TALLAHASSEE , Fla. — The Florida Department of Environmental Protection has gone to a federal appeals court after a U.S. district judge last month ruled that the state has violated the Endangered Species Act as manatees face threats in the Indian River Lagoon.
A notice of appeal, sent to the 11th U.S. Circuit Court of Appeals this week, does not detail arguments that department attorneys will make at the Atlanta-based court.
But the agency is challenging a ruling by U.S. District Judge Carlos Mendoza, who sided with the environmental group Bear Warriors United in the case about regulation of wastewater discharges into the Indian River Lagoon. The group argued that discharges led to the demise of seagrass, a key food source for manatees, and resulted in deaths and other harm to the animals.
In his April 11 ruling, the judge wrote that under the Department of Environmental Protection’s regulations, it would take at least a decade for conditions in the northern part of the Indian River Lagoon to start to recover. That area is primarily in Brevard County.
“This is due to the previously and currently permitted discharge of legacy pollutants via wastewater into the north IRL (Indian River Lagoon),” Mendoza wrote. “These legacy pollutants caused the death of seagrasses — the manatee’s natural forage — and the proliferation of harmful macroalgae. Legacy pollutants, as their name suggests, persist in the environment and cause harmful effects long after they have entered the system.”
In a follow-up to Mendoza’s ruling, Bear Warriors United asked him to enter an injunction that would include requiring the state to seek what is known as an “incidental take permit” from federal wildlife officials. That process would include the state developing a conservation plan, attorneys for the group wrote.
Also, the group asked Mendoza to place a moratorium on new residential and commercial construction that would use septic tanks. Such a moratorium would apply in the northern Indian River Lagoon watershed pending the issuance of an incidental take permit, under the group’s proposal. Septic tanks discharge nitrogen, which can cause harmful algae blooms.
“New residential and commercial construction that use (septic tanks) will only exacerbate nitrogen loading into the North IRL,” the group’s attorneys wrote in seeking an injunction. “The court has already held that continuing high levels of nitrogen loading into the North IRL has caused the collapse of seagrasses, resulting in ongoing take of manatees that occupy the North IRL.”
But in a May 6 response, Department of Environmental Protection attorneys pushed back against the group’s requests, saying, for example, that such a construction moratorium would “improperly bind parties” that are not in the case.
The department’s attorneys wrote that Bear Warriors United is seeking an “injunction that, on its face, prohibits anyone from undertaking residential or commercial construction using onsite sewage treatment and disposal systems. Needless to say, the independent landowners and builders whose property rights would be curtailed by such an order are not parties to this action.”
Also, the state’s attorneys argued that the department “has no power under Florida law to prohibit residential or commercial development; that authority is left to local zoning boards. In fact, Florida law specifically authorizes construction using ‘nutrient-reducing onsite sewage treatment and disposal systems’ or similar nitrogen-reducing ‘wastewater treatment systems.’ Certainly, a federal court can enjoin a state official to cease conduct that violates federal law. But it cannot require a state official to affirmatively take actions they have no power to take under state law.”
Mendoza had not ruled on the injunction request as of Friday morning. The notice of appeal involves the underlying judgment he issued last month.
Bear Warriors United filed the lawsuit in 2022, after Florida had a record 1,100 manatee deaths in 2021, with the largest number, 358, in Brevard County. Many deaths were linked to starvation.
The state had 800 manatee deaths in 2022, before the number dropped to 555 in 2023 and 565 in 2024, according to Florida Fish and Wildlife Conservation Commission data. As of May 9, 363 manatees deaths had been reported this year, including 75 in Brevard County.
Manatees are classified by the federal government as a threatened species.
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