A federal appeals court will speed up consideration of a legal battle about whether the Florida Department of Environmental Protection needs to take additional steps to protect manatees in the Indian River Lagoon.

Embry Kidd, a judge on the 11th U.S. Circuit Court of Appeals, issued an order in mid August granting a request by the department to “expedite” arguments in the case.

The department filed an appeal in May after U.S. District Judge Carlos Mendoza ruled that the agency had violated the Endangered Species Act, and ordered more efforts to protect manatees in the northern Indian River Lagoon, which is primarily in Brevard County.

Among other things, Mendoza ordered a moratorium on constructing and installing septic systems in the area.

The Florida Home Builders Association, the Florida Onsite Wastewater Association and the National Onsite Wastewater Recycling Association had urged the 11th U.S. Circuit Court of Appeals to overturn Mendoza’s decision that included placing a moratorium on constructing and installing septic tanks around the northern Indian River Lagoon, which is primarily in Brevard County.

The lawsuit, filed by the environmental group Bear
Warriors United, argued, in part, that sewage discharges
into the lagoon led to the demise of seagrass, a key food
source for manatees, and resulted in starvation deaths
and other harm to the animals.

Homebuilders and septic-system industry groups countered in a recent brief that Mendoza’s decision “threatens to halt significant economic activity in the Indian River Lagoon watershed.” It also suggested the ruling could have broader implications.

“The threat of ESA (Endangered Species Act) liability for state and local governments who issue permits for actions alleged to take listed species may slow down the permitting process, resulting in increased burdens and delays for the government and regulated parties,” the brief said. “The district court’s decision may cause state and local governments to delay permitting decisions or even deny permits for fear some downstream effect beyond their regulatory authority or control will result in ESA liability.”

But in ruling last spring, Mendoza said that under the Department of Environmental Protection’s regulations, it would take at least a decade for conditions in the northern Indian River Lagoon 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.”

Mendoza added, “What all this means is that FDEP would have to reduce nutrients entering the IRL to a low enough level and for a long enough time for nutrients to cycle out of the system to allow seagrasses to return at significant levels. Conversely, if FDEP does not reduce nutrient levels, there will continue (to) be harmful algal blooms and, in turn, no seagrass recovery and more manatee takings.”

As of July 25, Florida totaled 484 manatee deaths this year, with the largest number, 96, in Brevard County, according to Fish and Wildlife Conservation Commission data.

In July the department asked to expedite the appeal, saying it is “subject to a permanent injunction that it contends is imposing ongoing irrecoverable monetary costs on the state as well as injuries to its sovereign state interests.

The mid August order set a briefing schedule that included a final brief being filed by Oct. 17.

It also directed that the case be scheduled for arguments on the “next available” calendar with a vacancy after briefing is finished.