FLORIDA WILDLIFE FEDERATION INC., ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA INC., CONSERVANCY OF SOUTHWEST FLORIDA INC., Plaintiffs-Appellants Cross Appellees,
UNITED STATES ARMY CORPS OF ENGINEERS, SOUTH FLORIDA WATER MANAGEMENT DISTRICT, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants-Appellees Cross Appellants.
from the United States District Court for the Northern
District of Florida D.C. Docket No. 4:12-cv-00355-RH-CAS
TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI,
ROSENBAUM, Circuit Judge:
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.
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.
response, the Corps invoked sovereign immunity, and the
district court dismissed the Conservationists' complaint
on that basis. The Conservationists now appeal.
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).
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).
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
Florida's Water Geography
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.
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.
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
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.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.
Florida's Ecological Water Issues
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
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
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.
The Federal and State Entities Who Regulate Florida's
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
The History of Florida's Water Management
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).
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.
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.
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.
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).
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).
"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.
The 2008 LORS
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. 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."
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.
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
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.
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
The Relevant Florida Statutes
Air and Water Pollution Control Act
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.
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.