Posted on August 17, 2011 by William Green
Blog written by: William Green and Gary Perko
Florida’s Everglades is a diverse mosaic of wetland communities that once extended from the shores of Lake Okeechobee to Florida Bay almost 100 miles to the south. Over a period of 100 or more years, a series of alterations and controls changed how the historic Everglades water naturally flowed. First, drainage canals were constructed from Lake Okeechobee to the ocean and Gulf of Mexico. These were followed by development of a fertile Everglades Agricultural Area (EAA) and compartmentalization of the remaining wetland ecosystem into series of Water Conservation Areas laying north of the Everglades National Park.
The diversity of the Everglades system is now rivaled by the complexity of litigation over Everglades water quality. In 1988, the United States sued the State of Florida alleging that the state had failed to enforce state water quality standards for phosphorus released into two key undeveloped components of the remaining Everglades: the Loxahatchee National Wildlife Refuge in the northern Everglades and Everglades National Park in the south. This led to a comprehensive settlement agreement and state legislation — the Everglades Forever Act or “EFA” — calling for construction of the largest man-made wetland treatment system ever attempted in the world. See, United States v. South Fla. Water Management Dist., 847 F.Supp. 1567 (S.D.Fla. 1992) (order approving settlement agreement); § 373.4592, Fla. Stat. (Florida’s Everglades Forever Act). To date, Florida has invested over $1 billion to convert approximately 45,000 acres of EAA farmland into Stormwater Treatment Areas or “STAs.” EAA farmers also have implemented Best Management Practices that have reduced phosphorus loads from the EAA by more than 50 percent over the past 15 years.
Despite these significant state efforts, yet another lawsuit has led the federal government to threaten to wrest total control over Everglades restoration from the State of Florida and force the state to spend billions more on STA expansion. That case started out as a modest APA review of the U.S. Environmental Protection Agency’s approval, under the federal Clean Water Act, of certain amendments to the EFA, as well as Florida’s new water quality standard for phosphorus in the Everglades. As part of that water quality standard, the state adopted an ambitious phosphorus criterion of 10 ppb, but included certain moderating provisions based on the recognition that compliance with the 10 ppb criterion is a daunting task that, if achievable at all, will take decades or more to realize. In 2008, however, a federal district court rejected EPA’s approval of the moderating provisions, remanded the matter back to EPA for further review, and closed the case. See, Miccosukee Tribe of Indians of Fla. v. United States, 2008 WL 2967654 (S.D.Fla. July 29, 2008).
When EPA issued a revised determination in 2009, those disagreeing with EPA’s action chose not to file a new lawsuit to challenge the 2009 determination. Instead, the plaintiffs asked the district court to hold EPA in contempt of the 2008 order. Then, in an unprecedented expansion of APA jurisdiction, the district court reopened the case and issued another order in 2010, requiring EPA to take several actions aimed at the State. See, Miccosukee Tribe, 706 F.Supp.2d 1296 (S.D.Fla. 2010). These included: (1) ordering Florida to re-write portions of the Everglades phosphorus standard; (2) requiring the Florida Legislature to further amend the EFA; (3) declaring the state “out-of-compliance” with state water quality standards and instructing the “manner and method” to obtain compliance within a time certain; (4) requiring the state to conform all state-issued NPDES permits and EFA permits with the court’s order; and (5) requiring EPA to “initiate and carry out” its authority to withdraw approval of the state’s NPDES program, prohibiting the state from issuing or modifying of any permits for the STAs during the interim.
Based on the district court’s 2010 order, EPA issued yet another determination “instructing” the state that a 40,000-acre STA expansion — estimated to cost approximately $2 billion — is necessary to achieve compliance with state water quality standards. And, in accordance with yet another order issued by the district court in Miccosukee Tribe, 2011 WL 1624977 (Apr. 26, 2011), EPA has set in motion the process by which it can assume NPDES permitting authority over the STAs to impose a stringent water quality-based effluent limit and ultimately ensure that its proposed STA expansion is implemented. Not surprisingly, the State of Florida has appealed the district court’s 2010 and 2011 orders to the U.S. Court of Appeals for the Eleventh Circuit. Thus, it remains to be seen whether the dispute over state water quality standards will ultimately lead to federalization of Everglades restoration and beyond.