobee which is used for drinking water. The flow rate of the pumps is similar to that of a medium-size river and affects a zone of the lake encompassing fourteen kilometers out from the pumps. The court issued an injunction, requiring the SFWMD to immediately apply for federal Clean Water Act permits if it planned to pump any more dirty water into the lake.

Instead of complying and cleaning up the lake, the District and Department of Environmental Protection Secretary Michael Sole chose to spend tax dollars fighting for the right to keep polluting. They argued that they shouldn’t have to have Clean Water Act permits to pump dirty agricultural runoff back into public waters.

The U.S. Environmental Protection Agency, under former president George W. Bush, also sided with polluters, adopting a last-minute administrative rule that says Clean Water Act permits for such polluting water pumping are unnecessary.

“This ruling is a backward step,” said Manley Fuller, president of the Florida Wildlife Federation. “We plan to keep the pressure on polluters. One day we hope to have a clean Lake Okeechobee that everyone can enjoy.”