Stuart lawsuit against Army Corps proceeding as city, commander can can't reach agreement

STUART — City officials and the Army Corps of Engineers failed to reach an agreement at a meeting Tuesday on how Lake Okeechobee should be operated.

So City Attorney Michael Mortell is drafting a lawsuit claiming the Corps is violating federal law by holding water in the lake during the current dry season and increasing the risk of discharges that could harm the ecosystem of the St. Lucie River and health of the people living around it.

"We didn't reach any agreement or settlement," Stuart Commissioner Merritt Matheson, who proposed the lawsuit and attended Tuesday's meeting with the Corps, said Tuesday.

The Stuart City Commission will consider going forward with the lawsuit at a meeting at 5:30 p.m. Monday at City Hall, 121 S.W. Flagler Ave.

Matheson said he won't decide whether to pursue the lawsuit "until I think about it over the weekend and talk about it with my fellow commissioners Monday."

The city taking on the Army Corps, Matheson said, "would be like David versus Goliath."

Mortell said Wednesday the Corps' action violates the National Environmental Policy Act, known as NEPA, which calls for government agencies to "use all practicable means and measures ... to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social economic and other requirements of present and future generations of Americans."

Managing Lake O in a way that makes discharges likely, Mortell said, "is not a condition under which man and nature can exist in productive harmony."

The city is looking for a "stop-gap" solution to preventing discharges for the next couple of years, Mortell said, until the Corps' new guidelines for lake operations, known as the Lake Okeechobee System Operating Manual, or LOSOM, goes into effect.

Hopefully, Mortell said, LOSOM will include guidelines for operating Lake O at a lower elevation that will help prevent the need for discharges in the future.

In the meantime, the city wants the Corps to do this year what they did last year: Bring Lake O's elevation down to around 11 feet by June 1, the start of the summer rainy season.

When that happened last year, the lake was able to rise more than 3 feet over the summer without risking a breach of the Herbert Hoover Dike surrounding it, and without discharging water to the St. Lucie to release pressure on the dike.

This year the Corps expects, based on weather forecasts and how much water is being released to the south for farm irrigation and west to prevent saltwater intrusion in the Caloosahatchee River estuary, the lake elevation to be around 12 feet on June 1. 

More: Corps to focus on retaining water in Lake Okeechobee, colonel says

"We know that when the lake is high, 12 feet elevation or more, at the beginning of the summer we're almost sure to have discharges by the end of summer," Mortell said. "We also know that when the lake is low, below 11 feet elevation, we're not likely to get discharges."

The Corps has the flexibility to lower the lake and prevent discharges, "and NEPA tells them to use that flexibility,' Mortell said. "Last year is telling us what to do this year."

It's not that simple, replied Corps spokesman John Campbell.

Lowering the lake in 2019 was intended to be a one-time or once-every-several-years occurrence designed to help spur the growth of plants in the lake, which had suffered from consistently deep water over several previous years.

More:Corps to lower Lake Okeechobee to prompt plant growth

"The conditions in the lake aren't the same this year as last year," Campbell said, "so we don't have the operational flexibility we had last year. That tool is meant to be used infrequently."

The Corps doesn't manage Lake O "to any one purpose," Campbell said. "Congress has told the Corps to balance the purposes. That can be pretty hard when there are parties with diametrically opposed purposes."

All those purposes can be met with a lower lake level, Mortell countered.

No matter how low the lake gets, Mortell said, "people are going to get the water they need. Last year taught us that we can do both: prevent discharges and get people the water they need."

Last summer the U.S. Sugar Corp. sued the Corps, claiming the lake got so low water supply for crop irrigation was threatened. The Corps responded it had the authority to take the lake lower than usual. A federal judge dismissed the lawsuit in December.

"I plan to use the Corps' own pleadings in that case to prove that they can do it, that they have the authority to lower the lake, in this case," Mortell said.

Tyler Treadway is the environment reporter for TCPalm. Contact him at tyler.treadway@tcpalm.com or 772-221-4219.