US v. South Florida Water Management Dist., 88-1886-CIV.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Citation: 847 F. Supp. 1567
• Decision Date: 24 February 1992
• Docket Number: No. 88-1886-CIV.,88-1886-CIV.
• Parties: UNITED STATES of America, et al., Plaintiff, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT; Tilford Creel, Executive Director, South Florida Water Management District; Florida Department of Environmental Regulation; and Carol M. Browner, Secretary, Florida Department of Environmental Regulation, et al., Defendants.

847 F. Supp. 1567

UNITED STATES of America, et al., Plaintiff,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT; Tilford Creel, Executive Director, South Florida Water Management District; Florida Department of Environmental Regulation; and Carol M. Browner, Secretary, Florida Department of Environmental Regulation, et al., Defendants.

No. 88-1886-CIV.

United States District Court, S.D. Florida.

February 24, 1992.

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COPYRIGHT MATERIAL OMITTED

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William E. Guy, Jr., Stuart, FL

R. Benjamin Reid, Popham, Haik, Schnobrich & Kaufman, Ltd., Miami, FL.

Robert P. Smith, Jr., Hopping, Boyd, Green & Sams, Tallahassee, FL.

Martin Suuberg, Office of Sol. Gen., U.S. Dept. of Interior, Washington, DC.

Dean B. Suagee, Hobbs, Straus, Dean & Wilder, Washington, DC.

Terry S. Nelson, Miami, FL.

Eric C. Christu, Gary M. Brandenburg, Nancy G. Linnan, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, West Palm Beach, FL.

Charles C. Powers, Powers & Koons, P.A., Palm Beach Gardens, FL.

David J. White, Proenza, White & Huck, P.A., Miami, FL.

Thomas W. Reese, St. Petersburg, FL.

John A. Yaun, City Atty., Clewiston, FL.

William L. Earl, Richard Burgess, Peeples, Earl & Blank, P.A., Miami, FL.

David G. Guest, Sierra Club Legal Defense Fund, Tallahassee, FL.

MEMORANDUM OPINION AND ORDER ENTERING SETTLEMENT AGREEMENT AS CONSENT DECREE

HOEVELER, District Judge.

The Court on this day approves and enters as a consent decree the settlement agreement ("Agreement") executed by plaintiff United States and defendants South Florida Water Management District ("District") and the Florida Department of Environmental Regulation ("DER").¹

The Agreement resolves all claims by the original parties in a complex environmental lawsuit filed more than three years ago by the United States against the District and DER for alleged contamination of the Loxahatchee National Wildlife Refuge (the "Refuge") and the Everglades National Park (the "Park") caused by nutrient-rich farm runoff in waters released into the Refuge and Park through structures operated by the District. The United States claims that high levels of phosphorous in farm-water runoff have altered the fragile ecosystems of the Park and Refuge, producing dense cattails in place of the native sawgrass and wet prairie communities and endangering indigenous plant and animal life.

The Agreement is supported by the numerous environmental groups permitted to intervene in this action and opposed by defendant-intervenors Cities of Belle Glade and Clewiston (the "Cities") and several agricultural organizations ("Farm Interests") (collectively referred to as "defendant-intervenors"). As set forth below, the Court finds that the objections to the Agreement raised by defendant-intervenors, with one exception, are either satisfied by this Order or are without merit. The exception to which the Court refers is the objection based on the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Nonetheless, because rejection of the Agreement on this ground alone would frustrate the very purpose behind the statute, the Court will require compliance with NEPA simultaneous with, and not as a condition to, implementation of the Agreement.

I. THE AGREEMENT

A review of the terms of the Agreement reveals an ambitious strategy to restore and preserve the Everglades ecosystem. In broad outline, the Agreement establishes interim and long-term phosphorous concentration limits for the Park and Refuge and delineates specific remedial programs designed to achieve these limits. The remedial programs consist of stormwater treatment areas ("STAs") and a regulatory permitting program aimed at agricultural discharges from the Everglades Agricultural Area ("EAA"). The STAs, to be constructed by the District on 35,000 acres of land in the EAA, are large water filtration marshes designed to process and remove nutrients from

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agricultural runoff destined for the Park and Refuge. The STAs will thus act as a "buffer zone" between the agricultural area and the Park and Refuge, receiving stormwater directly from agricultural drainage canals and purifying the water before it enters the Park and Refuge. The regulatory program complements and lessens the work of the STAs by seeking to reduce the level of phosphorous in agricultural runoff entering the STAs. Pursuant to this program, the District or DER will regulate the water quality of agricultural discharges through a permitting scheme by which permit applicants will be required to comply with designated phosphorous load allocations and adopt best management practices aimed at reducing the levels of phosphorous in agricultural discharge. The combination of the STAs and the regulatory program are expected to achieve an 80% long-term reduction in phosphorous loads from the EAA

In addition to these remedial measures, the Agreement establishes a research and monitoring program, a technical oversight committee to supervise the research and monitoring, and a schedule for the completion of administrative actions consistent with the terms of the Agreement.

The Agreement is notable in at least two respects. First, the basic programs and measures set forth in the Agreement track substantially the requirements of the Marjorie Stoneman Douglas Everglades Protection Act ("Everglades Protection Act"), Fla.Stat. § 373.4592 (1991), a state legislative measure enacted in response to this lawsuit. Among other things, the Everglades Protection Act requires the District to establish:

— strategies for developing programs and projects designed to bring facilities into compliance with applicable water quality standards and restore the Everglades hydroperiod, including the identification and acquisition of lands for the purpose of water treatment or implementation of stormwater management systems ... and the development of a permitting system for discharges into waters managed by the District;

— strategies for establishing research programs to measure program and project effectiveness;

— recommended ambient concentration levels and discharge limitations for phosphorous appropriate to achieve and maintain compliance with applicable state water quality standards;

— proposed interim concentration levels designed to achieve compliance with water quality standards to the maximum extent practicable; and

— a monitoring program to ensure the accuracy of data and measure progress toward achieving interim concentration levels and applicable water quality standards.

§§ 373.4592(3)(a)1, 373.4592(3)(a)4, 373.4592(6)(a)1, 373.4592(6)(a)2, 373.4592(6)(a)5.

These strategies and proposals are to be incorporated in the Surface Water Improvement and Management ("SWIM") plan and District permit applications required under the Everglades Protection Act.

Thus, while the Agreement undoubtedly goes further than the Act in terms of specificity, its general approach to the problem is the same.

Second, and more important from the standpoint of the Cities and the Farm Interests, the Agreement is not self-executing, but rather is subject to Florida's Administrative Procedures Act ("APA"), Fla.Stat. § 120.50 (1991) et seq., which affords affected parties the opportunity to challenge proposed agency action.

Under the APA, a party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 trial-type hearing if there is a disputed issue of material fact and, ultimately, an appeal to the appropriate Florida District Court of Appeal. Fla.Stat. §§ 120.57, 120.68. The Section 120.57 hearing, presided over by an impartial hearing officer, is infused with most, if not all, of the procedural attributes of a bench trial. The parties are permitted an opportunity to respond, to present evidence and argument on the issues involved, to conduct cross-examination and submit rebuttal evidence, to file exceptions to the hearing officer's recommended order, and to be represented

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by counsel. § 120.57(1)(b)4. The parties may also submit pleadings and are afforded discovery prior to the hearing in accordance with the Florida Rules of Civil Procedure. §§ 120.57(1)(b)5, 120.58(1)(b). As the Section 120.57 hearing serves the dual purpose of adjudicating disputed facts and enabling parties adversely affected by the proposed action to change the agency's mind, the role of the hearing officer is to make findings of fact and determine if the evidence supports, or warrants a conclusion at odds with, the proposed action. See Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Capeletti Bros. v. State Dep't of Gen. Servs., 432 So.2d 1359, 1363 (Fla. 1st DCA 1983)

In considering the hearing officer's recommended order, the agency must accept the hearing officer's findings of fact if they are supported by competent substantial evidence and may not reweigh evidence, rejudge the credibility of witnesses, or use conclusions of law to overturn those findings of fact in order to fit a desired result. § 120.57(1)(b)10; See Heifetz, 475 So.2d at 1281; South Florida Water Management Dist. v. Caluwe, 459 So.2d 390, 394-95 (Fla. 4th DCA 1984); McDonald v. Dep't of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). If the agency determines that the officer's findings of fact are not supported by the record, the reasons underlying this conclusion must be stated with particularity in its final order. § 120.57(1)(b)10. The agency's final order, and thus its compliance with the above requirements, is subject to judicial review in the Florida District Courts of Appeal. See § 120.68. It is by virtue of these procedures that the APA ensures that an agency's final action is supported by the evidence developed in the record.

Because the regulatory measures called for in the Agreement are to be undertaken by the District and DER and therefore constitute "agency action" subject to the APA, substantially...