Case Document 1 Filed 12/24/13 Page 1 of 19 Page|D 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION gm; 3 FRIENDS OF MINERAL SPRINGS, INC, a Florida NOI fOr Profit Cerperatien, and JULIETTE JONES. as an Individual Citizen, Plaintiffs, vs. CASE NO. GINA MCCART1-IY, AdministratDr._ U.S. ENVIRONMENTAL LIEUTENANT GENERAL BOSTICK. Chief Engineer, UNITED STATES ARMY CORPS OF SARASOTA COUNTY, Florida, a pelitieal subdivisien Of the State Of Flerida; CITY OF NORTH PORT. Flerida. -.1 Florida municipality; and STATE OF FLORIDA, DEPARTMENT OF STATE. Division Of Historical Resources, Defendants. I COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, FRIENDS OF WARM MINERAL SPRINGS, INC. and JULIETTE JONES (collectively the "Friends"), by and 'through their undersigned eeunsel. Iile this Complaint, and state as follows: OF THE CASE 1. The Friends seek deelaiatery and injtmetive relief, civil penalties and litigation expenses under the federal citizen suit prOvisiOn Ofthe Clean Water Aet (CWA). 33 USC. Case Document 1 Filed 12/24/13 Page 2 of 19 Page|D 2 1365. This is a citizen enforcement action brought by the Friends on behalf of themselves, their members and the general public against Defendants, SARASOTA COUNTY (the "County"), the CITY OF NORTH PORT, Florida (the "City"), and STATE OF FLORIDA, DEPARTMENT OF STATE, DIVISION OF HISTORICAL RESOURCES and Lieutenant General Thomas Bostick, Chief Engineer, UNITED STATES ARMY CORPS OF ENGINEERS ("the Corps") and Gina McCarthy, Administrator of the U.S. ENVIRONMENTAL PROTECTION AGENCY for allowing illegal, unpermitted "fill" and "pollutants" to remain in the waters of the Warm Mineral Springs below the Ordinary High Water Line (OHWL) in violation of Section 404 of the Clean Water Act 33 U.S.C. 1251, et seq. As owner and operator of the Warm Mineral Springs ("the Springs" or the City and the County are maintaining and have allowed unpermitted fill material to remain in WMS without a federal CWA ?404 permit. This is a "citizens suit" brought under 33 U.S.C. 1365, which allows citizens to bring suit based on an unlawful act under 33 U.S.C. 131 which prohibits the discharge of pollutants except in compliance with specific sections of the Clean Water Act, including sections 402 and 404. JURISDICTION AND VENUE 2. This is a federal civil suit brought under the citizen suit provisions of the Clean Water Act against the defendants for ongoing unpermitted fill violations of Section 404 of the CWA, 33 U.S.C. 1251, et seq. 3. This Court hasjurisdiction over the parties and subject matterjurisdiction pursuant to 50S(a)(l)(A) of the CWA, 33 U.S.C. l36S(a)(l)(A), and 28 U.S.C. 133] (an action for declaratory and injunctive relief arising under the Constitution and laws of the United States). Page 2 of I9 Case Document 1 Filed 12/24/13 Page 3 of 19 Page|D 3 4. On October 10, 2013, the Friends gave written notice of the violations of the CWA and of the Friends' intent to file suit with regard to those violations to Sarasota County, the City of North Port, the Administrator of the U.S. Environmental Protection Agency the Regional Administrator of Region 4 of EPA, the United States Army Corps of Engineers, and the State of Florida, Department of State, Department of Historical Resources, pursuant to 33 U.S.C. l365(b). A true and correct copy of the notice letter is attached as Exhibit A and the allegations in Exhibit A are incorporated herein by reference. 5. More than sixty days have passed since these notices were served on the County, the City and the federal agencies. 6. The Friends are infonned and believe, and thereon allege, that neither the Corps nor the EPA has commenced, nor is diligently prosecuting, a civil or criminal action under the CWA with regard to the violations reported in the 60 day notice. 7. This action is not barred by any prior administrative penalty under Section 309(g) ofthe CWA, 33 U.S.C. 13 l9(g). 8. Venue is proper in the Middle District of Florida, Tampa Division, under 505(c) of the CWA, 33 U.S.C. l365(c), and Local Rule because Sarasota County, the City of North Port and Warm Mineral Springs (the location of the fill pollution) are located within the Middle District of Florida in North Port, Florida. In addition, venue is proper in the Middle District of Florida, under 28 U.S.C. 1391 because County, City offices are located within the Middle District of Florida. Defendants Page 3 of l9 Case Document 1 Filed 12/24/13 Page 4 of 19 Page|D 4 9. Defendant Sarasota County is a political subdivision of the State of Florida and is the owner and operator of the Warm Mineral Springs, which it owns jointly with the City of North Port Florida. 10. Defendant North Port is a Florida municipality located in southern Sarasota County and the joint owner and operator of the Springs, which it owns jointly with Sarasota County. 1 l. Defendants CITY and COUNTY have the ability and authority and resources as current owners to remedy the violations. 12. Based on information and belief, the STATE OF FLORIDA, DEPARTMENT OF STATE, DIVISION OF HISTORICAL RESOURCES, then-acting State Underwater Archaeologist Wilbum "Sonny" Cockerell, who may have also been employed as an archaeologist at Florida State University, who over a period of years as Principal Investigator was personally conducting, supervising and directing underwater archaeological exploration activities in the Springs' directed the placement of at least some of the unpermitted fill and pollutants within the waters of Warm Mineral Springs, including plastic sheets that have been allowed by the current owners City and County to remain, migrate and interfere with the natural water flow from spring vents, eroding and threatening the collapse and submergence of important archaeological geologic submerged shelf in whole or in part within Warm Mineral Springs and this ongoing, current violation is occurring on a daily basis. 13. Based on information and belief, additional Defendants in the chain of title not yet known may have also deposited unpermitted fill material, including offsite sand brought to the Cockrell, Wilbum A. (1987). "The Warm Mineral Springs Archaeological Research Proiect: Current Research and Technological Applications". In CT Mitchell. Diving for Science 1986: proceedings of the American Academy of Underwater Sciences 6th Annual Scientific Diving Symposium, October 31-November 3, 1986. Tallahassee, Florida, USA. American Academy of Underwater Sciences. pp. 63-68. Page 4 of I9 Case Document 1 Filed 12/24/13 Page 5 of 19 Page|D 5 Springs in one or more dump truck(s) each containing at least eight 8 cubic yards of offsite sand in each dump truck into the Springs as unpermitted fill in the Springs along the bathing area in the water on the benthic areas located on top of the submerged geologic shelf, smothering submerged aquatic vegetation and geological outcroppings and continuing to interfere and adversely affect the natural condition and ecology of the Springs. 14. Lieutenant General Thomas Bostick, Chief Engineer, UNITED STATES ARMY CORPS OF ENGINEERS and Gina McCarthy, Administrator of the U.S. ENVIRONMENTAL PROTECTION AGENCY are charged with enforcement of the Clean Water Act and have allowed illegal unpermitted "fill" and "pollutants" to remain in the waters of the Warm Mineral Springs below the Ordinary High Water Line (OHWL) in violation of Section 404 of the Clean Water Act 33 U.S.C. I251, et seq. Plaintiffs' 15. Plaintiff Friends of the Warm Mineral Springs is a Florida Corporation, duly incorporated under Florida Statutes Chapter 617, (relating to Florida Not for Profit Corporations), in good standing with the State of Florida. 16. The Friends are dedicated to educating people about restoring and conserving the fragile ecosystem and historical resource of the Springs and to preserve and restore these same resources for future generations. 17. The director-members of the Friends of Warm Mineral Springs work, swim, SCUBA dive, study, and recreate in Warm Mineral Springs in an effort to observe the natural conditions of geologic formations, archeological, paleontological, and ecological resources in the Springs in their natural condition, which is adversely impacted by the unpermitted fill which obscures, covers and is causing erosion of the Springs shelf. The director-members of Friends Page 5 of I9 Case Document 1 Filed 12/24/13 Page 6 of 19 Page|D 6 bathe, swim and recreate in and around the Springs. The director-members of Friends visit, use and enjoy the Springs and have done so on hundreds of occasions, photograph and study the Springs ecology, hydrology and karst geological systemz, identify organisms including algae, plants and wildlife in the unique, mineralized Springs, study cultural and archeological history of the Springs, and endeavor to educate the public regarding science related to the ecology and hydrology of the Springs, and also enjoy the Springs for recreation and to otherwise use and enjoy the Springs. All of these activities are adversely affected and diminished by the presence and migration of the unpermitted fill, including the plastic sheeting and offsite sand placed of the benthic areas of the Spring, which obscures, buries, and smothers such resources. 18. The Friends of Warm Mineral Springs' mission is "to provide a focal point for education and the understanding of springs ecology and the ecology of Warm Mineral Springs located in North Port, Florida. The Friends of Warm Mineral Springs will support Springs research efforts to develop a quantitative and qualitative baseline of ecological data for Warm Mineral Springs to educate the public as to existing environmental conditions and trends over time. A second important goal of the Friends is to gather, collect and distribute the best available data and infonnation about the ecology and environmental condition of the Springs to the public, including any adverse changes to the ecology of the area. groundwater, and surface waters which run from the Springs, which provide a winter habitat for the West Indian Manatee, and surrounding heritage areas of archaeological, ecological and cultural and historic importance. A third important goal of the Friends is to educate the public concerning the Springs as an economic resource compatible with healthy Florida springs, which directly and indirectly support ecological land use practices to reduce pollution affecting the springs and to maintain historic spring flows 2 See, Rupert, Frank R. (1994). "The geology of Warm Mineral springs, Sarasota County, Florida". Tallahassee, Florida: Florida Geological Survey. Page 6 of I9 Case Document 1 Filed 12/24/13 Page 7 of 19 Page|D 7 that support healthy spring, plant and animal communities. A fourth important goal of the Friends is to increase public awareness of the threats to the Springs and the need to fund basic springs science commensurate with the documented importance of healthy Florida springs to maintaining economic health of the area. The Friends of Warm Mineral Springs will foster the development of science based educational efforts to restore. protect and preserve this spring." 19. Plaintiff Juliette Jones is a director-member of Friends and resides on property located adjacent to the Springs and personally and individually uses the Springs when open to the public for swimming in the warm mineral spring waters which she believes to have a healing effect on her personally. Juliette Jones visits, uses and enjoys the Springs, and has done so on hundreds of dates over many years. In addition, Jones studies science related to the ecology and hydrology of the Springs and enjoys the Springs for recreation and to otherwise use and enjoy the Springs. Juliette Jones also advocates for restoration preservation and protection of Warm Mineral Springs. 20. The Defendants' COUNTY, CITY and Florida unlawful actions adversely affect Plaintiffs' organizational interests, and diminish Plaintiffs' recreational use and enjoyment of the Springs in their natural condition. Plaintiffs have health, recreational, scientific, enviromnental, aesthetic, educational, conservation, and/or other interests in the Springs and the waters that flow from the Springs. These interests have been, are being, and will continue to be adversely affected by Defendants' violations of the federal CWA, Section 404 of the Clean Water Act 33 U.S.C. 1251, ea' seq. The unpermitted fill has not been removed and continues to migrate downward into deeper areas of the Springs. Page 7 of I9 Case Document 1 Filed 12/24/13 Page 8 of 19 Page|D 8 22. The unpermitted fill violation has not ceased, and continues to cause erosion of the geological shelf and these violations and impacts are likely to occur in the future unless and until the unpermitted fill is removed from the Springs. 23. This ongoing damage significantly affects and diminishes Plaintiffs' use and enjoyment of the Springs and impairs their ability to study, observe and enjoy the recreational, archaeological, paleontological, ecological resources of the Springs. 24. Defendant DOHR's placement of, and defendants' CITY, COUNTY's failure to remove, illegal fill in the natural environment used and enjoyed by the Friends and the public directly and indirectly harms the interests of the Friends and the public. First, defendants did not have an active Section 404 permit at any time. Then, acting without a permit, they deposited fill throughout the Springs and allowed this fill to migrate toward the bottom of the Springs, causing erosion of the geological shelf that provides the recreational area used for bathing and protects the archaeological and paleontological resources present in the Springs. Thus, the interests of the Friends have been, are being, and will continue to be adversely affected by Defendants' failure to comply with the CWA. These injuries are significant, actual, concrete injuries suffered by the Friends and its Director-members, and the causal connection is fairly traceable to Defendants' illegal placement and maintenance of unpermitted fill material in the Springs and would be redressed by the relief sought herein. The Friends have no other adequate remedy at law. 25. Plaintiffs seek mandatory injunctive relief, including removal of plastics and drums and offsite sand placed in Warm Mineral Springs that have been allowed to migrate and spill deeper into the Spring and are adversely affecting benthic areas of the Spring, and are eroding and damaging the geological structural integrity of submerged shelf within Warm Mineral Springs as unpermitted dredge and fill activities. Page 8 of [9 _Case Document 1 Filed 12/24/13 Page 9 of 19 Page|D 9 Federal Clean Water Act 26. The Clean Water Act was enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. l251(a). It prohibits the discharge of any pollutant into the waters of the United States, including natural springs hydrologically connected to the subterranean aquifers, connected and flowing to surface waters of the United States without a permit. 33 U.S.C. l3l 27. The term "pollutant" includes "dredge spoil," "solid waste," "garbage," "wrecked or discarded equipment, rock, sand, cellar dirt and waste discharged into water." 33 U.S. C. 1362(6)(emphasis added). 28. Section 404 of the CWA authorizes the Army Corps of Engineers to issue permits for the discharge of "dredged or fill materials" into waters of the U.S., but only if stringent regulatory requirements are satisfied. 29. The term "fill material" is defined as "material hav[ing] the effect changing the bottom elevation of any portion of a water of the United States." 33 C.F.R. "Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction and materials used to create any structure or infrastructure in the waters of the United States." 33 C.F.R Section 404 of the CWA authorizes the issuance of permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. l344(a). 30. There are two sets of regulations implementing the Corps' 404 permit one that was promulgated by the Corps itself, see 33 C.F.R. Parts 320-330, and one that was promulgated by the Environmental Protection Agency called the "404 Guidelines." See 40 C.F.R. 230.1-230.30. Page 9 ofl9 Case Document 1 Filed 12/24/13 Page 10 of 19 Page|D 10 31. Under the Corps' regulations, an applicant for a 404 permit must include in the same permit application all activities it plans to undertake that are "reasonably related" to the project under review, and must also provide a complete description of such activities "sufficient for public notice." 33 C.F.R. 325. 32. When the Corps has received a complete application, it must issue a public notice soliciting comments from interested persons as to the advisability of granting the permit. 33 U.S. C. 1344(a); 33 C.F.R. 325.3. Because the public notice is the "primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest," the notice must include "sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment." 33 C.F.R. The notice must also include a description of all proposed activities," id. at and all "available information which may assist interested parties in evaluating the likely impact of the proposed activity." Id. at 3). 33. The Corps' regulations provide that public hearing will be held in connection with the consideration of a [dredge and fill permit] whenever a public hearing is needed for making a decision on" the permit application. 33 C.F.R. Requests for a public hearing "shall be granted, unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing," id. at but case of doubt, a public hearing shall be held." 33 C.F.R. 327.4(c) (emphasis added). 34. The EPA's "404 guidelines," which also govern the issuance of dredge and fill permits, 40 C.F.R. Part 230; 33 C.F.R. establish a strong presumption against Page 10 Case Document 1 Filed 12/24/13 Page 11 of 19 Page|D 11 permitting any damage to springs, because Springs are "difficult-to-replace" resources. Id. at? 35. The 404 guidelines declare that "[t]rom a national perspective, the degradation or destruction of special aquatic sites. . . is considered to be among the most severe environmental impacts," and that "[t]he guiding principle should be that degradation or destruction of [springs] may represent an irreversible loss of valuable aquatic resources." 40 C.F .R. 230. 1 (emphasis added). 36. Therefore, under the CWA, "[f]ill material should not be discharged into the aquatic ecosystem Warm Mineral Springs], unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern." Id. 230. 1 (emphasis added). 37. The 404 guidelines further provide that the Corps may not issue pennits for filling springs if any "practicable" alternatives are available. More specifically, "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.P.R. 38. To be "practicable," an alternative need not accomplish the project proponent's objectives to the same extent and in the same manner as the specific activity proposed by the permit applicant. Rather, an altemative is deemed practicable "if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes," and it may include the discharge of dredged or fill material in other locations. Id. at? Page II ofl9 (_3ase Document 1 Filed 12/24/13 Page 12 of 19 Page|D 12 39. Under the EPA's guidelines there is a very strong presumption that there are practicable altematives to the discharge of fill to "special aquatic sites"- springs like WMS- if the project "does not require access or proximity to or siting within" a spring "to fulfill its basic purpose." Id. at The heavy presumption that the project should not be permitted may only be rebutted if the applicant "clearly demonstrate[s]" that there is no other practicable alternative that would avoid or minimize the wetlands losses. Id. "In addition, where a discharge is proposed for a special aquatic site, all practicable altematives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise." ld. (emphasis added). 40. In addition, "no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States." 40 C.P.R. 41. The guidelines further specify that "effects contributing to significant degradation considered individually or collectively, include: Significantly adverse effects of the discharge of pollutants on human health or welfare, including but not limited to effects on municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites." Id; see also id. ("Such effects may include, but are not limited to, loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients [or] purify water"). 42. The 404 guidelines further provide that, even if the Corps finds that there is no practicable altemative for a proposed project, "no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem." 40 C.F.R. Page I2 ofl9 Case Document 1 Filed 12/24/13 Page 13 of 19 Page|D 13 43. The regulations further specify "[s]ome of the ways" to minimize the effect of the discharge, including, for example, "confining the discharge to minimize smothering of organisms." 40 C.F.R. 230.70. 44. Sections 505(a) and 505(1) of the CWA provide for citizen enforcement actions against any "person," including individuals, corporations. or partnerships, to prosecute the unpermitted discharges of "pollution" under 301 and 402 and unpermitted "fill" under ?404 of the CWA. 33 U.S.C. l365(a) (I) and ?l362(5); and? 1344. Continuing Violations 45. In 1996, the United States District Court for the Middle District of Florida held in United States v. Reaves, an enforcement action under the Clean Water Act, that by allowing fill to remain in situ, the unpermitted discharge of fill materials into wetlands was a continuing violation for as long as the fill remained and that the federal statute of limitations on the govemment's claims for either civil penalties or injunctive relief had not yet run. United States v. Reaves, 923 F. Supp. 1530 (M.D. Fla. 1996). 46. Warm Mineral Springs are surface waters and wetlands of the United States. WMS is a unique warm mineral spring of a state, national and international interest located in North Port, Florida, approximately one mile north of U.S. 41 in Sarasota County. 47. The Springs are primarily fed by warm water deep vents located over 200 feet below the surface of the water and shallow cool water spring vents closer to the surface. 49. The Springs discharge millions of gallons of warm mineralized water a day into a large natural pool that flows directly and continuously as surface water into the Myakka River and then the Gulf of Mexico. Page 13 ofl9 Case Document 1 Filed 12/24/13 Page 14 of 19 Page|D 14 48. Flow fi-om WMS was estimated in 1972 at 9 million gallons per day, and under current estimates of WMS flow ranges from 2.75 to 3.5 million gallons per day. Flow from WMS is directly connected to navigable waters of the United States as surface waters flowing from WMS to the Myakka River and to the Gulf of Mexico. 49. Warm Mineral Springs is a warm water mineral springs that is an important geological, enviromnental, cultural and archeological site, containing Native American indigenous skeletal remains and artifacts. 50. WMS was added to the United States National Register of Historic Places on November 28, 1977 as an archeological, cultural resource. The wamt water temperature of the WMS flow attracts West Indian Manatees to the warm surface waters originating from WMS especially in winter months with colder ambient water temperatures. 52. For decades, WMS has attracted intemational visitors from Canada, European nations and other countries, as well as United States and Florida citizens seeking to dive the WMS and to bathe in the waters of WMS for perceived wellness benefits from bathing in the warm spring water in the Springs. 53. On December 20, 2010, the City and County jointly purchased the Springs and they are currently jointly owned and operated by the City of North Port and Sarasota County. 54. Warm Mineral Springs was purchased in part with SARASOTA COUNTY "park" funding for preservation of natural resources and for parks and recreation, including swimming in the natural springs. See Sarasota County Ordinance No. 2005-049 describing funding source for the Neighborhood Parkland Program and Resolution 2005-155 describing criteria used for this acquisition program. A Memorandum of Understanding between the COUNTY and its co-owner, Page 14 01?19 Case Document 1 Filed 12/24/13 Page 15 of 19 Page|D 15 the CITY OF NORTH PORT, reflects that the Warm Mineral Springs was purchased jointly by the City and County. 55. Plaintiffs' 60 day notice included photos of the plastic sheeting placed on benthic areas within the Springs, offsite sand of more than one dump truck(s) each containing more than 8 cubic yards offsite sand into the waters of the Springs, and at least one fifiy-five (55) gallon drum that were all placed on the bottom benthos of the Springs below the Ordinary High Water Line (OHWL) without permits and remain in WMS as of this date. 56. Defendants have knowingly allowed this unpermitted plastic sheeting, offsite sand, and fifiy--five (55) gallon drums to remain in the Springs below the Ordinary High Water Line (OHWL) despite being made aware of such plastic, sand and drums in photographs that were provided to the City and County. 57. Plastic sheeting, offsite sand, and fifty-five (55) gallon drums are "pollutants" as that term is defined in the CWA ?502, 33 U.S.C. 1362 and "fill material" as that term is defined in 33 C.F.R. 58. Defendants' maintenance of and failure to remove the plastic sheeting, offsite sand, and fifty-five gallon drums in the Springs is filling in violation of the CWA. 59. Under CWA 404, Defendants are required to obtain a pennit from the Corps before placement of plastic sheeting, offsite sand, and fifty-five (55) gallon drums in waters of the United States. 60. These specific violations occur every day that Defendants do not have a CWA 404 permit for the fill. 61. The unpermitted fill violations of 404 have continued for many years, months and days, including at least sixty (60) days of "knowing" violations that have occurred since the Page 15 ofl9 Case Document 1 Filed 12/24/13 Page 16 of 19 Page|D 16 60 day notice of violation including photographs of the plastic sheeting, offsite sand, and fifty-five (55) gallon drums in WMS were officially served on Defendants; however the photographs of the fill and pollutants were presented to the City and County many months prior to service of the 60 day notice. 62. These violations will continue to occur each day until the plastic sheeting, offsite sand, and fifty-five (55) gallon drums is removed or a permit is obtained. 63. By failing to obtain the necessary fill permit to place plastic sheeting, offsite sand, and fifiy-five (55) gallon drums in waters of the United States as required under 404 of the CWA, Defendants are in knowing violation of 404 of the CWA. 64. The unauthorized activities maintained by the Defendants in the Springs has resulted in the destruction and elimination of submerged aquatic habitat, and sand has migrated across and down the underwater shelf within the Springs causing erosion of the underwater shelf (see photos enclosed with the 60 day notice) containing archeological resources including fossils, native American indigenous human remains and artifacts in WMS, and adversely affects submerged aquatic vegetation and natural spring flow. 65. By maintaining fill without a permit, Defendants are in violation of the CWA and are subject to a civil penalty for each violation for each day. PRAYER FOR RELIEF Wherefore, the Plaintiffs respectfully request that this Court grant the following relief: A. A declaration that the Defendants CITY and COUNTY are in violation of 404 of the CWA, 33 U.S.C. ?1251 ea'. seq. B. A declaration that the Defendants CITY and COUNTY are in violation every day for each violation, for allowing unpermitted pollutants and fill to remain in the Springs. Page l6of|9 Case Document 1 Filed 12/24/13 Page 17 of 19 Page|D 17 13. H. A tetnporary and permanent in_iur1ction prohibiting the Defendants CITY and COUNTY from placing or allowing fill in the Springs without a CWA ?r-104 permit. . A mandatory injunction ordering the Defendants CITY and COUNTY to perform a site assessment to delineate the vertical and horizontal extent of unpermitted till and pollutants. remove the unpermitted till and pollutants to restore the Springs to the condition oi' the Springs prior to placement of the unpermitted fill. An order requiring Delcndants CITY and COUNTY to pay civil penalties. including a penalty per day per violation for each of the violations occurring. pursuant to and 5U5{a) oi' the CWA, 33 and 1365(a), and the Adjustment of Civil Monetary Penalties lior Inflation, 40 C.P.R. 3? l9.-4. Retain over this matter until such time as the Defendants CITY and COUNTY have come into compliance with the prohibitions, terms, and conditions of the CWA and its permits. Award the Plaintiffs' costs (including reasonable attorneys fees, expert witness fees and consultant lees) as authorized by the CWA, 33 U.S.C. 1365(d) Such other and further relief as this Court deemsjust and proper. Respectfully submitted this December 24. 2013. K, I Matthew Farmer. Esq. Co-Counsel for Plaintiffs Fla. Bar No. 0793469 Farmer Fitzgerald, PA. [02 W.Wl1iting Street Suite 50} Tampa, FL 33602 (813) 228-0095 (313) 224-0269 (fax) Page 1? of I9 Case Document 1 Filed 12/24/13 Page 18 of 19 Page|D 18 55; ~31 Ralf Brookes, Esq. Fla Bar No. 0778362 Co-Counsel For Plaintiffs 1217 Cape Coral Parkway #107 Cape Coral, Fl 33904 (239) 910-5464; (866) 341-6086 fax VERIFICATION Under penalty of perjury, I hereby declare that the foregoing facts are true: and correct to the best of my - NOTARY PUBLIC Sworn to or affirmed) and subscribed before me this day of by who is personally known to me g; produced identification (type. of identification produced: f"L 3 r"N'f43 Commission Expires: MERANDA aw COMMISSION oomraas EXPIRES March 16. 2014 [403] S1 we Page 13 ofl') Case Document 1 Filed 12/24/13 Page 19 of 19 Page|D 19 I hfirfiby dficlare that the foregoing facts are true and correct to the best 1 IV Jones EQIIABXESIELIQ rd and :33; 1 to me who produced identification (type of identification Wm SealfMy Commissi fiQL4 f?fi Imoan.upruum2.am Page I9 of [9 Case Document 1-1 Filed 12/24/13 Page 1 of 4 Page|D 20 Sent Via Certified Mail TO: RE: RALF BROOKES, ATTORNEY Board Calif/fed in Cigz, Cotmgw and Low! Gavemr/zen! Law October 10, 2013 United States Army Corps of Engineers ATTN: Office of Counsel, Room 474 701 San Marco Boulevard Jacksonville, Florida 32207-8175 United States Environmental Protection Agency Administrator 1200 Avenue, N.W. Washington, DC 20460 United States Environmental Protection Agency Region 4 Administrator Atlanta Federal Center 61 Street, SW Atlanta, GA 30303-3104 The State of Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Tallahassee, Florida 32399 State of Florida, Department of State, Division of Historical Resources R. A. Gray Building 500 South Bronough Street Tallahassee, FL 32399-0250 Owner/ Operators: Sarasota County and City of North Port, Florida c/ County Attorney and City Attorney Notice of Federal Clean Water Act Section 404 Violations Please take notice that the Friends of the Warm Mineral Springs, Inc. ("Friends") intend to file a suit, pursuant to the Clean Water Act citizen suit provision, 33 U.S.C. 1365, regarding the matters described below. The United States Army Corps of Engineers is the federal authority having the power to issue and enforce permits pursuant to Section 404 of the Clean Water Act, 33 Case Document 1-1 Filed 12/24/13 Page 2 of 4 Page|D 21 U.S.C. 1344. The United States Environmental Protection Agency is the federal regulator having the power and duty to protect waters of the United States and, as such, must take appropriate enforcement action to rectify continuing violations of Section 404 of the Clean Water Act, 33 U.S.C. 1344, and the regulations promulgated thereunder. MATTER: Unpermitted fill in surface waters, Warm Mineral Springs (WMS) LOCATION: 1200 San Servando Avenue, North Port, Sarasota County, Florida Plastic sheeting and oifsite sand has been placed around the perimeter of the central vents in Warm Mineral Springs and secured in place with trucked in offsite sand and sediment dumped into Warm Mineral Springs, 55 gallon drums and other weights without a Section 404 permit. As a result of this unpermitted deposition of materials into the spring, sand and sediment is beginning to cascade down the sides of the track into the main spring vents, congesting and, in some instances, impeding the outflow of water; covering endemic natural submerged aquatic vegetation, endemic organisms within the natural sediments have been smothered, denied new growth; and, the water quality of this once clear warm spring is tainted with turbidity. The placement of more than 1 ton(s) of foreign sand that has been trucked to, dumped and deposited into Warm Mineral Spring is now interfering with flow from deep and shallow natural hot deep vent(s) and shallow cold water vent(s) located within the spring and may be changing both the temperature (which is affected by deep mineralized hot water vents and shallow aquifer cold water vents) and the unique mineral content of Warm Mineral Springs. It is important to measure the unique water flow, temperature and unique site specific alternative water quality criteria for Warm Mineral Springs. Although the spring head is in public ownership, public ownership alone does not guarantee ground water flow and quality will be maintained. The United States Geological Survey proposed a water flow and quality monitoring program to Sarasota County, but the County has not implemented the study or dedicated the funds the pursue the study. USGS Proposal, attached. The Friends of the Warm Mineral Springs, Inc. ("Friends") have discovered information indicating the presence of rare and endemic forms of filamentous algae', found only in the warm mineral springs. Micro-organisms unique to Warm Mineral Springs play an important role in supporting the water quality and Page 2 of 4 Case Document 1-1 Filed 12/24/13 Page 3 of 4 Page|D 22 maintaining its unique ecosystem in this higher temperature, mineralized spring (one of only two warm springs in the State of Florida). Friends has concerns for the uniqueness of the filamentous sulfur algae, (which is similar to eukaryotes that are suspected to be among the first forms of life on earth and found near sulfur vents in the deep ocean), and scientific data indicating that the algae is an integral chain in the biota and dependent upon the unique mineralization of the spring waters. Sufficient funds for clean up and monitoring spring flow and water quality are, or can be, generated by springs user fees. In recent years, bathers who "take the waters" for its mineral content who paid a $20 daily admissions fee creating over $1,000,000 in annual revenue at the Warm Mineral Springs Park in 2013, 2012 and 2011. The Friends respectfully request that the City and County utilize these funds to remove the plastic, offsite-sand, and drums from Warm Mineral Springs. The Friends assert that these actions constitute violations of Section 404 of the Clean Water Act, 33 U.S.C. 1344, which require anyone seeking to discharge pollutants into water of the United States to obtain a permit from the Army Corps of Engineers, as no permit was obtained conduct the activities upon which this notice is based. As such, the Friends respectfully request that the Environmental Protection Agency take the appropriate enforcement actions to prohibit further unpermitted activities in waters of the United States without first obtaining a valid permit or receiving written notification from the Army Corps of Engineers that the activities, as proposed, appear to be exempt from Clean Water Act permitting requirements, assessing the appropriate civil penalties and or fines and to restore the impacted waters. Please take all appropriate enforcement steps to rectify these violations within the next 60 days. Respectfully, Juliette Jones Friends of Warm Mineral Springs, Inc. Ralf Brookes Attorney Ralf Brookes Attorney Page 3 of4 Case Document 1-1 Filed 12/24/13 Page 4 of 4 Page|D 23 significant new flggellate from Warm Mineral Sgrings, Florida". Wilson Calaway, University of Florida. Engineering and industrial Experiment Station. Gainesville Florida Engineering and Industrial Experiment Station, College of Engineering, University of Florida, (1961); new, large ciliate from Warm Mineral Sgrings by James Lackey; Quarterly Journal, Florida Academy of Sciences, Vol. 20, No. 4, December, 1957; cologg of a sulfuretum in a semi-trogical environment" by George B. Morgan, James B. Lackey Journal of Basic Microbiology Volume 5 Issue 3 pages 237-248, 1965; fig and man. Springer US, 1967. 205-220. "The ecology of plankton algae." Lackey, James B. Thiodendron mucosum (neither a plankter nor an alga) known only in Warm Mineral Springs"); "The Habitat and Descrigtion of a New Genus of Sulghur Bacterium" by J. B. Lackey and Elsie W. Lacky J. gen. Microbiol. (1961), 26, 29-39 (new species and genus of colourless sulphur bacteria, for which the name Thiodendron mucosum The organism Thiodendron is another addition to the long list of parallel forms found in the lower In January 1956 a collection of sulphur bacteria was made at Warm Mineral Spring near Venice in south-west Florida, U.S.A. One of these was considered to be new. Since that date the organism has been studied intensively, and has been found at only one other location, despite diligent search.)" Mineral Spring has a unique flora and fauna; it seems ideal for sulphur bacteria. All species of Beggiatoa are abundant; B. gigantea, which has not been recorded from fresh water and which we have not found elsewhere in dense aggregates, may be scooped up there in great handfuls. has not been found, but many other groups are (see Table 3). In Warm Mineral Springs the blue-green algae are unusual, so are the diatoms,green algae and flagellates; few filamentous green algae occur and only an occasional green euglenid has been taken. The dominant green flagellate is Trentonia Jlagezzata, which apparently had not been seen until the present work since it was described.") See also regarding "Thiodendron" extant bacteria and archaebacteria eubacteria sulfur motility symbiosis at Page 4 of 4