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Florida Wildlife Federation Inc. v. United States Army Corps of Engineers

United States Court of Appeals, Eleventh Circuit

June 19, 2017


         Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:12-cv-00355-RH-CAS

          Before TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI, [*] Judge.

          ROSENBAUM, Circuit Judge:

         With the 1937 opening of Florida's only cross-state water channel, the Okeechobee Waterway (the "Waterway"), boats could reach the Gulf of Mexico from the Atlantic Ocean without going around the southern tip of Florida. Besides saving distance and time, the channel allowed smaller vessels to avoid uncertain sea conditions offshore.

         Plaintiff-Appellants Florida Wildlife Federation, Inc., Environmental Confederation of Southwest Florida, Inc., and Conservancy of Southwest Florida, Inc., (collectively, "Conservationists"), complained about serious environmental problems in this channel and the surrounding areas where Lake Okeechobee's waters flow. They asserted that decisions by Defendant-Appellee U.S. Army Corps of Engineers (the "Corps") about when and how to release water from certain locks along the Waterway violate the Clean Water Act and Florida law because they negatively affect the quality of the waters the Corps regulates.

         In response, the Corps invoked sovereign immunity, and the district court dismissed the Conservationists' complaint on that basis. The Conservationists now appeal.

         But they aren't the only ones. The South Florida Water Management District (the "Water District"), an agency of the State of Florida, also appeals the judgment. It does so, though, on the basis that the district court first should have decided whether the Conservationists failed to join the Water District as an indispensable party under Federal Rule of Civil Procedure 19(b).

         Like a boat navigating the most direct path from the Atlantic to the Gulf of Mexico, we decide this appeal in the most straightforward way available: Rule 19(b). In doing so, we decline any invitation by the parties to take a longer, unnecessary route to our decision. Because Rule 19(b) requires the dismissal of this case regardless of whether we agree with the Water District's sequencing argument on cross-appeal or the Corps's sovereign-immunity argument, we need not reach those matters. So just as a boat captain in the Waterway has little reason to prepare for rough waters at sea, we put these issues aside and affirm the district court's judgment on the grounds that the Water District was an indispensable party under Rule 19(b).[1]

         I. Background

         To the Conservationists, this case is about the quality of water and the ecological conditions along the Waterway. To the Corps, it is about federal regulation of navigation through the Waterway. And to the Florida Department of Environmental Protection ("DEP") and the Water District, the case is about protecting any authority the state might have over the waters at the center of this controversy. So resolving this case requires us to consider complex and overlapping interests. Because understanding these interests is critical to finding the right answer here, we review relevant background information below about Florida's water geography, Florida's water-ecology issues, the roles that the federal and state entities play in regulating the waters at issue in this case, and federal and state law concerning water quality.

         A. Florida's Water Geography

         The Waterway is the only navigable cross-Florida water channel. Heading west from the Atlantic Ocean, the Waterway strings together the St. Lucie Inlet, the Indian River Lagoon, the St. Lucie River, the St. Lucie Canal, Lake Okeechobee, and the Caloosahatchee River to arrive at the Gulf of Mexico.

         This case primarily concerns the western part of the Waterway along the Caloosahatchee River, from Lake Okeechobee-"considered the heart of the water resources system in south Florida, " U.S. Army Corps of Eng'rs, Jacksonville Dist., Final Supplemental Envtl. Impact Statement, Lake Okeechobee Regulation Schedule i (2007) ("2007 LORS")-heading west through the Caloosahatchee to the Gulf of Mexico.[2]

         Besides their navigational function, the waters composing the Waterway also play many other important roles. They serve as the source of water to thousands of Floridians and are critical both to flood control and to the health of major ecosystems in Florida. The waters also host commercial fishing operations and visitors who enjoy using them for boating, canoeing, swimming, fishing, and wildlife observation.

         Five navigation locks control the flow of water along the entirety of the Waterway. The Conservationists' complaint relates to the management of three of these locks. First, the Moore Haven Lock and Spillway, known as "S-77, " is closest to Lake Okeechobee and controls flows between Lake Okeechobee and the Caloosahatchee River. Second, 15.5 miles to the west of S-77, on the Caloosahatchee River, lies the Ortona Lock and Spillway, known as "S-78." Third, the W.P. Franklin Lock and Dam, known as "S-79, " is located 27.9 miles to the west of S-78 and is the westernmost lock on the Caloosahatchee River.[3]Opening a lock can allow water flow from one section of the Waterway to another, while maintaining a lock in a closed position can prevent water flow between parts of the Waterway.

         B. Florida's Ecological Water Issues

         Florida suffers from a Goldilocks problem when it comes to water in the Waterway: too much or too little results in serious consequences. The waters in the Waterway are healthiest and most useful when they fall within a range that is just right. In this lawsuit, the Conservationists complain about only the problems that arise as a result of low water in the Caloosahatchee River, a condition they attribute in part to the Corps's management of S-77, S-78, and S-79 under its 2008 regulation schedule. See generally U.S. Army Corps of Eng'rs, Jacksonville Dist., Cent. & S. Fla. Project: Water Control Plan for Lake Okeechobee & Everglades Agric. Area (2008) ("2008 LORS").

         Low water levels can have adverse effects on navigation, water supply, and fish and wildlife in the area. Among other negative effects, low water levels can aggravate ecological conditions in the Caloosahatchee and St. Lucie Estuaries by causing too high a level of salinity and saltwater encroachment into the freshwaters of the Waterway. But the Conservationists draw special attention to another serious problem associated with lower water levels: the emergence of algal blooms. Often characterized by the bright-green appearance of the water in which they are occurring, algal blooms represent a serious environmental problem because they consume an excessive amount of oxygen from the water when the constituent cells die. The remaining levels of oxygen may be too low to sustain aquatic life, which can die off as a result.

         Algal blooms also can result in taste and odor problems with drinking water, contribute to the formation of carcinogenic substances in drinking water when it undergoes chlorination, and produce toxins that are not removed by the treatment process. Algal-bloom toxins, in turn, can cause liver and neurological disease in animals and humans who drink or come into contact with the water. They can induce skin irritations, kill fish and other animals, and seriously impair the recreational value of the body of water. And eating fish taken from waters during algal blooms is dangerous. Algal blooms have happened in the Caloosahatchee River eight of the eleven years between 2001 and 2012. In 2011, eight weeks of algal blooms proliferated.

         C. The Federal and State Entities Who Regulate Florida's Water Policy

         Management of the Waterway and its constituent waters is essential to protect the health of the waters and to balance the important and sometimes-competing interests in the Waterway. As we have alluded to, both Florida and the Corps take part in that management.

         1. The History of Florida's Water Management

         The State of Florida and the Corps have sought to manage the waters of Lake Okeechobee since the late 1800s, building a complex system of canals, levees, and storage areas to control the lake's water levels. See Mildenberger v. United States, 643 F.3d 938, 941 (Fed. Cir. 2011) (reviewing the history of the Central & South Florida Project). Following hurricanes in 1926 and 1928 that resulted in flooding, damage, and many deaths, Congress enacted the Rivers and Harbors Act of 1930, authorizing the Chief of Engineers of the United States Army, under the supervision of the Secretary of War (now Secretary of the Army), to provide for flood control and navigation in Florida as well as elsewhere. Rivers and Harbors Act of 1930, Pub. L. No. 71-520, 46 Stat. 918 (1930).

         In accordance with this Act, Congress directed the creation of a project for navigation and flood control in the Caloosahatchee-Lake Okeechobee areas. See S. Doc. No. 115, 71st Cong., 2d Sess., at A-6 (1930) (Letter dated Mar. 15, 1930 from Lytle Brown, Major General, Chief of Engineers, United States Army, to Hiram W. Johnson, Chairman Committee on Commerce, U.S. Senate). More specifically, Congress acted on the Chief of Engineers's recommendation to deem "the St. Lucie Canal, the Caloosahatchee Canal, and other channels forming the proposed cross-State waterway . . . navigable waters of the United States and subject to the Federal laws for the protection of such waterways." Id. at A-7.

         In 1948, Congress authorized the Army Corps of Engineers to preside over the Central & South Florida Project (the "Project") "for the benefit of navigation and the control of destructive floodwaters and other purposes." Flood Control Act of 1948, Pub. L. No. 80-858, 62 Stat. 1175 (1948). The Project spans 12, 000 square miles and includes the Okeechobee Waterway.

         Although the Corps bears management and operational responsibility for the Project, the Water District-the Project's "local sponsor"-maintains and operates many of the structures within the Project. But the Water District does not maintain and operate the "levees, channels, locks, and control works of the St. Lucie Canal, Lake Okeechobee, Caloosahatchee River, and the main spillways of the water conservation areas." U.S. Army Corps of Eng'rs, Jacksonville Dist., Master Water Control Manual, Cent. & S. Fla. Project for Flood Control & Other Purposes: Auths. & Responsibilities 4-1 (1991). Those remain under the control of the Corps.

         Rather, as the Water District has described its role in the Project, "the agency interacts with the [Corps] on Lake Okeechobee operations within the confines of the federally adopted lake regulation schedule." South Florida Water Management District, Final Adaptive Protocols for Lake Okeechobee Operations iii (2010). The Water District further acknowledges that federal law requires local sponsors to "maintain and operate all works after completion in accordance with regulations prescribed by the Secretary of War [Army]." Id. at 7 (alteration in original) (quoting 33 U.S.C. § 701c).

         Federal law demands that excepted areas and water-control structures- which include the S-77, S-78, and S-79 water-control structures-be operated and maintained in accordance with regulations approved by the Secretary of the Army. 33 C.F.R. § 208.10(a)(2). Congress intended the Corps's control over these areas and structures to "serve[] a number of competing functions, including flood control, water supply, navigation, environmental protection and enhancement, and recreational purposes." U.S. Army Corps of Eng'rs, Jacksonville Dist., Lake Okeechobee Regulation Schedule Study, Final Envtl. Impact Statement and Annex A i (1999).

         To "conform with objectives and specific provisions of authorizing legislation and applicable Corps of Engineers reports, " the Corps manages Lake Okeechobee's water levels in accordance with a regulation schedule. U.S. Army Corps of Eng'rs, Engineer Reg. 1110-2-240, Engineering and Design, Water Control Mgmt., Distribution Restriction Statement 2 (1982). The Corps develops water-control plans for each specific project and revises them as necessary, "provided such revisions comply with existing Federal regulations and established Corps of Engineers policy." Id.

         2. The 2008 LORS

         The most recent water-control plan for the Project, the 2008 LORS, was a response to the heavy levels of rain Florida experienced in 2003-2005. See 2007 LORS at ii. The 2008 LORS represents an effort to more effectively address Lake Okeechobee's high-water problems of the prior few years through a water-release "decision-making process that considers all the Congressionally-authorized project purposes." 2008 LORS at 7-1.[4] Under the 2008 LORS, the "authorized project purposes" include "flood control; navigation; water supply for agricultural irrigation, municipalities and industry, the Everglades National Park . . ., regional groundwater control, and salinity control." Id.

         Because the Corps must consider certain constraints on the water-control plan that are "interrelated and . . . [may involve] physical, legal, political, social and major conflicts between authorized project purposes, " the 2008 LORS does not emphasize one project purpose over the others. Id. Instead, every water-release decision affecting Lake Okeechobee incorporates all project purposes.

         Under the 2008 LORS, decision frameworks known as "management bands" guide the Corps's water-control decisions relating to Lake Okeechobee. Id. at 7-10. Each management band provides water-release guidance corresponding with a particular level of water in Lake Okeechobee. The 2008 LORS establishes three broad management bands: the High Lake Management Band, the Operational Band, and the Water Shortage Management Band.

         Unlike for the other bands, the 2008 LORS explains that "[t]he goal of [the Water Shortage Management Band] is to manage existing water supplies contained within Lake Okeechobee in accordance with [Water District] rules and guidance." Id. at 7-24. Towards this end, the 2008 LORS provides that water releases for certain statutorily approved beneficial uses of Lake Okeechobee-including, among others, estuarine management and salinity control and dilution of pollutants in project canals-"may be restricted at the discretion of the [Water District] as outlined in the Water Shortage Management Band." Id.

         As this provision affects navigation, the 2008 LORS explains that the Water District "typically requests that the Corps implement reduced hours of lockages . . . . During reduced hours of lockages, water is conserved and saltwater migration upstream of S-79 is potentially reduced." Id. at 7-25. But the 2008 LORS cautions, "[i]t is important to note that the [Water District] request for weekly allocation volume water supply deliveries may not be sufficient to maintain navigation depths in the [Waterway]." Id. Based on this circumstance, the Conservationists contend that when the Water Shortage Management Band is in effect, as a practical matter, the Corps's authority to maintain navigation cannot be a consideration in water-management decisions because navigation is often not possible. D. Laws Governing Administration of the Relevant Bodies of Water

         1. The Relevant Florida Statutes

         a. The Air and Water Pollution Control Act

         Florida enacted the Air and Water Pollution Control Act in part to improve and protect the quality of Florida waters. See Fla. Stat. § 403.021(2). In furtherance of this goal, Florida empowered the DEP to promulgate necessary rules and regulations to implement the Air and Water Pollution Control Act. Id. § 403.061. Among the rules that the DEP created, Florida Administrative Code Rule 62-302.200, et seq. ("Florida Water Regulations"), comprehensively provides for the prevention, abatement, and control of pollution in the state's navigable waters.

         The Florida Water Regulations set forth guidelines such as the following for bodies of water like the Caloosahatchee River: minimum permissible levels of dissolved oxygen, see Fla. Admin. Code R. 62-302.530(58); limitations on the concentration of dissolved solids, Fla. Admin. Code R. 62-302.530(59); prohibitions on "[s]ubstances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, plants, or animals, " Fla. Admin. Code R. 62-302.530(108); and maximum average salinity concentrations, Fla. Admin. Code R. 40E-8.221. The Conservationists assert that the Corps's water-management decisions when the Water Shortage Management Band is in effect create water conditions that violate the Florida Water Regulations. b. The Florida Water Resources Act Florida originally passed its Water Resources Act in 1972. See Fla. Stat. § 373.013. Under the statute, private citizens have a cause of action to enjoin the operation of any stormwater facility that violates Florida law. But the Florida Water Resources Act also provides that "[t]he governing board or the [DEP] shall be a necessary party to any such suit." Fla. Stat. § 373.433.[5]

         2. The ...

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