The Federal Circuit Court of Appeals has affirmed the dismissal of a Clean Water Act (CWA) citizen suit filed by 23 Florida property owners alleging that the discharge of polluted water by the U.S. Army Corps of Engineers (Corps) from Lake Okeechobee into the St. Lucie River constituted a “taking” of their riparian rights. Mildenberger v. United States, No. 10-5084 (Fed. Cir. 6/30/11).
Ruling that the lawsuit was not filed within the six-year statute of limitations, the court also found that plaintiffs failed to establish that Florida law recognizes compensable property interests in riparian rights. The court noted that it has been common knowledge for decades that the Corps released polluted water from Lake Okeechobee into a system of canals, levees and storage areas as part of its flood-control responsibilities. The harms plaintiffs alleged were foreseeable and manifested before 2000, according to the court.