Environmentalists threaten EPA with lawsuit over the pollution killing manatees

Nitrogen and phosphorus discharges endanger their food source

By: - December 20, 2021 3:16 pm

Manatees gather in waters within the Jupiter Inlet Lighthouse Outstanding Natural Area, managed by the U.S. Bureau of Land Management. Credit: BLM Southeastern States

An environmentalist coalition has served notice of its intent to sue the U.S. Environmental Protection Agency unless it intervenes with state regulators to halt the release of pollutants into the Indian River Lagoon, where endangered Florida manatees are undergoing an historic die-off.

The notice filed Monday by Earthjustice, which litigates to protect the environment, gives the EPA 60 days to act; otherwise, Earthjustice plans to sue on the behalf of the Center for Biological Diversity, Defenders of Wildlife, and Save the Manatee Club.

“It is painfully clear that Florida isn’t doing what’s necessary to control the sewage and fertilizer pollution that’s wrecking the Indian River Lagoon,” Earthjustice attorney Elizabeth Forsyth said in a written statement.

“It’s time for EPA to step in and enforce the Clean Water Act for the sake of the manatees and all the other creatures and people that rely on Florida’s waterways. If watching manatees starve isn’t the tipping point for the EPA to step in, I don’t know what is.”

The letter, which also invokes the Endangered Species Act, is addressed to EPA Administrator Michael Regan and Tony Able, head of the agency’s Water Protection Division. Press officers at the EPA and Florida Department of Environmental Protection have yet to respond to requests for comment.

More than 1,000 manatees have perished this year in what officials have recognized as an “unusual mortality event,” the most ever recorded, and more than half those deaths have been from starvation because toxic algae have been killing off the seagrasses on which manatees rely, the notice letter says.

State officials — finally having won federal approval for the move — have begun using lettuce to supplement the manatees’ diet.

EPA is obligated under the Clean Water Act to control this pollution, caused by phosphate and nitrogen from wastewater treatment plants, agricultural runoff, leaking septic systems, and other sources, the letter says.

“New information shows that the current criteria suffer from lax enforcement, an inappropriately long trajectory to achieve compliance, and a failure to take into account the impact of legacy pollution,” the letter complains.

“As a result, approximately 12 percent of the estimated Florida manatee population statewide has died, with the Atlantic subpopulation having lost approximately 19 percent of its population. In short, both the Indian River Lagoon and the manatee are presently in the midst of ecological collapse,” it continues.

“Further, it appears likely that the 2021 unusual mortality event will not be a one-time event, but rather portends a grim future of continued manatee deaths unless more effective actions are taken to address the key environmental factor driving them — nutrient pollution of key estuary habitats that is destroying habitat, including food for manatees and many other species.”

Any suit would be filed in federal court but Earthjustice hasn’t decided yet upon a specific venue, Forsyth said via email.

“It’s disgraceful that hundreds of manatees have died as a direct result of regulators’ failure to protect our water quality,” Jaclyn Lopez, Florida director at the Center for Biological Diversity, said in her own written statement.

“The Indian River Lagoon is an ecological wonder that supports not just manatees, but green sea turtles, snook, tarpon, and a stunning diversity of marine life. The mass death of these manatees, which was completely preventable, makes it clear just how critical it is that the EPA take swift action to protect the vibrant ecosystem they live in before it’s too late,” she said.

“Until Florida is forced to rein in its rampant pollution, manatees will continue to die slow, agonizing deaths by starvation every winter,” said Lindsay Dubin, staff attorney at Defenders of Wildlife. “The EPA must act immediately to improve water-quality lest it further jeopardizes the future of this iconic species.”

At issue are “total maximum daily loads,” or TMDLs, of pollutants allowed under federal and state regulations.

Under federal law, “EPA must determine that the TMDL provides reasonable assurances that point and nonpoint source control measures will achieve expected load reductions,” Earthjustice wrote.

“Lax enforcement and compliance for both point and nonpoint sources suggests that the current TMDLs are ineffective at controlling nutrients into the Indian River Lagoon. EPA must therefore reinitiate consultation to consider this new information suggesting that the current TMDLs are not being effectively implemented and that the TMDLs lack reasonable assurances they will achieve load reductions.”

Existing regulations allow for up to 90 days each year of discharges from wastewater treatment plants during heavy rainfall, of up to several million gallons per day, but these are “poorly reported,” Earthjustice says.

Meanwhile, the state has cut back on both the number of inspections of these units and the amounts in fines assessed, which a 2020 Florida Public Employees for Environmental Responsibility report referred to as “the traffic ticket approach.”

The letter points to low participation rates by agricultural operations in state programs to limit discharges of fertilizers. Nonparticipation is supposed to bring state penalties but the DEP has imposed none, it says.

Neither do the regulations account for “legacy muck,” or pollutant-laden sediments on the lagoon bottom, which as they deteriorate cloud the water and release nitrogen and phosphorus. According to the warning letter, an estimated 5 million cubic yards of muck lie within the lagoon, accounting for 30 percent of the nutrient load. Existing regulations are supposed to account for this source but do not, the document says.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.