Progress Toward Restoring the Everglades: The Fourth Biennial Review, 2012 (2012)

Appendix D

Timeline of Significant Legal Actions Related to Water Quality

TIMELINE OF SIGNIFICANT LEGAL ACTIONS

Key

*U.S. v. SFWMD (Moreno case)

**State of Florida Legislation and Regulation

***Miccosukee v. U.S. (Gold case)

****Miscellaneous Related Legal Actions

DETAILS OF SIGNIFICANT LEGAL ACTIONS

*1988 U.S. v. SFWMD filed (Moreno case). U.S. government sued the State of Florida and SFWMD arguing the state was threatening the water quality of Everglades National Park (ENP) and the Loxahatchee NWR due to the state’s failure to enforce water quality laws. United States v. South Florida Water Management District, 847 F. Supp. 1567 (S.D. Fla. 1992).

**1991 Everglades Protection Act (EP Act) enacted in Florida. The Marjorie Stoneman Douglas Everglades Protection Act (EP Act) required the state to develop a Surface Water Improvement and Management (SWIM) plan for the Everglades restoration. The SWIM plan was to provide a roadmap for compliance with water quality standards as well as restoration of hydroperiods. The EP Act also required Florida Department of Environmental Protection (FDEP) and SFWMD to develop permitting programs and required SFWMD to apply for interim permits for discharges to the Everglades Protection Area. The EP Act also authorized SFWMD to impose additional ad valorem taxes on properties within the EAA and to adopt stormwater utility fees.

*1992 Consent Decree approved by Court in U.S. v. SFWMD. The Governor conceded liability in the Moreno case and the state entered into the Consent Decree, which was approved by the Court and upheld (in most respects) on appeal. United States v. South Florida Water Management District, 28 F.3d 1563 (11th Cir. 1994), cert. den. Western Palm Beach Cty. Farm Bureau v. U.S., 524 U.S. 1107 (1995). The EP Act served as the basis for the terms of the Consent Decree. The Consent Decree required the State to take certain actions necessary to ensure discharges to the federal lands meet agreed upon interim P levels by 1997 and final P levels by 2002. Specifically, the Consent Decree required:

(1) the state to build and operate a minimum of 32,000 acres of STAs; (2) the state to implement a regulatory program to require farms to implement BMPs in the EAA; and (3) the state to adopt a SWIM plan. Once the Court approved the Consent Decree it became an Order of the Court. The state’s SWIM plan, which was intended to be the basis of restoration under the EP Act and the Consent Decree, was challenged by agricultural interests. Agricultural interests also challenged proposed permits issued by FDEP.

**1994 Everglades Forever Act enacted in Florida. Agricultural interest entered into settlement discussions with the federal and state governments. These discussions led to a 1993 “Statement of Principles,” which formed the basis of new state legislation that substantially altered the 1991 EP Act. This legislation, the Everglades Forever Act (EFA), removed the requirement for adoption of a SWIM plan, modified timetables for achieving water quality standards, and required the state to adopt a numerical phosphorus standard. The EFA provided that if the state did not adopt a numerical standard by the end of 2003, a default standard of 10 parts per billion (ppb) would go into effect. The EFA mandated that FDEP and SFWMD ensure compliance with state water quality standards in the Everglades Protection Area (EP Area) by the end of 2006. The EFA adopted a schedule of constructing STAs. It also authorized an agricultural privilege tax and the use of Alligator Alley toll finds. These changes to state law made state law inconsistent with the 1992 Consent Decree, which had utilized the 1991 EP Act as its foundation. After many years of legal haggling a revised Consent Decree was approved in 2001 (see note 9).

****1999 EPA signed Consent Decree agreeing to establish TMDLs. Florida did not make sufficient progress in establishing total maximum daily loads (TMDLs) for impaired waters in the state. Consequently, a U.S. District Court for the Northern District of Florida approved of a consent decree compelling U.S. Environmental Protection Agency (EPA) to establish TMDLs for 500 water bodies on Florida’s §303(d) list. Florida Wildlife Federation, Inc., et al. v. Browner, et al., Case No. 4:98cv356-WS, Order Approving Consent Decree (N.D. Fla. Aug. 7, 1999).

**1999 Florida enacted Florida Watershed Protection Act. The Watershed Protection Act, §403.067 Fla. Stat., requires FDEP to evaluate the quality of water bodies and, for those with impaired quality, establish TMDLs. Under the Act, FDEP may implement Basin Management Action Plans to integrate the appropriate management strategies to achieve TMDLs. The Act also empowers FDEP to promulgate rules establishing best management practices and other interim measures.

**2001 FDEP set TMDL for Phosphorous in Lake Okeechobee. The TMDL allows an annual load of 140 metric tons of phosphorous to Lake Okeechobee to achieve an in-lake target phosphorous concentration of 40 ppb in the pelagic zone of the lake. http://www.dep.state.fl.us/water/wqssp/everglades/lakeo-tmdl.htm

*2001 Modified Consent Decree approved and Special Master Appointed. Due to the changes in state law resulting from the 1994 EFA, the 1992 Consent Decree was revised and approved by the Court in 2001. Among other things, the revised Consent Decree extended the deadline for compliance with the 10 ppb phosphorous water quality standards until the end of 2006. The Court also agreed to appoint a Special Master to oversee the details of compliance with the Consent Decree.

*2003 “Conceptual Plan” approved by SFWMD. In 2003, the SFWMD governing board approved a document titled Everglades Protection Area Tributary Basins Conceptual Plan for Achieving Long-Term Water Quality Goals Final Report (Conceptual Plan). The Conceptual Plan questioned the ability to meet water quality standards by the 2006 deadline and thus extended the final deadline for achieving the 10 ppb to 2026. The Conceptual Plan also established a 2016 deadline for meeting an interim standard of 15 ppb.

**2003 Everglades Forever Act amended. In 2003 the Florida legislature amended the EFA to adopt the SFWMD Conceptual Plan, thereby extending the deadlines for compliance with water quality standards as provided in the Conceptual Plan. Once again, a Florida legislative change created inconsistencies between Florida state law and the federal court-approved Consent Decree. Most significantly, Florida law now had a 2016 deadline (with legislative authority to extend it to 2026) for meeting 10 ppb, whereas the federal court-approved deadline remained at 2006.

The judge who at the time was in charge of what is now referred to as the Moreno case, Judge Hoeveler, made it clear that the change to Florida law would “have no effect” on federal enforcement. Subsequently, the sugar industry had Judge Hoeveler removed from the case and replaced with Judge Moreno, who appointed a new Special Master to oversee compliance with the Consent Decree.

**2003 Florida adopted new water quality default criterion for P. The Everglades Forever Act required the adoption of this criterion, 10 ppb of phosphorous, by the end of 2003.

***2004 Miccosukee v. U.S. case filed (Gold case). In Miccosukee Tribe of Indians of Florida v. United States of America (Case No. 04-21448; this case was later consolidated with Friends of the Everglades v. United States of America, Case No. 04-22072), the Tribe filed suit to compel the EPA to review and disapprove the amended Everglades Forever Act and to comply with the standards already set forth under the Clean Water Act.

*2005 Determination in Moreno case of violation of Consent Decree. The Miccosukee Tribe made a motion to declare violations of the Consent Decree based on exceedances of phosphorous levels in the Loxahatchee National Wildlife Refuge. The Court found that these exceedances were not excusable errors and thus concluded that they constituted a violation of the Consent Decree.

***2006 Judge Gold ordered a hearing on EPA’s review of Florida’s WQS for P. In separate actions brought by the Miccosukee Tribe and by Friends of the Everglades, each sought review of EPA’s determination that the amendments to the EFA were not new or revised water quality standard (WQS) subject to review under §303(c) of the Clean Water Act (CWA). Additionally, both parties sought to have the court decide that EPA’s determination approving parts of the Phosphorous Rule as new or revised WQS was arbitrary and capricious, and that other parts EPA had found were not new or revised WQS were also ARB and CAPR.

***2008 Judge Gold issues judgment. Judge Gold, in a judgment order of the consolidated cases, determined that amendments to the EFA were new or revised water quality standards that EPA must approve or disapprove. With regards to the Phosphorous Rule, Judge Gold approved the numeric criterion for phosphorous but set aside EPA’s approval of certain subsections of the Phosphorous Rule.

***2009 EPA issues “Determination.” Responding to Judge Gold’s language in his summary judgment order that required EPA “to comply with its duty under the Clean Water Act to approve or disapprove those changes consistent with the findings and conclusions” of the order, EPA issued its 2009 determination. EPA conducted a more thorough review of the effects of the amendments to the EFA on state WQS. EPA disapproved as new or revised WQS those amendments to the EFA that were moderating provisions. With regard to the Phosphorous Rule, EPA disapproved portions of the rule (subsections (1), (2), and 5(a-c)) and found that they were not in effect as WQS.

***2010 (January 4) Judge Gold held evidentiary hearing. Judge Gold held an evidentiary hearing on plaintiffs’ motions to enforce the 2008 order, where they

alleged that revised administrative orders for the STA permits did not comply with the court’s 2008 order. This hearing resulted in the April 2010 order.

*2010 (March 31) Judge Moreno adopts Special Master’s Report from 2006. In this order, Judge Moreno compels construction of the Everglades Agricultural Area (EAA) A-1 Reservoir based on the recommendations of the Special Master.

***2010 (April 14) Judge Gold orders EPA to issue an “Amended Determination.” On April 14, 2010, Judge Gold found that the “Determination” made by EPA in 2009 did not fully comply with his prior summary judgment order by continuing to find that the state of Florida and EPA had no need to take further action pursuant to CWA §303(c). Additionally, Judge Gold found that FDEP failed to comply with his summary judgment order by continuing to issue Administrative Orders that relied on disapproved language in the EFA and the Phosphorous Rule. Judge Gold ordered EPA to issue an Amended Determination (discussed below at note 19), prohibited FDEP from issuing further NPDES permits for STAs that discharge into, or within, the Everglades Protection Area until FDEP is in compliance with the CWA, and finally commanded EPA Administrator Lisa Jackson to personally appear before him to report on the status of the compliance with his Order (a decision later overturned by the 11th circuit).

***2010 (September 3) EPA issues “Amended Determination. On September 3, 2010, EPA issued its Amended Determination as directed by Judge Gold. This Amended Determination specifically speaks to each of the directives ordered by Judge Gold. These actions include: (1) revisions to EPA’s 2009 Determination, previously discussed; (2) directions to Florida for correcting deficiencies in both Florida’s Phosphorous Rule and the Amended Everglades Forever Act; (3) provisions for the “manner and method for obtaining enforceable WQBEL within time certain”; (4) requirements to measure and submit annual reports on cumulative impacts until Water Quality Standards are attained; (5) directions to Florida to conform all NPDES and EFA permits pursuant to both the Court’s 2008 order and the 2010 order by eliminating all nonconforming language and by including the WQBEL presented in the Amended Determination; and (6) establishment of an “enforceable framework for ensuring compliance with the CWA and Applicable Regulations.”

*2010 (October 25) Moreno hearing. This hearing revolved around exceedances of phosphorous occurring in the Loxahatchee NWR during 2009.

***2010 SFWMD sends letter to EPA declining to comply with Amended Determination. On November 2, 2010, the Executive Director of the SFWMD sent

a letter to EPA Regional Administrator for Region IV, Gwen Fleming, informing her of SFWMD’s decision to decline the opportunity to provide an alternative proposal for achieving water quality standards created by the federal government for the Everglades. While referencing its history of good faith efforts in improving water quality in the Everglades, the SFWMD declined to follow EPA’s Amended Determination plans because of the high financial burden it would place on the state.

****2010 The court, in a lawsuit involving a bond issue, rules SFWMD has legal authority to purchase U.S. Sugar property. In Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, 48 So. 3d 811 (Fla. 2010), the district sought validation of Certificates of Participation to purchase 73,000 acres of land from the U.S. Sugar Corporation for the purpose of Everglades restoration. The court found that the economic feasibility of the COPs were beyond the scope of judicial review; that the district has the authority to acquire land for the purpose of protecting water and water-related resources; that there was competent, substantial evidence in the record that the issuance of COPs was in the public purpose; that no voter referendum was required under Florida Constitution Article VII, Section 12; that the district is not a “state agency” for purposes of Florida Constitution Article VII, Section 11(f), and therefore does not need legislative approval for issuance of COPs; that the district could create a nonprofit leasing corporation for the sole purpose of facilitating COPs transactions; that the district has authority to purchase land with the express purpose of conveying it to a local governmental entity; that the purchase option expenses do not serve a public purpose and therefore cannot be financed by COPs; and other factual findings regarding the payment for purchase options.

**2011 Governor Rick Scott suspends rulemaking in Florida. On January 5, 2011, Governor Scott signed an executive order directing all State agencies under the Governor’s control to suspend rulemaking except at the direction of the newly created Office of Fiscal Accountability and Regulatory Reform.

*2011 (March 23) Judge Moreno issues order reversing previous order compelling construction of the EAA A-1 Reservoir. Judge Moreno, in accepting the recommendation of his court-appointed advisor, found the water district’s declining budget, the U.S. Sugar land purchase, and another judge’s order had altered restoration plans. Accordingly, Judge Moreno reversed his previous order that had compelled the construction of the EAA A-1 Reservoir.

***2011 (April 26) Judge Gold issues Omnibus Order. According to Judge Gold this order attempts to give EPA the tools necessary to bring the full force of the

CWA to bear upon the restoration of the Everglades. Judge Gold recognizes EPA’s “more committed effort” to comply with the April 14, 2010, order and granted EPA’s motion to amend the order to eliminate the requirement that EPA withdraw FDEP’s authority to issue NPDES permits, and also seeks to transfer permitting authority to EPA pursuant to the CWA. This will help achieve the goals presented in the EPA’s Amended Determination.