Big sugar loses legal fight over lower lake levels

ATLANTA (CN) — An 11th Circuit panel ruled in favor of the U.S. Army Corps of Engineers on Tuesday, siding with the agency’s decision to lower water levels in Lake Okeechobee that prompted a legal fight by sugar growers.

In the 52-page decision, the three-judge panel said the Corps rightfully reduced water levels in 2008 due to concerns over the integrity of the Herbert Hoover Dike that surrounds the lake. Those new regulations were not part of a larger reservoir project, and thus, did not breach the “savings clause” of the Water Resources Development Act, passed by Congress in 2000, which guaranteed sugar growers a certain amount of water from the lake for irrigation purposes.

“It is clear — and the plaintiffs have not argued otherwise — that an act of nature is not an ‘implementation of the plan’,” U.S. Circuit Judge R. Lanier Anderson III, a Jimmy Carter appointee, wrote for the panel. “For example, a water supply loss caused by a hurricane’s damage to the dike is not water that the Corps must replace under the replacement obligation of the savings clause.”

The Okeelanta Corporation, Sugar Cane Growers Cooperative of Florida and United States Sugar Corporation sued the government agency in 2021, claiming the $3.9 billion Everglades Agricultural Area Reservoir project would permanently reduce water supplies to the companies’ sugar cane farms south of Lake Okeechobee. The companies claimed the 2008 regulations would hurt their crops during droughts.

In March 2023, U.S. District Judge Donald Middlebrooks ruled in favor of the Corps. The sugar companies appealed two months later.

In 2020, when the Corps approved the Everglades Agricultural Area Reservoir project, which would control the amount of water that flows down into the sensitive Everglades region, the agency decided to rely on those water supply regulation levels set in 2008 and not earlier when the lake’s water level was higher.

“Plaintiffs make no argument, and cite no evidence to suggest, that the Corps miscalculated the risks posed by the integrity problems of the dike,” Anderson wrote. “They make no argument, and cite no evidence to suggest, that the Corps could have — consistent with legitimate safety concerns — provided for a regulation schedule which would have allowed for a larger capacity for the lake or a higher lake level than the 17.25-foot level provided for in 2008.

“We also hold that the Corps’ use of the 2008 baseline to determine whether the EAA project satisfies the Savings Clause is a reasonable way to reflect the fact that the Corps — in approving the EAA project — was not required to replace water supply lost as a result of the integrity problems of the dike,” he wrote.

Anderson was joined in the opinion by U.S. Circuit judges Jill Pryor and Kevin Newsom, appointed by Barack Obama and Donald Trump, respectively.

“We are still reviewing the court’s decision, however, we are disappointed in the ruling,” said Ryan Duffy, spokesman for U.S. Sugar. “In 2000, Congress passed a law protecting South Florida’s water supply in CERP projects, such as the EAA Reservoir project. Repairing the Herbert Hoover Dike was a temporary measure and it was never intended to override the savings clause protections adopted by Congress and signed into law. The court’s decision appears to put South Florida’s water supply protections in jeopardy.”

Lake Okeechobee, the largest in Florida, provides drinking water for some of the state’s most populous counties and irrigation for some of the state’s largest farms. Through tributaries and estuaries, water from Lake Okeechobee also flows into the Everglades. The massive reservoir is supposed to help revive those sensitive marshes and rivers. For decades, the fight over water levels has pit industry, environmentalists, municipalities and the federal government against each other.

The Corps did not immediately respond to a request for comment on the ruling.

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