Florida refuses to dismiss manatee case

Bear Warriors United contends that the department has not adequately regulated sewage-treatment plants and septic systems, leading to discharges that killed seagrass — a vital food source for manatees — in a northern stretch of the Indian River Lagoon. Manatees have died in recent years because of starvation.

The state raised a series of arguments in seeking dismissal, including that Bear Warriors United did not have legal standing to pursue the case. But Mendoza wrote, for example, that the group is seeking a series of steps to curb manatee deaths and that he can “easily conclude that if this court were to find in favor of plaintiff, it is likely that fewer protected manatees would be harmed by pollutive sewage.”

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“FDEP (the department) is responsible for regulating, permitting, and revoking (septic systems) and wastewater treatment facilities,” Mendoza wrote. “FDEP has designed and implemented remediation plans to address the nutrient pollution problem in the North IRL (Indian River Lagoon). The (lawsuit) alleged that FDEP’s ongoing failure to use its authority to regulate the sewage more efficiently continues to harm manatees, and thus constitutes an unlawful taking. Therefore, plaintiff has met its causation requirement for standing purposes because its alleged injury is fairly traceable to defendant’s action or inaction.”

The ruling does not resolve the underlying issues in the lawsuit. Bear Warriors United and the state in June filed competing motions for summary judgment. If Mendoza grants summary judgment to either side, it would short-circuit the need for a trial.

In its motion for summary judgment, Bear Warriors United said the department “has known for decades that the septic tanks and wastewater plants it authorizes release human nitrogen” that causes such problems as algae blooms in the lagoon.

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“DEP thus authorizes the destruction of the lagoon’s ability to sustain seagrass and other macroalgae which are essential food sources for the manatees’ survival,” the group’s attorneys wrote. “As such, DEP’s regulatory regime for septic tanks and wastewater plants directly and indirectly results in the ongoing unlawful ‘take’ of manatees, in violation of (a section of the Endangered Species Act), and this court must issue an injunction requiring compliance with the ESA (Endangered Species Act) to prevent further take of manatees.”

But in the department’s motion for summary judgment, attorneys wrote that the state has taken steps in recent years to try to reduce discharges into the lagoon and disputed that it has violated the Endangered Species Act. The motion said the department’s “actions are not the proximate cause of any harm” to manatees, which are classified as a threatened species.

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“The record shows that DEP has not authorized or entitled any party to cause a violation of water quality standards,” the state’s motion said. “It has, instead, worked diligently to restore an impaired water. There is no proximate cause. DEP is entitled to judgment as a matter of law because with no dispute of material fact, it has not violated the ESA.”

The lawsuit involves part of the Indian River Lagoon from the Melbourne Causeway in Brevard County to Turnbull Creek in southern Volusia County.

Florida had a record 1,100 manatee deaths in 2021, with the largest number, 358, in Brevard County, the focus of the lawsuit.

The state had 800 manatee deaths in 2022, before the number dropped to 555 in 2023, according to Florida Fish and Wildlife Conservation Commission data. As of last week, the state had totaled 451 manatee deaths this year, with the most, 76, in Brevard County.

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