A divided federal appeals court Tuesday refused to halt a district judge's order that requires the Florida Department of Environmental Protection to take steps to protect manatees in the northern Indian River Lagoon, including temporarily preventing new septic tanks in the area.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, rejected the department’s request for a stay of an order issued last month by U.S. District Judge Carlos Mendoza. The stay, if granted, would have put Mendoza’s order on hold while an underlying appeal plays out.
Mendoza in April ruled the department violated the federal Endangered Species Act in the northern Indian River Lagoon, which is primarily in Brevard County. He followed with the May order, an injunction that included a moratorium on constructing and installing septic systems in a northern Indian River Lagoon watershed and requiring establishment of biomedical-assessment and supplemental-feeding programs for manatees in the area.
The environmental group Bear Warriors United in 2022 filed the lawsuit against the department, arguing, in part, that wastewater discharges into the lagoon led to the demise of seagrass, a key food source for manatees, and resulted in deaths and other harm to the animals.
The appeals-court panel decision Tuesday cited what are known as manatee “takings” because of water-quality problems.
“The district court found that FDEP’s (the department’s) current wastewater regulations prolong manatee takings: it found a clear, definitive causal link between the FDEP’s current wastewater regulations, the water pollution that is killing manatees’ primary food source and is creating harmful algae blooms, and the length of time over which manatees will continue to be harmed. … We see no likely clear error in that finding,” said the decision, shared by Judges Robin Rosenbaum and Jill Pryor.
But Judge Britt Grant dissented, writing that Mendoza’s injunction “is infirm in several respects and raises many serious questions about the scope of federal judicial power.”
“The district court below ordered the Florida Department of Environmental Protection to stop issuing sewage and disposal system permits near Florida’s North Indian River Lagoon, and to establish from whole cloth (and in a matter of days) a program for assessing, feeding, and monitoring manatees and their habitat — a task that agency has neither the expertise nor the authority to complete,” Grant wrote.
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A key part of Mendoza’s injunction calls for the state to seek what is known as an “incidental take” permit from the U.S. Fish and Wildlife Service. That process would include the state developing a conservation plan, which could provide “permanent protection and management of habitat for the species,” according to information about such permits on the federal agency’s website.
While the incidental-take permit request is pending, Mendoza ordered the department to not issue permits for constructing and installing septic systems in the area and required the other steps about a biomedical assessment and supplemental feeding. The septic-tank moratorium is slated to start July 17, while Mendoza ordered the assessment and feeding requirements to take effect Tuesday.
Bear Warriors United filed the lawsuit 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 Friday, 414 manatee deaths had been reported this year, including 85 in Brevard County, the most in any county.
Manatees are classified by the federal government as a threatened species.
In seeking the stay of Mendoza’s injunction, the department raised a series of issues, including targeting the septic-tank moratorium. Septic tanks discharge nitrogen that can cause harmful algae blooms in waterways.
“The indefinite moratorium on the construction of new septic systems further threatens to impede commercial and residential development in the state,” the department’s motion for a stay said. “Florida law specifically authorizes construction using ‘nutrient-reducing onsite sewage treatment and disposal systems’ or similar nitrogen-reducing ‘wastewater treatment systems.’ And the third-party property owners and developers affected by the court’s decree have no ready means to challenge this moratorium, as they are not parties to this action (the lawsuit).”
But Mendoza wrote in his April ruling that under the department’s regulations, it would take at least a decade for conditions in the northern Indian River Lagoon, which also goes into Volusia County, to start to recover.
“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.”
