Indian River Lagoon- Florida, USA/ Big Sugar/Bull Sugar/Pollution/Discharges from Okeechobee/Fishery
[For now I'm putting info on this page then I'll add pages and separate the info,
R. Matteson 2016]
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Questions:
1) Who has the authority to regulate the flow of water from Okeechobee? I know it's The U.S. Army Corps of Engineers but what law gives them the authority and can the law be changed? If the authority can be changed how can that be done? Can a local municipality block or prevent the discharge of water into their jurisdiction but issuing a "state of emergency proclamation"? Does this have to come from the governor or can it be issued from a local court? Who can request assistance fro a "Local Emergency Declaration (with OES Director's Concurrence)" or a state "OES Director's Concurrence of Local Emergency Declaration"?
2) How do we file a 100 billion dollar class-action lawsuit against the Federal Government and the U.S. Army Corps of Engineers for damages to persons, environment and property- and who would do it for us? Of course they'd get a cut but it would be time-consuming. I know suits have been filed but not this suit which we will have construct so it will force the federal government to make changes.
3) Isn't there a law or couldn't the current law be interpreted so that it would prevent private land owners (big sugar) from diverting the natural flow of water of a state waterway? What is the law?
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links
http://www.usace.army.mil/Portals/2/docs/civilworks/CWRB/broward/Broward_Cnty_WPA_Report_Summary_09_Apr07.pdf
The U.S. Army Corps of Engineer
NIOSH, OSHA, Environmental Protection Agency (EPA) or DA may regulate water quality as regards to industry.
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U.S. Sugar
Headquarters: Clewiston, FL
Key executives:
Robert Buker, Chief Executive;
Robert Coker, Senior Vice-President
Employees: 1,700, down from 2,100 in 2006
Properties: Farms more than 187,000 acres in Hendry, Glades and Palm Beach counties. Owns a mill and refinery in Clewiston and a closed mill in Bryant.
Other holdings: Southern Gardens Citrus, which produces 42 million gallons of orange juice annually and owns 33,000 acres of groves; South Central Florida Express short-line railroad, which hauls sugar cane and products, fertilizer and farm equipment as well as products for lumber, paper and citrus industries
Harvest (2007-08): 612,000 tons
Annual revenues:
About $400 million from cane production
Other alliances: U.S. Sugar is a member company of United Sugars Corp. in Edina, Minn., which markets and distributes its sugar and that of beet sugar producers American Crystal Sugar Co. and Minn-Dak Farmers Cooperative. United Sugars' annual revenues are about $1.2 billion.
Sources: U.S. Sugar, Hoover's Inc.
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The Florida Department of Environmental Protection (FDEP) is the Florida government agency charged with environmental protection. It is under the nominal control of the governor.
On Oct. 12, 2010, the South Florida Water Management District completed closing on an acquisition of 26,800 acres of land from the U.S. Sugar Corporation for restoration purposes.
Indian River Lagoon-South Phase 1 Project, the C-44 Reservoir and Stormwater Treatment Areas (STAs)
Media
Randy Smith
South Florida Water Management District
Office: (561) 682-2800
or Cellular: (561) 389-3386
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http://www.pelicanislandaudubon.org/Hoot_Archive/hoot_november_05.html
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Endangered Species Act Citizen Lawsuit against FL Department of Health
2014 case file manatees
Herman "Tim" Chastain's Manager for Fin Expeditions Ltd Co.
https://static1.squarespace.com/static/526888efe4b0e7f8297496cd/t/5321cf67e4b0501828757b2f/1394724711074/FINAL+IRL+60+Day+Notice.pdf
Lesley Blackner
Blackner, Stone & Associates
340 Royal Poinciana Way
Suite 317-377
Palm Beach, FL 33480
tel: (561)659-5754
lblackner@aol.com
Christopher T. Byrd
The Byrd Law Group, P.A.
3505 Lake Lynda Drive Suite 200
Orlando, Florida 32817
tel: 407-567-2427
christopher@byrdlawflorida.com
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Colonel Jason A. Kirk
District Commander
U.S. Army Corps of Engineers, Jacksonville District
701 San Marco Boulevard
Jacksonville, FL 32207-8175
Lt. Colonel Jennifer A. Reynolds
Deputy District Commander for South Florida
U.S. Army Corps of Engineers, Jacksonville District
South Florida Restoration Program Office
1400 Centrepark Boulevard
West Palm Beach, FL 33401-7402
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Clean Water Act The Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972), Public Law 92-500, as amended by Public Law 96-483 and Public Law 97-117, 33 U.S.C. 1251 et seq. The Clean Water Act (CWA) contains a number of provisions to restore and maintain the quality of the nation's water resources. One of these provisions is section 303(d), which establishes the TMDL program.
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American Farm Bureau Federation et al. v. U.S. Army Corps et al. (Prior Converted Cropland)
Court
U.S. District Court for the Southern District of Florida
NAHB Involvement
Plaintiff
PCC Policy, 02.08.11 Order Denying Corps Motion to Alter Judgment and Granting Intervention Motion, S.D. Fla.
PCC Policy, 11.04.10 NAHB Motion to Intervene, S.D. Fla.
PCC Policy, 11.04.10 NAHB Motion to Intervene, Exhibits 2 to 5, S.D. Fla.
PCC Policy, 10.06.10 Stay Order, S.D. Fla.
PCC Policy, 10.05.10 American Farm Bureau Federation and NAHB Request for Stay, S.D. Fla.
PCC Policy, 09.29.10 Order Setting Aside New PCC Policy, S.D. Fla.
PCC Policy, 09.28.10 Order Dismissing AFBF and NAHB Suit as Moot, S.D. Fla.
PCC Policy, 07.20.10 Order Transferring AFBF and NAHB Suit, D.D.C.
PCC Policy, 06.07.10 Corps' Answer to Complaint, D.D.C.
PCC Policy, 05.20.10 American Farm Bureau Federation and NAHB Opposition to Consolidate and Transfer, D.D.C.
PCC Policy, 05.19.10 Amended Complaint, D.D.C.
PCC Policy, 05.06.10 Corps' Motion to Consolidate and Transfer, D.D.C.
The plaintiffs, the American Farm Bureau Federation (AFBF), U.S. Sugar Corporation (U.S. Sugar) and NAHB (collectively, the NAHB Plaintiffs) filed a complaint challenging the U.S. Army Corps of Engineers' (Corps) Headquarters' illegal adoption of a nationally applicable rule that changes how the Corps regulates prior converted cropland (PCC). Under the new rule, the Corps treats cropland that is no longer a wetland as a "water of the U.S." The Corps issued the new rule without following the Administrative Procedure Act's (APA) notice-and-comment requirements. The new rule, therefore, contravenes the lawfully adopted 1993 Final Rule, which excluded prior converted cropland from the definition of "the waters of the United States" and regulation under Clean Water Act Section 404.
The NAHB Plaintiffs requested that the court:
(1) Declare that the new rule violates the 1993 Final Rule and the APA.
(2) Declare that the new rule and related orders are unlawful and set them aside.
(3) Enjoin the Corps from applying the new rule and related documents.
(4) Declare that the Corps' 1993 Final Rule is the applicable standard regarding PCC and instruct the Corps to follow it.
On May 6, 2010, the Corps moved to consolidate this suit with a related case (New Hope Power Co. and Okeelanta Corp. v. U.S. Corps of Engineers and Steven L. Stockton, No. 1:09-cv-02413-RWR (D.D.C.)) and transfer venue to the United States District Court for the Southern District of Florida. In July 2010, the D.C. District Court granted the motion to transfer venue to the Southern District of Florida, but deferred the consolidation request to the Florida district court.
Without deciding the consolidation motion, the Florida district court set aside the Corps' new policy in the New Hope case and enjoined the Corps from applying the new policy. The NAHB Plaintiffs requested that the district court stay its lawsuit until any appeals in the New Hope case are resolved, and the court granted the motion.
The NAHB Plaintiffs also moved to intervene in the New Hope case just as the Corps filed a motion to alter the district court's judgment by narrowing the scope of the injunction to apply only in Florida. If granted, the Corps would have been able to apply the new policy elsewhere in the nation. On Feb. 8, 2011, the district court granted NAHB's motion to intervene in the New Hope case and denied the government's motion to narrow the scope of the injunction. The Corps appealed the decision to the Eleventh Circuit Court of Appeals, but later decided not to pursue the appeal. NAHB's participation in this suit is now complete.
Email: Jennifer.A.Reynolds@usace.army.mil
Tunis McElwain
U.S. Army Corps of Engineers
Fort Myers Regulatory Office
1520 Royal Palm Square Boulevard, Suite 310
Fort Myers, FL 33919
Tunis.W.McElwain@usace.army.mil
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NAHB Involvement
Petitioner
04.16.15 Petition for Reh’g, SCOTUS
12.01.14 NAHB Amicus Brief, SCOTUS
In 2005, the federal Natural Resource Conservation Commission (NRCC) informed Belle Company, LLC, that its property did not qualify for the “prior converted cropland” exception because it was no longer in agricultural use. The U.S. Army Corps of Engineers agreed and issued a preliminary jurisdictional determination (JD) that Belle's property contained federally regulated wetlands. A final JD affirming that position was issued by the Corps in 2011.
Belle and Kent Recycling (collectively, “Kent”) filed suit in federal district court, alleging that the JD is unlawful and should be set aside. The court granted the Corps' Motion to Dismiss on the ground that the court lacked subject-matter jurisdiction over the claim because a JD is not final agency action reviewable under the Administrative Procedure Act (APA).
On appeal the Fifth Circuit explained that because the JD is not action by which “rights or obligations have been determined, or from which legal consequences will flow” the JD is not reviewable. To challenge the finding, the court explained, Kent would first need to apply for a Clean Water Act (CWA) discharge permit and then sue over the permit terms on the merits, or discharge without a permit in defiance of the JD and address jurisdiction in an enforcement proceedings for the alleged CWA violation.
In October of 2014 Kent filed a Petition for Certiorari requesting Supreme Court review. NAHB, along with the American Farm Bureau, American Petroleum Institute, National Mining Association and Utility Water Act Group filed an amicus brief in support of Kent on Dec. 1, 2014. The primary thrust of the brief was to persuade the Supreme Court to extend the logic expressed in its recent landmark ruling in Sackett v. EPA and permit pre-enforcement review. Unfortunately, the Supreme Court denied the petition on March 23, 2015.
Then, on April 17, Kent filed a petition for rehearing of the Supreme Court's order in light of a recent decision out of the Eighth Circuit (Hawkes) in which the circuit court found that a JD constitutes final agency action subject to judicial review. We are now anxiously waiting to see if the high court will reconsider its earlier decision and take the case.
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Hawkes Co. v. Corps (Clean Water Act)
Court
United States Court of Appeals for the Eighth Circuit
NAHB Involvement
Amicus
04.10.15 Decision, 8th Circuit
11.15.13 NAHB Amicus Brief, 8th Cir.
11.08.13 Opening Brief, 8th Cir.
The plaintiff in this case (Hawkes Co.) disagreed with a "jurisdictional determination" ("JD") made by the U.S. Army Corps of Engineers. Specifically, it did not believe the wetland on its property was a "Water of the United States." The District Court granted the Corps' motion to dismiss, holding that the JD was not a "final agency action" as required by the Administrative Procedure Act (APA). The plaintiff appealed to the Eighth Circuit.
NAHB, as part of a coalition, filed an amicus brief in support of Hawkes on Nov. 21, 2013. The case was argued and submitted for a decision on Dec. 11, 2014.
The Court of Appeals reversed the decision.
It recognized that review under the APA should be widely available to those who wish to challenge agency actions. Furthermore, the court held that the cost of obtaining a permit is "prohibitive" and that the government's strategy requires property owners to either go through an expensive permitting process with no guarantee of an approval, or to risk moving forward without a permit, only to face hundreds of thousands of dollar in penalties.
The government sought rehearing and has been denied. Thus, there exists a split in the circuit courts on this important issue.
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NAHB v. EPA, Army Corps of Engineers (Traditional Navigable Water)
Court
U.S. Court of Appeals for the District of Columbia Circuit
NAHB Involvement
Plaintiff
Santa Cruz, 05.28.14 Reply Brief, D.C. Cir.
Santa Cruz, 07.26.13 Opinion, D.D.C.
Santa Cruz, 05.16.13 Government's Response to Motion to Dismiss, D.C. Cir.
Santa Cruz, 03.08.12 Order, D.C. Cir.
Santa Cruz, 01.20.12 Petition for Rehearing, D.C. Cir.
Santa Cruz, 12.09.11 Opinion, D.C. Cir.
Santa Cruz, 07.27.11 Reply Brief, D.C. Cir.
Santa Cruz, 06.30.11 EPA's Brief, D.C. Cir.
Santa Cruz, 08.18.10 Decision Granting Motion to Dismiss, D.D.C.
Santa Cruz, 02.04.10 NAHB Opposition to Motion to Dismiss, D.D.C.
Santa Cruz, 12.30.09 Transfer Decision, D.D.C.
Santa Cruz, 03.23.09 Complaint, D.D.C.
Santa Cruz, 08.07.08 Oberstar Release
Santa Cruz, 07.25.08 TNW Letter
Under the Supreme Court's current case law, a water body falls under the EPA's Clean Water Act jurisdiction if it has a "significant nexus" or continually flows to a "traditionally navigable water.(TNW)" The EPA determined that the Santa Cruz River is a TNW even though the water that flows in it comes from a sewage treatment plant and there is no history of people using the "river" for commerce. The EPA made its decision without allowing the public to comment on its decision. The EPA and Corps are making similar decisions around the country so they can assert jurisdiction over a greater number of water bodies.
In January 2013, after lining up members to sign declarations that prove the EPA has injured NAHB members, NAHB filed its second complaint against this action.
The government filed a Motion to Dismiss claiming
The doctrine of issue preclusion bars NAHB's claim,
Article III standing has not been established,
The challenged TNW determination is not final agency action, and
NAHB's claim is not ripe for review.
NAHB's Response was filed on April 26, 2013.
On July 26, 2013, the D.C. Circuit Court once again found that NAHB had failed to establish standing because its member declarations did not adequately allege an injury-in-fact fairly traceable to EPA's TNW Determination. The court further claimed that "even if NAHB could show that it has standing to challenge the TNW Determination, the Court would still reject NAHB's claims because the Determination is not a final agency action" subject to review under the Administrative Procedure Act.
Determined to prove that the Court is wrong, NAHB filed a Notice of Appeal on Sept. 9, 2013. NAHB's opening brief was submitted on March 10, 2014. A reply brief followed on May 28, 2014. Oral argument was held on Nov. 24, 2014.
In June 2015, the D.C. Circuit ruled that NAHB was barred from bringing its case to court based on “issue preclusion.” Two of the judges, however, found that NAHB had standing in its first case, and have standing now, but are still precluded. In July 2015, NAHB filed a motion for rehearing. We are waiting for a decision on that motion.
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On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which updates the Toxic Substances Control Act
15 U.S.C. §2601 et seq. (1976)
The Toxic Substances Control Act of 1976 provides EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cosmetics and pesticides.
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https://www.epa.gov/aboutepa/about-office-chemical-safety-and-pollution-prevention-ocspp#oppt
The Pollution Prevention Act defines "source reduction" to mean any practice which:
Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions); prior to recycling, treatment or disposal; and
Reduces the hazards to public health and the environment associated with the release of such substances, pollutants or contaminants.
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EPA- looks like there are at least two acts that could be used:
1. Clean Water Act The Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972), Public Law 92-500, as amended by Public Law 96-483 and Public Law 97-117, 33 U.S.C. 1251 et seq. The Clean Water Act (CWA) contains a number of provisions to restore and maintain the quality of the nation's water resources. One of these provisions is section 303(d), which establishes the TMDL program.
2. The Pollution Prevention Act defines "source reduction" to mean any practice which:
Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions); prior to recycling, treatment or disposal; and
Reduces the hazards to public health and the environment associated with the release of such substances, pollutants or contaminants.