A Brief History of Friends’ Everglades Water Quality Litigation

by | February 12, 2012 | Environmental Issues   

The Friends of the Everglades and Miccosukee Tribe v. United States EPA legal case was first filed in federal court in 2004, in order to challenge EPA’s failure to protect the Everglades’ from excessive phosphorus pollution coming off the sugarcane fields in the Everglades Agricultural Area (EAA). The purpose of Friends’ lawsuit was to protect water quality in the Everglades. Phosphorus pollution from the EAA over-fertilizes the Everglades, which destroys natural habitats thereby harming the plants and animals that live there.

In 2008, Judge Alan Gold, who presides over this case, issued a summary judgment decision in favor of Friends and the Tribe. Judge Gold’s decision was issued within the backdrop of another federal lawsuit, initially brought in 1988 by the federal government also to protect the Everglades from excessive phosphorus from EAA. That case resulted in a consent decree (1992), which is currently administered by federal judge Frederico Moreno and his appointed special master. The Moreno Consent Decree resulted in the construction of large treatment marshes (called STAs) along part of the southern perimeter of the EAA and the imposition on sugarcane farmers of minimal Best Management Practices (25% Phosphorus reduction). The STAs were constructed and are owned and operated by the South Florida Water Management District (SFWMD). While interpreted for many years as encompassing the entire Everglades Protection Area and the Everglades National Park, the Moreno Consent Decree was recently limited by court decision to the Loxahatchee National Wildlife Refuge on the eastern part of the Everglades. This ruling has substantially reduced the importance of the Moreno consent decree and increased the importance of the Gold case in achieving water quality protection for the Everglades.

After Judge Gold’s 2008 Summary Judgment decision in favor of Friends, it soon became clear… that the State and EPA were not going to move forward to protect the Everglades. By 2009, Friends and the Tribe were forced to file additional motions to have the EPA and the State held in contempt of court for violating the Court’s 2008 ruling.  In April, 2010, Judge Gold ruled in favor of Friends’. In his Order, Judge Gold stated: “So, we have now increased by 30 percent the amount of the Everglades that has been irreversibly damaged. If we allow continual discharge of this pollutant into the Everglades, into impacted areas which expand into unimpacted areas which become laden with phosphorus, that is irreversible damage. In my mind, that is unreasonable given the fact that it supposed to be stopped. We are supposed to be restoring the Everglades, not just stopping it and we haven’t even stopped the damage, yet…”

Judge Gold issued further Orders requiring EPA to issue an “Amended Determination” on its review of Florida State Water Quality Standards by September of 2010.  Judge Gold also required the Florida DEP to amend its Phosphorus Rule and required the State Legislature to revise the Everglades Forever Act Amendments to conform with federally-approved Water Quality Standards. Neither the State nor the State Legislature has complied with Judge Gold’s Order to this day. In his April 2010 Order, Judge Gold also ordered the State to conform the discharge permits (NPDES permits) for the STA treatment marshes within 60-days of EPA’s submission of the Amended Determination. The EPA did submit the Amended Determination in September of 2010. In the Amended Determination , EPA clearly set forth the standards and provisions that the NPDES permits should contain. Sixty-days later, the State submitted “sample permits”, not for EPA or Court review, but merely to avoid being held in contempt of Judge Gold’s Order.

Once again Friends was forced to file another motion for contempt against the State of Florida DEP. As a direct result of Friends’ motion, Judge Gold issued yet another Order in April 2011. In that Order, Judge Gold states: “To its credit, the EPA now has come forth – following a lengthy history of inaction – with an Amended Determination that serves to protect the Everglades resource. What also is clear is that the State of Florida and the South Florida Water Management District (“SFWMD”), notwithstanding protests to the contrary, have not been true stewards of protecting the Everglades in recent years.”

Judge Gold ordered the EPA to “review the permits filed by the FDEP and take all necessary action to conform the permits in accordance with the instant Order and the Court’s prior orders…” The Court deemed the draft State NPDES permits submitted for purposes of EPA review (even though the State had refused to submit them for review and tried to create a “Catch-22” log-jam by submitting them as “sample” permits). In his April 2011 Order, Judge Gold set in motion a process that could eventually result in the issuance of federal NPDES discharge permits for the STA treatment marshes, instead of the State-issued permits. The EPA and the State were further ordered to submit a Joint Notice of Compliance by July 1, 2011. On June 27, 2010, the EPA sent to the State a letter outlining its objections to the draft NPDES permits. The EPA stated that it “primarily objects” to the State draft permits because the permits still contained Administrative Orders and schedules that had been previously ruled illegal by Judge Gold and did not demonstrate that the Water Quality Standard of 10ppb of Phosphorus could be met in the Everglades Protection Area. Also, the EPA wrote that the SFWMD had not fully implemented Best Management Practices in the EAA. Finally, the draft State permits allowed to many diversions or by-passing of the STA treatment marshes, a defect first pointed out by Friends’ expert, Tom Lodge, Ph.D.

As required by Judge Gold, EPA and the State submitted a Joint Notice of Compliance on July 1, 2011. At that time, EPA indicated that under the Clean Water Act, 33 U.S.C. Sec. 1342(d)(2) & (4); 40 C.F.R. 123.44(h) that the State or other interested party could request a public hearing on the EPA objections to the State draft NPDES permits, as set forth in the June 27, 2011 letter. The State and other parties did request a public hearing within the 90-day period (Sept. 25, 2011). Prior to this time, the State had declared publicly in Court and otherwise that it was prohibited by State law from complying with Judge Gold’s Order and by issuing conformed NPDES permits that were immediately enforceable, as opposed to containing Administrative Orders with lengthy compliance schedules.

Subsequent to the State’s request for a public hearing, however, Friends became aware that the State was making overtures to the EPA to replace the EPA’s proposed WQBEL with its own standard and to replace the EPA’s STA expansion proposal with its own alternative remedy. Meanwhile, the EPA was stalling on setting a date for the public hearing, which was an essential step in complying with Judge Gold’s Order and moving forward with federalization of the NPDES permits. The threat of federalization of the STA NPDES permits was clearly having a positive impact on the State, in that the State did not want the permits “federalized” under Gold’s Order. If the STA permits were federalized, the State would no longer be able to protect Big Sugar from additional restrictions on its ability to pollute the Everglades at taxpayer expense. So, the pressure imposed by Gold’s Order (Friends’ lawsuit) was beginning to show results. The EPA, however, was letting this pressure dissipate by failing to schedule the required public hearing.

Given EPA’s delay in scheduling the public hearing on the draft State NPDES permits and EPA’s objections to them, Friends once again went back to Court and, on November 18, 2011, moved for a Status Conference. Judge Gold granted Friends’ motion and set a status conference for January 12, 2012. It was not until January 6, 2012, after Judge Gold granted Friends’ request for a Status Conference, that EPA finally scheduled a public hearing on its objections to the State’s draft NPDES permits. That hearing is now scheduled for March 13, 2012 from 6:00pm to 10:00pm at the South County Civic Center, 16700 Jog Road, Delray Beach, FL 33448.  After the hearing, EPA will review the comments presented and prepare a responsiveness summary.

At the January 12, 2012 Status Conference, Judge Gold asked EPA what, besides undertaking a technical review of the States’ WQBEL and alternative remedy, it had accomplished? Gold asked EPA if it had asked the State hard questions about funding and enforceability of the State’s proposal. The EPA attorney said that it had not asked the hard questions and had not received any information or data from the State on funding or enforceability of its proposals. In its “Report on EPA Actions Taken Since July 1, 2011”, EPA wrote to Judge Gold: “EPA assures the Court that it remains committed to its responsibilities under the Clean Water Act and to moving forward expeditiously.” Friends has heard these assurances before and remains highly skeptical, now. Judge Gold also requested and EPA committed to provide the Court and the parties with a summary status report on the hearing and EPA’s determinations within 30-days. According to EPA, it will either “reaffirm its original objections, modify the terms of the objections or withdraw the objections, and so notify the State…If EPA does not withdraw the objections and FDEP does not submit permits revised to meet the objections (or modified objections) within 30-days of the notification, then exclusive authority to issue the permits passes to EPA. 40 C.F.R. Sec. 123.44(h)(2)&(3).”

Categories Environmental Issues | Tags: | Published in February, 2012 |

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