Miccosukee Tribe Of Indians Of Fla. v. U.S.A

• Decision Date: 14 April 2010
• Docket Number: 04-CV-22072,No. 04-21448,05-CV-20663.,04-21448
• Citation: 706 F.Supp.2d 1296
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff,v.UNITED STATES of America, et al., Defendants.Friends of the Everglades, Plaintiff,v.United States of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

706 F.Supp.2d 1296

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Friends of the Everglades, Plaintiff,

v.United States of America, et al., Defendants.

Nos. 04-21448, 04-CV-22072, 05-CV-20663.

United States District Court S.D. Florida.

April 14, 2010.

John E. Childe, Palmyra, PA, for Plaintiff.

Norman L. Rave, Jr., United States Department of Justice, Environment & Natural Resources, Washington, DC, Philip Mancusi-Ungaro, United States Environmental Protection Agency Region IV, Atlanta, GA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTIONS [DE 357]; [DE 364] IN PART; GRANTING EQUITABLE RELIEF: REQUIRING PARTIES TO TAKE ACTION BY DATES CERTAIN

ALAN S. GOLD, District Judge.

I. Introduction

Plaintiffs, the Miccosukee Tribe of Indians of Florida (“the Tribe”) and Friends of the Everglades (“Friends”), have filed various motions for contempt or to otherwise compel the State and Federal Defendants to comply with this Court's July 29, 2008 Summary Judgment Order ¹[DE 357, 364]. The Tribe and Friends, as well as Defendant the United States Environmental Protection Agency (“the EPA”) ² and the Intervenor Defendants-i.e., the Florida Department of Environmental Protection (“FDEP”), New Hope Sugar Company and Okeelanta Corporation-have submitted numerous filings, exhibits, and memoranda in support of their varying positions. See, e.g.,[DE 360, 363, 366, 371, 372, 375, 377, 387, 389, 390, 391, 392, 393, and 395]. A two-day evidentiary hearing was held on January 13 and April 5, 2010 (“Contempt Hearing”). For the reasons that follow, I grant the Plaintiffs' motions in part, impose further equitable relief, and require compliance with the milestones set forth in this Order.

II. Findings of Fact

1. The Nation and the State of Florida have recognized the Everglades as a national treasure which requires our utmost protection. After years of study, the State of Florida has determined that the best technology available to protect the remaining Everglades is through the use of Storm Water Treatment Areas, which filter upstream discharges before they enter the Everglades Protection Area.

2. Upstream discharges containing high levels of phosphorus and other nutrient pollutants enter the Everglades Protection Area ³ through six existing Storm Water Treatment Areas (“STAs”) known as STA-1W, STA-1E, STA-2, STA-3/4, STA 5 and STA-6. The purpose of the STAs is to remove phosphorus and other nutrients from the upstream waters before they enter the Everglades Protection Area.⁴

3. While the State of Florida and the United States have spent considerable resources on constructing the STAs, the STAs have only managed to slow, but not stop, the rate of destruction within the Everglades Protection Area. The hard reality is that ongoing destruction due to pollution within the Everglades Protection Area continues to this day at an alarming rate.

4. To protect the Everglades from further significant environmental degradation, it is essential that discharges into and within, the Everglades Protection Area not exceed more than 10 parts per billion of phosphorus (“ppb”). In federal Clean Water Act terms, the 10 ppb standard is referred to as a water quality based effluent limitation (“WQBEL”). See note 5 infra. The STAs currently do not meet this vital standard. At best, the State of Florida and the EPA anticipate that, in 2016, the STAs may be operating with technology based effluent limitations (“TBELs”), which provide significantly less protection.⁵

5. According to the 2010 South Florida Environmental Report, as confirmed by expert testimony at the Contempt Hearing, all the STAs allow significant discharges into the Everglades Protection Area that exceed the 10 ppb limitation. [DE 375-1]. Specifically, for the period of May 1, 2008 through April 30, 2009, the flow-weighted mean outflow for total phosphorus was as follows: 21 at STA-1E; 36 at STA-1W, 18 at STA-2, 13 at STA 3/4, 56 at STA 5, and 93 at STA-6. STA 1E is the largest of the six STAs.⁶ Id. at 3. All of the STAs, except STAs 3 and 4, operate in the “Stabilization Phase,” which will end when the respective STA achieves the annual total phosphorus limits as defined in the TBELs. STAs 3 and 4 are in the “Routine Operations Phase.” Id. at 5. But even the lesser protection of TBELs do not apply until the STA is in the “Routine Operations Phase.” Id. In other words, there are currently no effluent limitation limits in effect at all for STAs 1E, 1W, 2, 5 and 6. See id.

6. In 2005, the EPA prepared a comprehensive study of the Everglades known as the REMAP Report. According to REMAP, the extent, and rate, of destruction of the Everglades has increased from 1995-2005, with the percentage of Everglades Protection Area soils affected by phosphorous jumping from 33.7 percent to 49.3 percent during that ten-year period. [DE 380, pp. 43, 241]. EPA has not updated its report since 2005. There are no available studies and related mapping of the Everglades Protection Area that accurately locates and measures the current rate of decline and the additional areas affected. ⁷ Nonetheless, data extrapolated from the STA discharges supports the expert conclusions at the Contempt Hearing that the rate of destruction of the Everglades due to excessive phosphorus discharge is significant, grave, and unacceptable.⁸ As explained by Dr. Terry Rice at the Contempt Hearing,

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.

[DE 380, pp. 42-43].

7. The State of Florida, in the 1994 Everglades Forever Act, Section 373.4592, Florida Statutes, committed itself to a twelve-year construction program to fix the problem and to meet the 10 ppb standard. The Everglades Forever Act assured that “in no case” shall the State's phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. Fla. Stat. § 373.4592(4)(e)(2), Florida Statutes (1994). The EPA, in 1999, accepted the State of Florida at its word and so has the United States District Court for the Southern District of Florida. In hearing after hearing, promises have been made that if an extension until December 31 2006 was granted, the deadline would be met.

8. By 2003, it was apparent to all that the State's promise would not be met. Ratherthan directly saying this, the State of Florida, with the approval of the EPA, departed from prior commitments by changing the state law to move the target date for compliance from December 31, 2006 ⁹ to 2016, and by loosening the standards for compliance through “moderating provisions.” It did so by legislation and rule-making that was so complex as to be incomprehensible to lay persons. None of the governmental agencies involved directly told the public the hard truth: we have not solved the problem, we do not know for sure when the problem will be solved, and we do not know if the Everglades will survive by the time we can meet the 10 ppb standard (if at all). If any clarity has come from the Contempt Hearing, it is this: any meaningful effort to save the Everglades will take continued will, focused expertise, and a “heavy lift” in difficult economic times.¹⁰

9. In my Order Granting Summary Judgment [DE 323],¹¹ which is now final, I spent 101 pages addressing the parties' numerous cross-motions for summary judgement which went to the legality of the State of Florida's 2004 Amendments to the Everglades Forever Act, the State's adoption of the implementing “Phosphorus Rule,” and the EPA's illegal determinations under the Federal Clean Water Act. As I explained at length in the Summary Judgment Order, the effect of the state law was to postpone the enforcement of WQBELs until the year 2016. I unequivocally concluded that this was unacceptable and contrary to the federal Clean Water Act.

The length of the Summary Judgment Order was a function of the complexity of the issues addressed and the matters at stake. After much discussion, I concluded that the State of Florida and the EPA violated the Clean Water Act in failing to protect the Florida Everglades. I told the EPA and the State of Florida the bottom-line: that de facto suspension of enforcement and compliance with state water quality standards for an indeterminable period is a result that cannot be permitted under the Clean Water Act. I required each to act in a manner consistent with the Clean Water Act and with the findings and conclusions set forth in the Order.¹²

10. I first address the EPA's actions subsequent to the issuance of the Summary Judgment Order. Although I unambiguously ordered the EPA to require the State of Florida to comply with the Clean Water Act in a manner consistent with the Order, the EPA's recent 2009 Determination has failed to do so. Instead, the EPA has chosen to read the Order in the narrowest possible of terms by picking and choosing isolated phrases. The EPA then relies on its own narrow interpretation of these phrases to avoid compliance. I express in the strongest possible terms my frustration and disappointment.

Even independent of the Summary Judgment Order, the Clean Water Act itself “requires EPA to determine whether [a] standard is ‘consistent with’ the Act's requirements” and provides that if the EPA Administrator “determines that any such revised or new standard is not consistent with the applicable requirements of this Chapter [which the EPA found in its 2009 Determination], he shall ... notify the State and specify the changes to meet such...