Karl Wickstrom: Rivers Coalition presents case against discharge pollution

By Karl Wickstrom


December 16, 2009


The “strongest-ever” legal attack against polluted discharges into the St. Lucie estuary resonated through a federal courtroom in a three-hour hearing in Washington.


Although no decision was made, pivotal arguments were narrowed down in the Rivers Coalition Defense Fund’s riparian rights “takings” lawsuit against the U. S. Army Corps of Engineers.


Attorney Roger Marzulla, representing the Defense Fund, laid out detailed evidence of the massive discharges from inland which wipe out marine life and make the waters unfit to touch in wet years, especially in ’03, ’04 and ’05.


“That was the strongest-ever presentation I’ve seen about the estuary pollution,” said Martin County Commissioner Sarah Heard, one of seven Stuart-area persons at the hearing. Martin County has filed a friend-of-the-court petition favoring the lawsuit.


Judge Lynn Bush of the Court of Federal Claims gave no indication of when she’ll rule on the parties’ cross motions for summary judgment. Predictions ranged from one to three months.


One observer opined that the judge’s polite but reserved demeanor would play well on a poker tour.


But she did ask a pointed question when a Corps attorney made his continuing argument that the engineers simply released the pollution, but did not cause it.


“It was there, though, correct ?,” the judge said.


Marzulla drew a parallel to a person having trash put on his property, “which doesn’t mean he has a right to pass on the trash to someone else.”


In effect, the government acknowledged that the St. Lucie has suffered negative effects from the discharges. Its case rests more on procedural grounds, or what some call “loopholes.”


From this viewpoint, it is distressing that our own government is using public money (great gobs of it) to defend the seemingly indefensible discharge onslaughts.

The Corps is supported, alas, by the South Florida Water Management District, which had walked in lockstep with the federal agency to create the “drainage machine” over decades.


The district claims the case could open a floodgate of lawsuits, to which we respond that such legal gates indeed would need opening when transferred pollution is unreasonable.


Two other defense grounds were that “navigational servitude” gives first priority to providing for boat traffic, and that the Rivers Coalition claims are “time-barred” because the problems violate the statute of limitations (six years in this case).


But the facts of the lawsuit have nothing to do with boat traffic, the Coalition emphasizes. And the immensity of blue-green algae damages suffered in recent years distinguish the “unlawful acts” from older periods.


Judge Bush’s ruling on the summary judgment motions is considered certain to be appealed by one party or the other to a three-judge panel of the U.S. Circuit Court of Appeals.


Ultimately, the question of government’s right, or lack thereof, to “take” a waterfront owner’s riparian right to enjoy water free of unreasonable pollution may go down as a landmark decision based on the Rivers Coalition lawsuit.


A favorable ruling, in turn, could force authorities to send the water south from the Lake Okeechobee watershed. South is just where Mother Nature directed it for centuries.


Wickstrom is founder of Stuart-based Florida Sportsman Magazine and head of the Rivers Coalition legal defense fund. E-mail: