Court to decide on pumping suburban water to Everglades

Tuesday, October 2, 2001

By CATHERINE WILSON, Associated Press

MIAMI — An appellate judge told South Florida water managers Monday that they had an uphill battle trying to avoid getting a federal permit to pump polluted water from Broward County suburbs into the endangered Everglades.

J.L. Edmondson, one of three federal judges hearing an appeal by the South Florida Water Management District, indicated he was swayed by the other side's arguments in favor of the discharge permit.

"Your water is more polluted than the receiving body of water," said Edmondson, who presided at the 11th U.S. Circuit Court of Appeals hearing. "Tell me why you're not covered by these regulations?"

James Nutt, representing the district, responded that the U.S. Clean Water Act does not apply to flood-protection facilities like the district's pump station, which sends canal water from sprawling bedroom communities west into the Everglades.

The Miccosukee Indian tribe, which lives in the Everglades, and the conservation group Friends of the Everglades have been battling the district for years over water policies that hurt the River of Grass.

Other disputes have focused on water quality in Lake Okeechobee, which feeds the Everglades. This unrelated appeal challenges a pumping system that reroutes drainage water west rather than into the Atlantic Ocean, the traditional dumping ground.

In the appeal, the tribe and conservation group want the judges to support a lower court decision requiring the district to get a permit for westward discharges from the S-9 pump station.

A $7.8 billion Everglades restoration law enacted last year authorized a 25-year project to restore the natural flow of water by changing water policies for the lower third of the Florida peninsula and backtracking on a century of drainage work.

The S-9 discharges are a small part of the planned reengineering. More than $100 million already has been spent by the district on a pollution control plan for the canal water from 52,000 acres of western Broward County, but the district does not want to be covered by federal permit requirements.

"Expense is not really the issue here," John Fumero, the district's lead attorney, said outside court. A ruling against the district "will have an adverse impact affecting any and all forms of government involved in flood control for people."

But Edmondson said he tends to rule on narrow grounds even though attorneys prefer wide-ranging decisions for their value as precedents.

Dexter Lehtinen, who represents the tribe, said outside the court that he was pleased with the hearing. He sued the district over its Everglades management practices while serving as U.S. attorney.

He said the state water district, which is based in West Palm Beach, has taken the position that it's easier to pollute the Everglades than enforce anti-pollution laws against high-powered Broward developers.

"It's the reason why the Clean Water Act was passed — because states were sitting around and not doing anything," Lehtinen said. "Politically, what you're talking about is you take on the urban developers or you take on the Miccosukees and Friends of the Everglades."

The most dangerous pollutant to the Everglades is phosphorus. The common ingredient in fertilizer feeds exotic plant life that displaces the low-nutrient natural prairie, hardwood hammocks, cypress swamps and mangrove shorelines of the Everglades, including Everglades National Park.

Phosphorus levels in the canal water sometimes hit 173 parts per billion, compared to the 10 ppb level that Lehtinen says the Everglades can tolerate.

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