Trial Will Decide Whether Florida’s DEP Violated Endangered Species Act, Causing Manatee Deaths

A federal judge has rejected a state attempt to end a lawsuit stemming from manatee deaths in the Indian River Lagoon and said a trial is needed to determine whether the Florida Department of Environmental Protection has violated the Endangered Species Act.

U.S. District Judge Carlos Mendoza issued a 17-page order last week siding with arguments by the environmental group Bear Warriors United that wastewater discharges into the Indian River Lagoon have led to the demise of seagrass and, as a result, the deaths of manatees.




But he said he must determine whether an “ongoing violation” of federal law exists. Mendoza denied a state motion for summary judgment, a request that would have short-circuited a trial.

“As such, the only remaining issue of fact for the jury is whether there is an ongoing risk of manatee takings under FDEP’s (the Florida Department of Environmental Protection’s) regulatory regime,” Mendoza wrote.

Bear Warriors United filed the lawsuit in 2022, contending that the department has not adequately regulated sewage-treatment plants and septic systems, leading to discharges that killed seagrass — a vital food source for manatees — in a northern stretch of the Indian River Lagoon.

Florida had a record 1,100 manatee deaths in 2021, with the largest number, 358, in Brevard County, the focus of the lawsuit. Many deaths were linked to starvation.

The state had 800 manatee deaths in 2022, before the number dropped to 555 in 2023, according to Florida Fish and Wildlife Conservation Commission data. The state had a reported 538 manatee deaths this year as of Dec. 13.




Mendoza in September also denied a state request to dismiss the lawsuit, which names as the defendant former Department of Environmental Protection Secretary Shawn Hamilton.

In ruling last week on certain issues in the case, including that discharges led to killing seagrass and the deaths of manatees, Mendoza granted part of a Bear Warriors United motion for summary judgment — but the issue about ongoing risks remains to be resolved.

In its motion for summary judgment, Bear Warriors United said the department “has known for decades that the septic tanks and wastewater plants it authorizes release human nitrogen” that causes such problems as algae blooms in the lagoon.

“DEP thus authorizes the destruction of the lagoon’s ability to sustain seagrass and other macroalgae which are essential food sources for the manatees’ survival,” the group’s attorneys wrote. “As such, DEP’s regulatory regime for septic tanks and wastewater plants directly and indirectly results in the ongoing unlawful ‘take’ of manatees, in violation of (a section of the Endangered Species Act), and this court must issue an injunction requiring compliance with the ESA (Endangered Species Act) to prevent further take of manatees.”




But in the state’s motion for summary judgment, attorneys wrote that Florida has taken steps in recent years to try to reduce discharges into the lagoon and disputed that it has violated the Endangered Species Act. The motion said the department’s “actions are not the proximate cause of any harm” to manatees, which are classified as a threatened species.

“The record shows that DEP has not authorized or entitled any party to cause a violation of water quality standards,” the state’s motion said. “It has, instead, worked diligently to restore an impaired water. There is no proximate cause. DEP is entitled to judgment as a matter of law because with no dispute of material fact, it has not violated the ESA.”

The lawsuit involves part of the Indian River Lagoon from the Melbourne Causeway in Brevard County to Turnbull Creek in southern Volusia County.

–Jim Saunders, News Service of Florida