Army Corps of Engineers sued over St. Lucie River pollution

By Rachel Simmonsen

Palm Beach Post Staff Writer

Friday, November 10, 2006

Activists for the St. Lucie River sued the federal government Thursday, claiming the U.S. Army Corps of Engineers has violated their property rights by polluting the waterway with massive discharges from Lake Okeechobee.

The plaintiffs, recruited by the Rivers Coalition Legal Defense Fund, are owners of 22 properties along the river's North and South forks, as well as the area that stretches between the fork and the St. Lucie Inlet. The lake discharges, they argue, have limited their ability to fish, swim and boat in the river.

"They're dumping toxic, dirty water, silt material, pesticides, organic phosphates on my property," said Bob Paré, a doctor and Sewall's Point resident who is a plaintiff in the case. "I pay a premium to be where I am, and I think they're seriously taking away my property rights and value by the continual pollution."

At a meeting Thursday at Indian RiverSide Park in Jensen Beach, about 150 river activists applauded news of the lawsuit, waving signs with skulls and crossbones and messages like "Save our river, stop the discharges."

"Today is a historic day for the citizens of Martin County and the citizens of the Treasure Coast," said Leon Abood, coalition chairman. "The days of pandering to special interest groups, which are a minority, at the expense of the citizen majority will soon come to an end."

The lawsuit, filed in the U.S. Court of Federal Claims in Washington, could become a textbook case for law students, said Karl Wickstrom, a member of the Rivers Coalition. The coalition consists of about 40 civic, business and recreation groups aiming to restore the St. Lucie and Indian rivers.

Coalition members spent a year developing the legal strategy, which hinges on constitutional property rights rather than environmental laws, from which the corps has statutory immunity, said Ted Guy, a lawyer who is a plaintiff and member of the Rivers Coalition.

Instead, plaintiffs are relying on the Fifth Amendment, which protects property rights, and state law, which protects the rights of owners of waterfront properties, said Sasha Nel, an attorney with the Washington firm Marzulla & Marzulla, which is representing the plaintiffs. "The government can't take those rights away without paying just compensation."

The argument for property rights was successful in a similar environmental case in New Hampshire more than two decades ago, though it was tried in a different court system, Nel said.

Plaintiffs in this case are seeking $50 million, the combined market value of their properties, but say they will give any money won in the suit to the Rivers Coalition. The suit targets the corps because the agency controls discharges from Lake Okeechobee, Nel said.

Activists long have blamed the freshwater discharges for polluting the river and disrupting the brackish balance of the estuary, which is crucial for fish, oysters and sea grass. Discharges also have been linked to toxic algae blooms and elevated levels of bacteria, both of which have prompted occasional warnings by local health officials to avoid the water.

Coalition members have argued that more water from the lake should flow south, as nature intended. They said it would flow that way if the corps were not influenced by sugar growers, who use much of the land south of the lake. Taking water managers to court may be the only way to restore the St. Lucie River, they said.

"I've been talking for 15 years," said Kevin Henderson, a member of the coalition and plaintiff in the suit. "It's time for action."

A corps spokesman declined to comment on the lawsuit.

The suit is expected to cost between $350,000 and $500,000, Abood said. The coalition has raised about $150,000.