Indian Riverkeeper Files for Preliminary Injunction, asks court to stop the Lake Tohopekaliga (Lake Toho) Drawdown and resultant discharges into St. Lucie and Indian River Lagoon Estuaries

For Immediate Release

Contact: Kevin Stinnette, Indian Riverkeeper (772) 336-7284, (772) 283-8747

West Palm Beach – Indian Riverkeeper has requested a preliminary injunction precluding the Corps of Engineers (“Corps”) from implementing its decision to conduct an extreme drawdown of Lake Tohopekaliga (“Lake Toho”) in Osceola County, Florida at this time.

Indian Riverkeeper filed suit against the U. S. Army Corps of Engineers (the Corps) in order to protect the St. Lucie Estuary and the Indian River Lagoon from extended discharges from Lake Okeechobee and the waters that feed into it.

The motion, filed yesterday in West Palm Beach, characterizes the situation facing the St. Lucie River and Indian River Lagoon estuaries. It says, “Lowering the water level in Lake Toho now will exacerbate the emergency situation downstream in Lake Okeechobee, where the Corps already has been releasing high volumes of polluted freshwater into the marine environment of the St. Lucie River Estuary and Indian River Lagoon System.”

The lawsuit, filed in late October, challenges the Corps’ decision to undertake the extreme drawdown of Lake Tohopekaliga during a period of high water elevations in Lake Okeechobee and extended damaging releases of polluted freshwater from Lake Okeechobee into the estuarine and marine environment. The Corps failed to assess the ecological and economic impacts of extended releases this season, including those on both Lake Okeechobee and the estuaries into which the discharges will be sent.

The Army Corps of Engineers reported the lowering of Lake Toho by .79 feet on Tuesday, prompting the Indian Riverkeeper to file the injunction request. “Our analysis indicates that they have dumped much more water into Lake Okeechobee than the regulation schedule allows,” said Kevin Stinnette, the Indian Riverkeeper. “We want storage in the Kissimmee Basin so that Lake Okeechobee and the estuaries can recover.”

Charles Grande, president of the Indian Riverkeeper board of Directors echoed the sentiments of many Treasure Coast residents, “We hear them say they will release the water to Lake Okeechobee and then keep it out of the estuaries. They don’t send water south because the agricultural interests fill the water conservation areas. It seems clear that water into Lake Okeechobee is water out into the estuaries. We are the ones who get dumped on.”

Dr. Paul Gray, employed by Audubon, provided an affidavit explaining the negative impacts the scheduled drawdown would have on Lake Okeechobee and the coastal estuaries. “We need to find out why they are not following their regulation schedule for Lake Kissimmee,“ he said, “the management of the Kissimmee Chain and River doesn't make sense right now.”

The injunction request asks that the Corps is “…enjoined from permitting or undertaking the proposed extreme drawdown of Lake Tohopekaliga (“Lake Toho”) in Osceola County, Florida and are further enjoined from releasing water from the Upper Kissimmee Chain of Lakes in furtherance of the extreme drawdown of Lake Toho beyond the minimum releases necessary to maintain instream flows in the Kissimmee River.”

Indian Riverkeeper is determined to see the Corps work to maximize storage capacity for water flowing into Lake Okeechobee in order to protect the lake and coastal estuaries. The conduct of the Lake Toho drawdown at a time when water levels in Lake Okeechobee are dangerously high is not consistent with measures needed to protect the environment.
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Indian Riverkeeper’s mission is to protect and restore the waters of North America’s most diverse estuary, the Indian River Lagoon and its watershed, fisheries and habitats, through advocacy, enforcement and citizen action, and is the licensed Riverkeeper® for Florida’s Treasure Coast. Visit www.indianriverkeeper.org .

Indian Riverkeeper is represented by John Andrew Fritschie, Attorney at Law, 1822 Lamont Street, NW, Washington, DC 20010, 202-265-0370, and by Lisa Interlandi, Regional Counsel, Environmental & Land Use Law Center, Inc., 224 Datura Street, Suite 201, West Palm Beach, Florida, 33401, Phone: 561-653-0040

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

THE INDIAN RIVERKEEPER, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, and RANDAL R. CASTRO, Brigadier General, Division Engineer, South Atlantic Division, Defendants

9:03-CV-81003 MIDDLEBROOKS

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (Hearing Requested)

Plaintiff hereby moves for a preliminary injunction precluding the Corps of Engineers (“Corps”) from implementing its decision to conduct an extreme drawdown of Lake Tohopekaliga (“Lake Toho”) in Osceola County, Florida at this time, the end of the wet season of an above average rainfall year. Lowering the water level in Lake Toho now will exacerbate the emergency situation downstream in Lake Okeechobee, where the Corps already has been releasing high volumes of polluted freshwater into the marine environment of the St. Lucie River Estuary and Indian River Lagoon System. These high volume releases of polluted, freshwater into the marine environment have negatively impacted the ecological, recreational, and economic values of the St. Lucie River Estuary and Indian River Lagoon System, and additional releases will compound the destruction of sensitive sea grasses and the damage to the fishing guide industry, as well as other ecological and economic resources. Plaintiff requests that the Court enjoin the Corps from releasing water from the Upper Kissimmee Chain of Lakes in furtherance of the extreme drawdown of Lake Toho, and that only the minimum flows necessary to maintain instream flows in the Kissimmee River be allowed pending final resolution of this matter.

The Corps’ decision to conduct the drawdown is in violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA") and the Administrative Procedure Act, 5 U.S.C. §§ 706(1), and (2)(A) ("APA"). The environmental impact statement (“EIS”) prepared for the extreme drawdown of Lake Toho fails to consider impacts to the marine environment in and around the Indian River Lagoon, cumulative impacts of the drawdown in combination with other actions undertaken by the Corps in the management of the Central and South Florida Flood Control Project, and a reasonable range of alternative courses of action. Most significantly, the Lake Toho EIS utterly fails to consider the impacts of undertaking the extreme drawdown in a wet year with high water elevations in Lake O, and completely ignores the Corps’ policy of considering recent and current climatic conditions when making water management decisions for the protection of the environment, as articulated in the Corps’ EIS for Lake O management.

Plaintiff does not seek to permanently prevent the Lake Toho drawdown, however, conducting the extreme drawdown at this time will adversely impact downstream interests. Moreover, a brief delay in the project will not cause significant harm to Lake Toho, the Defendant or other interests. The Corps’ Lake Toho EIS specifically states that the drawdown could start later if conditions warrant a delay. Moreover, Plaintiff is prepared to move expeditiously to a final resolution of this matter based on summary judgment briefing upon receipt of the administrative record from the Corps. Therefore, the Plaintiff’s likelihood of success on the merits and the balancing of the equities favors the issuance of a preliminary injunction.

Plaintiff currently does not ask the Court to issue an immediate temporary restraining order because the Defendant has indicated that it will not release additional water for the drawdown from the Upper Kissimmee Chain of Lakes until Mid-December, although the agency has already begun to move some water through that chain of lakes in furtherance of the project. If the Corps begins to release the water from the Upper Chain prior to then, it may be necessary for Plaintiff to file a separate motion for emergency temporary relief.

Due to the current schedule for releases from the Upper Chain of Lakes, Plaintiff requests that a hearing be held in early December. Plaintiff further requests that it be held on December 9th, 10th or 12th. Because of the timing constraints and the interests of judicial economy, Plaintiff consents to referral of its request for preliminary injunctive relief to Magistrate Judge Johnson, who is familiar with the case from having held two, albeit brief, scheduling conferences on the matter.

Respectfully submitted,
John Andrew Fritschie, Attorney at Law, 1822 Lamont Street, NW, Washington, DC 20010, Phone: 202-265-0370, Facsimile: 202-265-0370, Email: j.frit@verizon.net

Lisa Interlandi, Regional Counsel, Environmental & Land Use Law Center, 224 Datura Street, Suite 201, West Palm Beach, Florida, 33401, Phone: 561-653-0040, Fax: 561-653-0041, Email: lisa@elulc.org