United States v. SFWMD, et al.,

U.S. District Court for the Southern District of Florida

Case No. 88-1886-CIV-HOEVELER
May 21, 1992 Hearing Transcript

 


         

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

 

 

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SOUTH FLORIDA WATER MANAGEMENT
DISTRICT; JOHN R. WODRASKA,
Executive Director, South
Florida Water Management
District; FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION
and DALE TWACHTMANN, Secretary,
Florida Department of
Environmental Regulation,

Defendants,

and

WESTERN PALM BEACH COUNTY
FARM BUREAU, INC.; FLORIDA
FRUIT AND VEGETABLE ASSOCIATION;
FLORIDA SUGAN CANE LEAGUE, INC.;
ROTH FARMS, INC.; K.W.B. FARMS
and BEARDSLEY FARMS, INC.,

Defendants-Intervernors

__________________________________________

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Case No
88-1886-CIV-WMH

          MIAMI, FLORIDA
          May 21, 1991
 

TRANSCRIPT OF HEARING PROCEEDINGS
IN THE ABOVE-ENTITLED MATTER
BEFORE THE HONORABLE WILLIAM M.
HOEVELER, U.S. DISTRICT JUDGE


    
Appearances
     Proceeding
     Page:   20  40 60 80
     Certificate (page 83)

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APPEARANCES:


DEXTER LEHTINEN, ESQ.
United States Attorney
SUZAN HILL PONZOLI. ESQ.
Assistant U.S. Attorney
For the Plaintiff
Miami, Florida

 


2


GOVERNOR LAWTON CHILES

PEEPLES, EARL & BLANK, P. A.
One Biscayne Tower
Miami, Florida
BY:  WILLIAM L. EARL, ESQ.
For the Agricultural Intervenors


GARY S. GUZY, ESQ
U.S. Department of Justice
Environemntal Defense Section
P.O. Box 23986
Washington, D.C. 20026-3986


JAMES T. B. TRIPP, ESQ.
Environmental Defense Fund
257 Park Avenue South
New York, New York


RICK BURGESS, ESQ.
257 Southeast Avenue E
Belle Glade, Florida


ROBERT G. GOUGH, ESQ
Assistant General Counsel
State of Florida
Department of Environmental Regulataion
2600 Blair Stone Road
Tallahassee, Florida


TIMOTHY D. SEARCHINGER, ESQ
257 Park Avenue South
New York, New York 10010

Also Present:   Alan Milledge, Esq.
                       Abner Cooper, Esq.


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THE COURT: United States versus South Florida

Water Management District, et al. Counsel, please note your

appearances.

MR. LEHTINEN: For the plaintiffs, Dexter Lehtinen,

United States Attorney, and the others will announce their

appearances.

MS. PONZOLI: Susan Ponzoli.

THE COURT: Good morning.

MR. GOUGH: Your Honor, Robert Gough for the

Florida Department of Environmental Regulation.

THE COURT: Good morning.

MR. GOUGH: I have with me Alan Milledge, the

Chairman of the Governing Board of the South Florida Water

Management District.

Also admitted to this court, Your Honor, is

Governor Lawton Chiles. Your Honor, I would request that

the court admit Governor Lawton Chiles pro hac vice to make

a brief introductory argument on our motion for a temporary

stay.

THE COURT: I am happy to do so, Governor.

MR. SEARCHINGER: Your Honor, Tim Searchinger on

behalf of Conservation intervenors.

MR. GUZY: Your Honor, Gary Guzy from the

Department of Justice also for the United States.

THE COURT: Thank You

 


4

MR. COOPER: Your Honor, Albert Cooper, Assistant

District Counsel to the South Florida Water Management

District. I am also making a request to appear pro hac

vice. I do have a pending application to enter an

appearance.

THE COURT: Granted.

MR. BURGESS: Your Honor, Rick Burgess for the

City of Belle Glade and Clewiston.

THE COURT: Thank you. Good morning, Governor.

GOVERNOR CHILES: Good morning, Your Honor. If it

please the Court, for the record, I am Lawton Chiles, the

Governor of the State of Florida. I am an attorney admitted

to the practice of law in Florida in the federal courts.

I appreciate this opportunity to appear to provide

a brief introductory argument on the joint motion for stay

filed by the Department of Environmental Regulation in the

South Florida Water Management District.

After my brief comments, I would request the

court’s permission for Mr. Alan Milledge, Chairman of the

Governing Board of the South Florida Management District to

address the court.

Before turning over argument to the able attorneys

for the Department of Environmental Regulation, the Water

Management District to argue the detailed facts of the case,

on February 20, 1991, the parties to this case, with the

 


5

 

assistance of this court, agreed to a 60 day stay.

It was my hope and belief at that time, as it is

today, that much more could be accomplished if the state and

the federal governments put their head together, utilize

their respective scientific, administrative and legal

talents to work out a joint solution to these problems,

instead of directing their energies and talents at great

expense to the taxpayers to the burdens of protracted

litigation.

I am pleased to report to you that with the help of

this court in arranging an agreement for a 60 day cease fire

in the litigation, we are able to accomplish a level of

progress that I believe is unparelled in terms of how much

the has been accomplished for the Everglades in such a short

time.

To highlight what has been accomplished since the

entry of the stay, the Florida Legislature has passed a

landmark piece of legislation in the form of the Marjorie

Stone & Douglas Everglades Protection Act of 1991 which

provides a comprehensive and definitive legislative mandate

and blueprint for solving the water quality problems of the

Everglades.

That bill, among other things, allows for Storm

Water Utility District. It also allows for condemnation,

unlimited condemnation powers. I had the privilege of

 


6

 

signing this act into law in the presence of Florida’s First

Lady of the Everglades on May 7 of 1991.

I have appointed a new majority to the Governing

Board of the South Florida Water Management District. I am

confident that all members are committed to the protection

and restoration of the Everglades ecosystem.

The scientific consensus on appropriate interim

neutrient concentrations for in-flows through Everglades

National Park and the Loxahatchee National Wildlife Refuge

has been reached with the Everglades National Park

representatives, close to being reached with Loxahatchee

Wildlife Refuge representatives.

A summit conference on the Everglades has been

convened bringing together the most knowledgeable experts in

the state and the nation for the purpose of reaching

consensus on immediate and long term steps that have to be

taken to save the Everglades.

The United States Corp of Engineers has reversed

its previous position and has agreed to abide by our request

that it apply for state permits for the structures that it

operates to deliver water through the Everglades ecosystem.

The Corp deserves to be commended for its

affirmative decision to be part of the solution, rather that

a part of the problem.

Major progress has been made in resolving the

 


7

 

technical issues remaining in the lawsuit. The principal

area that we have not yet resolved is how to deal with the

due process rights guaranteed to third parties by state and

federal law, in the context of a settlement agreement,

approved and enforced by the federal court. We are prepared

to negotiate further on that issue.

Obviously, our task is far from over, but I am

absolutely committed in finishing the task of saving the

Everglades, and I am confidant that we have demonstrated

beyond any shadow of a doubt that the state and federal

governments can and should continue to work cooperatively as

partners to save our precious Everglades resource.

The scientific challenge we face in the next phase

of our efforts are to finalize the processing of permits for

the pumps and other structures operated by the South Florida

Water Management District that move water through and into

the Everglades ecosystem with the appropriate conditions

that will insure the quality of water passing through the

structures and protect the areas receiving the water.

Then to begin expediting processing of permit

applications for the pumps and other structures operated by

the Corp of Engineers as soon as such applications are

received to achieve the objectives I have previously

mentioned.

Then to implement a comprehensive regulatory

 


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program for the Everglades agricultural area, including all

the necessary permitting and compliance measures and

interpretation of best management practices for farms in the

Everglades agricultural area.

To complete the development of the Everglades Swim

Plan and to promulgate all rules and regulations necessary

for implementation of the plan to begin initial construction

of water management areas, as well as to continue the

planning, design and land acquisition necessary for future

construction of additional water management areas in order

to achieve and maintain water quality standards in neutrient

limitations.

As part of our motion for a stay, we have committed

for a schedule with several interim deadlines. If at some

point in the future the United States believes that we

failed substantially to meet any of the deadlines in the

scheduling permit, without good cause, it can come back

before the court to request that that stay be set aside.

I believe that the State of Florida has

demonstrated an abundance of good faith, as well as

competence and determination in solving the problems of

Everglades pollution since I took office.

I urge to facilitate this effort by granting a

further stay. I will also mention to the court that at the

time that I took office, representing the South Florida

 


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Management District was a very competent maybe firm of New

York lawyers who were pretty good litigators and they had

billed the State of Florida a tremendous sum of money over a

tremendous number of years and loved to litigate.

We no longer have that firm and we are asking now

that we terminate some of the litigation and not have to go

through all of the depositions and not go through that

expense, but spend our time and effort towards trying to

solve this lawsuit.

There are some remaining differences, as we set

forth, but we think to allow the parties the opportunity to

work out their remaining legal and technical differences, we

need a stay. These differences, in comparison to the

progress we have made, through the cooperative efforts and

opportunities that lie before us I think are relatively

minor at this stage.

I would like to ask the court to hear a brief

statement from Alan Milledge who will then ask counsel for

the Department And Water Management District to carry on the

with the more detailed legal and factual issues.

I thank you for the opportunity to address the

court. I would be happy to try to answer any questions that

you might have.

THE COURT: Why don’t we wait on that, Governor. I

am pleased that you took the time and come and tell us what

 


10

 

you felt we ought to do.

GOVERNOR CHILES: Thank you, Your Honor. We had

requested a stay through next July. We would certainly be

willing, if the court feels that that stay is too long, to

go with whatever the court would feel.

We are seeking enough time to go through our

process; and as I say, we are ready to abide by any

milestones that we should along that. I thank the court.

THE COURT: Thank you, sir.

MR. MILLEDGE: Good morning , Judge

THE COURT: Mr. Milledge.

MR. MILLEDGE: I appreciate the opportunity to

present some introductory remarks on behalf of the South

Florida Management District. As you already heard, I

am now the Chairman of the Water Management District.

I believe that you should be aware of the

commitment of the present governing board to Everglades

protection and restoration. Just two months ago I was on

ordinary attorney plying his trade. I had the good fortune

to be a part of Governor Chiles campaign, and in particular

to help draft the environmental papers.

The principal one of those dealt with Everglades

restoration. It represented a strong commitment to

Everglades restoration and, indeed, I think it was a big

factor in the campaign and, indeed, in his election.

 


11

 

Settlement negotiations, I was appointed on March

7th to the governing board, along with 4 others, a governing

board of nine.

THE COURT: You are the chairman?

MR. MILLEDGE: I am, and I was within a week after

that elected chairman. The settlement negotiations were on

going at that time in a short time after that, we, those

of us with the federal government and the DER and the rest

of the state system agreed on both interim standards,

pollution standards to be achieved for the park and the

refuge and interim dates, 1997, and we agreed on the long

term or permanent dates, the year 2002, roughly a 5 year

horizon and a 10 year horizon, These dates are contained in

the offer of judgment.

Also in March, within just a couple of weeks after

our appointment, we began to pursue a legislative program.

That is, if we are going to be required to undertake this

massive job of Everglades clean up, we needed to have

clearly the power to acquire the necessary lands and to be

able to assess the agricultural interests their fair share

for that, and so we also needed a special regulatory

authority to deal with this somewhat special are of

concern.

Some said we didn’t have any chance to get this

legislative package through because half the legislative

 

 


12

session was really already over, but in April we moved our

bill through the House, in the Senate. It was passed by

both Houses in April and signed, as the Governor said, on

May 7th.

Within 7 weeks after the appointment of this new

board, we were given sweeping new powers. It is sweeping

legislation because it establishes a huge public works

program. Some say 100 million dollars. Some say as much as

4 hundred million dollars.

We were given power to acquire land and to assess

the cost of the land and the construction without any caps.

That is our acreage was not capped that we can acquire, nor

the amount of money we can assess the agricultural

interests.

While all this was going on, the settlement

discussions progressed, but the stay ran out on April 6th.

We, the DER, and the South Florida Management

District had agreed with the federal agencies on pollution

goals and achievement dates, and we had committed to obtain

them with whatever acreage and dollars were required.

Nonetheless, the district attorney noticed 90

depositions, the first of which were scheduled for May 6th,

and on it goes.

As you know, this litigation has been immensely

costly and time consuming and it has been very angry

 


13

 

litigation. All lawyers who are a part of that tableau of

anger no longer represent us. It is not possible to build

programs and solutions while the agency is consumed in

litigation.

We desperately need our technical staff so that we

can get on with Everglades clean up. We have opted to build

and to move forward. Our first contract for construction of

levies around one of the new neutrient removal areas has

been sent out for bid.

Those contracts, Your Honor, will be awarded June

8th of this year. This is the documentation here and the

first construction of the clean up areas will commence

approximately the first week of July.

By July 1st we will have a plan and a permit draft

application for the entire interim removal system designed

to achieve the agreed interim standards. By July 1st of

this year, in 6 weeks we will have the revised Swim Plan,

revised to include the expanded neutrient removal system,

and also by July 1st our draft of the agricultural area

regulatory plans will be submitted.

As soon as we pass the legislation, or as soon as

the legislature passed the legislation, I ordered our staff

to create the most rapid schedules, Your Honor, for the

various chores.

The chores included the engineering for the

 


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neutrient removal areas, the permits, the compleation of the

Swim plan, the creation of the regulatory program for the

agricultural areas.

These are they, and they provide for extremely

rapid movement of this process. I commit to you that we

will move this part of the process as rapidly as we move the

legislation.

A stay is vital to Everglades clean up. Without

it, we lose 40 employees to the litigation. Those who are

scheduled to be deposed and more will be scheduled for sure.

It is the technical staff that is being deposed

and, of course, it is the technical staff that we must rely

on to rapidly move forward with Everglades clean up.

Ironically, if you entered an order of any kind, mandatory

injunction or any kind of order of any type, this work could

not be done faster then we are presently moving.

This governing board is committed and this

administration is committed. We have already proved that.

So we ask you to help us get the job done for our

children and our grand children.

THE COURT: All right, sir. Thank you, Mr.

Milledge. That program that you are holding in your hand,

do we have a copy of that?

MR. MILLEDGE: The basic dates are a part of the

offer of settlement. This is a much more detailed version

 


15

 

of it.

THE COURT: All right.

MR.MILLEDGE: Your Honor, if I may though --

THE COURT: Well, you don’t have to do it now. If

you can get us a copy of it, I would appreciate it.

MR. MILLEDGE: All right.

THE COURT: Unless it is confidential.

MR. MILLEDGE: No, not a bit.

THE COURT: All right. Thank you.

MR. GOUGH: Your Honor, Robert Gough for the

Florida Department of Environmental Regulation.

THE COURT: Yes, sir.

MR. GOUGH: With your help, with this Court’s help,

we gave peace a chance a while ago and in that 60 day stay,

more was accomplished then it the two and a half years of

litigation in this case.

Some would assert more was accomplished than in the

previous 25 years to save the Everglades. Governor Chiles

and Mr. Milledge’s appearance here and Secretary Carol

Browner is also present here. Mr. Timer Powell, who is the

new Executive Director of the Water Management District are

also present here.

Their presence underscores the total commitment of

our agencies to make sure that we get a good Swim plan that

effectively saves the Everglades.

 

 


16

The type of stay that we are seeking today is

detailed in an 8 page exhibit to our motion for a stay. It

sets for the statements of principles, objectives and

schedules.

The schedule has numerous interim objectives and

deadlines, and we are asking for a stay throughout the

process of -- actually the schedule extends beyond one year.

We are asking for a stay through the first year.

In that first year there are no less than 12

interim objectives and deadlines, any one of which if the

Water Management District or the department fails to

substantially meet, then the United States, of course, can

come back to this court and seek to have the stay set aside.

We think it is a fair and equitable stay, fair

and equitable to grant a stay in recognition of the

commitment of the Governor and the Water Management District

to save the Everglades.

We believe we have compelling legal grounds to

grant a stay. First and formost of that is the enactment of

Margorie Stone & Douglas Protection Act of 1991. That

act had a sole single purpose, and that was to facilitate

the savings of the Everglades.

It sets forth specific means in which to accomplish

that task. I would just like to highlight some of the

specific means. That act requires adoption of a Swim Plan.

 


17

 

It requires a Swim Plan to bring the Everglades water

quality in compliance into the state water quality

standards.

THE COURT: That’s a new Swim Plan, you mean.

There has been one hasn’t there?

MR. GOUGH: There hasn’t been a Swim Plan adopted.

A draft was submitted to the Department for review, as it

must be under 73.456 and it went back to the Water

Management District with our comments and then the process

was interrupted, partly because of a request of the United

States to ask the Water Management District not to adopt the

plan pending the appointment of a new majority or new

members to the board by the Governor; also, by the agreement of

the United States, the Department and the Water Management

District to establish a technical team of experts to help

determine appropriate interim water quality standards.

The new Swim Plan, the United States suggests that

the whole process had to be started over, but that is I

think an inaccurate belief. The Swim Plan is very large,

but the new changes that will be required are not large and

by large, to a great degree have already when accomplished

by the workings of the joint technical team comprised of

experts from the United States and the state agencies.

So we do anticipate that the law requires us to

resubmit the Swim Plan to the state agencies. There are two

 


18

 

steps of review. The first review under 373.455 requires

the district to submit the plan to several state agencies,

the Department of Environmental regulation, the Department

of Natural Resources, the Department of Agriculture, the

Department of Community Affairs and others and actually

local governments to have an opportunity to comment on it.

The Water Management District then considers those

comments and resubmits it under 373.456 Florida Statutes to

the Department and for a determination of consistency with

state water policy and the state comp plan. This is not

going to be lengthy program, as has been suggested in the

opposition by the United States.

In fact, you just heard that by July 1st this will

be, the revised Swim Plan will be submitted to the various

state agencies for review under that process I just

outlined.

That first step of that process goes to several

state agencies. The agencies have 60 days in which to

submit their comments. The second process that comes solely

to DER for review for state water quality consistency, the

Department has only 30 days. So we are not talking here

about massive review of the Swim Plan.

We don’t have to re-invent the wheel on the vast

majority of it and we are not talking about a great deal of

time loss in the review process.

 


19

 

If I may get back to the highlights of the Marjorie

Stone and Douglas Act, I left off by saying that the act

requires a Swim Plan to insure that the water quality in the

Everglades is in compliance with state water quality

standards.

It sets forth a period of interim water quality

standards for 5 years. It has accomplished that and then,

if necessary, a renewal of interim permits for another 5

years to get into compliance with the ultimate water quality

standards.

The act requires the Swim Plan to assure a proper

hydro period for the Everglades, and a proper hydro period

is very important. It is not just water quality, but you

have to have the proper level of water in the ecosystem at

the proper times in order to have a healthy ecosystem and

the Act requires that that be accomplished.

The Act provides third party statutory rights for

review and for administrative review and judicial review to

protect the rights of third parties. The Act requires the

acquisition of land for the water management areas which are

the neutrient treatment areas that you heard Mr. Milledge

say that the Water Management District and the state are

committed to get whatever acreage is necessary.

Environmental intervenors have suggested that we

are only going to produce some 17 thousands acres. That is


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an incorrect reading of the state’s position.

The state is committed to take whatever lands by

eminent domain power granted to them by the Everglades

Protection Act and using the funds granted to them by the

power to create special taxing districts, if you will, which

are called storm water utilities in storm water benefit

areas.

We are required to take what lands are necessary as

shown to us by the best available science at the time and we

believe that we are close to an agreement with the

scientists of the United States on how to compute that

acreage, and that that agreement will be shortly reached.

If I may go on, the act provides, as I mentioned,

eminent domain power for the purpose of taking lands from

water management areas. The Act requires and authorizes

development of the special taxing district that I mentioned,

the storm water utilities and the storm water benefit areas.

The Act requires the development of a permitting

system for issuing permits to structures that discharge

waters into the Everglades ecosystem. The act allows

interim permits for 5 years, renewable for another 5 years.

The Act allows interim water quality standards for

those permits. Ultimately designed with those, that first

5 years or, if necessary, the second 5 years to bring water

quality in the Everglades ecosystem up to state water

 


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quality standards.

The Act requires that when the Water Management

District submits its permit application to the Department of

Environmental Regulation, that that permit application

include a regulatory program, and you heard Mr. Milledge

state today that on July 1st they will be submitting to us

their proposed regulatory program.

The Act requires the Water Management District to

initiate rule making by October 1st, 1991 allowing for a

master permit.

Finally, the Act provides that the Water Management

District must apply to the Department for its first 5 year

interim permit by a deadline of October 1st, 1991.

Now, let’s stop to remind ourselves what this case

is all about. The United States comes to this court

claiming to be a citizen of Florida bringing a citizens suit

to enforce Florida’s environmental laws, to require permits

for water control structures in the Everglades agricultural

area and to require compliance with state water quality

standards.

Given the directions that the legislature have

given to us through the Everglades Protection Act of 1991,

how can the Department require the Water Management District

to apply for permits before that date and still be

consistent with the terms of the Everglades Protection Act,

 


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or at least it would seem inappropriate for us to do so,

given the express terms of the Everglades Protection Act

that says they have until October 1st, 1991, to apply for

those interim permits.

Likewise, it seems inappropriate for the Water

Management District to require other entities in the

Everglades agricultural area to apply or to require new

permits or to modify existing permits before April 1st, 1992

or before the district adopts a master permit rule.

How can that be consistent with the express

provisions of the act that says that such new permits and

such modifications should not be undertaken before the April

1st, 1992 deadline or before the time that the Water

Management District adopts a master permit rule, whichever

occurs first.

Whichever occurs first is important because if the

rule for some reason or other gets tied up in legal

challengws, we still have that April 1st, 1982 back stop

that says that at that point we can go forward and require

new permits and we can modify existing permits in the

Everglades agricultural area.

The United States claims that the Marjorie Stone &

Douglas Protection Act does nothing more than realine the

existing authorities and requirements of the law, authorities

that DER and Water Management District have.

 


23

 

It is true that the Act has a savings clause that

says basically nothing in the Act alters the authority of

the Department of Environmental Regulation or the Water

Management District to control pollution, but one cannot

read that savings clause so broadly as to render meaningless

the great majority of the language of the Act, and that I

have just highlighted with you.

The rest of that Act is not just meaningless fluff

that the legislature put in there for some obscure reason.

They had a purpose. They had an intent. They had a vision

of how to solve the Everglades problems and they have

instructed the state agencies how to do it and to get on

with the jobs and we are going to do that.

The United States stand before this court seeking

to enforce state law. There are no federal law questions in

this case. Yet it seeks to ignore some provisions of the

state law. In fact, it seeks to ignore most of the

provisions of the Marjorie Stone & Douglas Protection Act.

It cannot do that and the Department and the Water

Management District cannot do that.

I submit to this court it should not allow that to

be done. The United States has even conceded the issue. If

I may quote from their opposition at page 8, they state and

I quote, "the new legislation suspends any action regarding

the issuance of new permits or modification of old ones for

 


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specific neutrient limitations in the EAA," meaning the

Everglades agricultural area, until April 1st, 1992, or

until a master permit is adopted, whichever occurs first."

This case is simply no longer ripe for judicial

review because it would be inappropriate to grant the relief

that they seek, in view of the provisions of the Marjorie

Stone & Douglas Protection Act.

Furthermore, whether the state fails in some way to

comply or follow the dictates of the deadlines and the

trigger dates of the Everglades Protection Act, at this

point in time, the first one is occurring on October 1st,

1991, the statutory deadline, it is just completely

speculative. It is not right. They are saying that we are

not going to do it and it is completely speculative at this

time.

THE COURT: Well, I think what the government is

saying is that you had some laws in place before that were

not observed. How have things changed by the imposition of

new laws?

MR. GOUGH: We have a new governor. We have a new

board of the Governing Board of the Managemet District.

There is a new executive director of the Water Management

District. There is a new secretary of the Department of

Environmental Regulation and there is a new statue telling

 


25

 

us exactly how we are going to solve this problem.

The Governor set forth to you the accomplishments,

the things that have changed in the 60 day stay and the few

days of the extended informal stay after that, and the

Governor has committed to the list of further objectives

that he stated when he spoke to you, and submit that

things have vastly changed and that a stay is certainly most

appropriate.

The United States says that even if that is so,

there is still contract claims and nuisance claims pending;

therefore, a stay should not be granted. As to nuisance, I

would quote to you from the footnote of the Eleventh Circuit

Court of Appeals in their decision on an interlocutory

appeal in this case.

Footnote ten of that opinion states, and I quote,

"the nuisance claim then does not add a substantive count to

the United States other claims arising under state law."

So there is not any independent nuisance claim in

this case. There are contract claims, but those contract

claims really involved, intricately are involved in how you

solve the Everglades problem. I think in the interests of

judicial efficiency and equity, that it would be appropriate

to stay those claims as well.

I would just like to make a very, very brief

comment on mootness. In this case, the Department of

 


26

 

Environmental Regulation filed a counterclaim against the

United States Corp of Engineers because they own and operate

several of the water control structures in the Everglades

ecosystem.

In fact, under our interpretation of the law, they

are operators of all of them because they have power under

federal regulations that dictate how they are operated and

we think that within the meaning of the Florida statutes

they are operators and, therefore, have to require permits.

They claim and they filed in court a statement

under oath that the Corp would apply for such permits and

the Governor commends them for doing it, reversing any

issues of sovereign immunity for another day.

However, they claim the fact that the Water

Management District in the United States in its opposition

claims the fact that the South Florida Management District

has actually applied for permits does not moot the United

States claim against the Water Management District and the

Department.

Hear you have the United States saying on one hand,

"our unfulfilled promise to apply to permits moots our

counterclaim," and the Water Management District actual act

in making the application for the permits that they brought

this suit to compel does not moot their claim against us.

To me it is a pure case of what is sauce for the

 


27

 

goose is sauce for the gander here.

We think that their claim is moot on that basis and

that’s a further grounds for staying this case in accordance

with the stay that we have requested.

Abstention is another area that we raise in our

motion. An abstention to me is an incredibly complex area

of the law, but I think abstention, in my view, arises out

of the concepts of federalism on which this great country is

granted in which there is limitations on how the Federal

Government, including federal courts, ought to interfere and

impose themselves upon the independence of the various

states.

In this case I submit is one which meets that

criteria. We have a newly enacted statute that has never

been interpreted by atate courts, and I would refer you to I

think primarily the case of the Louisiana Power versus

Tibadeu at 360 United States 26 in 1959.

In fact, the new statute set forth administrative

and judicial processes that recognizes paramount state

interests and involves complex questions of law and I think

it meets all of the classical parameters under which a

federal court should abstain.

We are not asking the court to dismiss this case.

We are asking the court to grant a stay.

The United States attacks the remedy that we have

 


28

 

proposed in setting forth in our statement of objectives,

goals and principles, and I would like to just quote to you,

if I could, from page 6 their opposition, and I quote.

"Twice the United States presented to the District

the framework that would be necessary and practicable

through application of the defendants’ existing authority to

provide effective relief for the park and the refuge."

Then skipping a sentence and picking up again I

quote, "The United States has told the defendants

consistently that adequate relief for the park and the

refuge must," and then they go on and they enumerate 5

essential elements of an adequate remedy and relief.

I would just like to talk about each of those 5

elements. The first one that they mention and I quote, "Is

performance based on standards for the park," meaning the

Everglades National Park and refuge, meaning Loxahatchee

Refuge in-flows.

The Department and Water Management District and

the Governor have committed to such standards as set forth

in appendix A an B to exhibit B of the motion before the

court.

These interim standards, the standards that are in

that, in our motion come from the work of the joint

technical team comprised of experts from the Department, the

United States and the Water Management District. We didn’t

 


29

 

just conjure these up out of the air. That’s where they

came from.

The second essential element of relief that the

United States enumerated was, and I quote, "that the

standards in the park and refuge in flow is to be supported

by agressive enforcement measures in the Everglades

agricultural area."

The schedule that the Department and the Water

Management District and the Governor and Secretary Browner

commit to in our motion calls for the adoption of a rule for

a Swim Plan by January 17, 1992.

You heard today that we should be getting a draft

of that by July 1st of this year. The Everglades Protection

Act requires the Water Management District permit

application that they have to have into my department by

October 1st of this year to have a regulatory program aspect

in it.

The new administration has shown the will and the

commitment to vigorously and effectively enforce such

regulatory programs. So that essential element of the

remedy has been accepted and proposed by the Department in

the Water Management District.

The third essential element the United States said

we needed and I quote, "an expedited time table with

mandatory deadlines for implementing specific remedial

 


30

 

measures in meeting interim and long term standards."

I submit this is precisely what is set forth in the

schedule attached to our motion.

The 4th essential element that the United States

says is necessary for an adequate remedy, and I quote "a

sceintifically and technologically defensible project, such

as the proposed water management areas for supplementing an

aggressive EAA regulatory program."

Those elements are set forth in our proposal. We

have proposals for beginning the building of the first water

management are which is referred to as the ENR Project.

You heard Mr. Milledge say that the contract for the

construction of the first stage of that has been put out for

bid. I forget what he said, whether it was this week or it

has already gone out.

The envirornmental intervenors have looked at that

and misconstrued our intent, saying that we intend to limit

that to 17 thousand acres, and that’s just not our intent.

If we didn’t make it clear, we apologize, but that is not

our intent.

There is a commitment on the state to take whatever

acreage is necessary, based on the best science available,

to compute what acreage is necessary. If we miss it and we

need more some time in the future, then we will exercise the

eminent domain power and taxing authorities to go out and

 


31

 

get it and build it.

Furthemore, as I mentioned, we are confidant that

we are close, our scientists in the Department in the Water

Management District and the scientists in the United States

and the environmental intervenors are close to agreement on

how you compute what scientific formulas you use to compute

that acreage that you need.

So we anticipate that that is not a problem; that

it is fully incorporated in what we offered to do in

and comply with in our own motion.

The fifth essential element that the United States

says is necessary for effective relief, and I quote, "is a

realistic and obtainable funding scheme."

We have that. The Everglades Protection Act of

1991 gave it to us. It gave us the power to take land by

eminent domain, as much as is needed. It gave us the

power to raise money for taxing through the storm water

utility and through the storm water benefit areas to raise

the necessary funds to acquire, build, acquire the land,

build the projects and operate the projects. So it is

there. It is all there.

Each essential element of the remedy stated by the

United States is, in fact, in our statement of principles,

objectives and schedules to which the Department, the Water

Management District and the Governor has committed to

 


32

 

accomplish.

This reflects the progress that has occurred during

the last 60 day stay, plus the interim stays that have

occurred since the informal stays that occurred up until

today.

In conclusion, just let me say the United States

says we should stay on a course of the litigation. We say

let’s stay on the course that we were on during the 60 day

stay and continue with the remarkable progress that we’ve

been able to achieve under that regime.

We say let’s put the lawyers back on the leash and

let the scientists and the engineers and the policy makers

proceed with the savings of the Everglades and the

development of a Swim Plan that will insure the restoration

and the protection of the Everglades.

We say that a stay is appropriate at this time and

we pray that the court agree with us and we urgently request

the court to rule on our motion today because tomorrow the

madness begins again.

We are looking on the average every day of 4 to 6

simultaneous depositions which are fully staffed by good

counsel and is probably going to run into the costs of

hundreds of thousands of dollars a month.

Your Honor, I believe counsel for the Water

Management District has a very brief comment that he would

 


33

 

like to make.

THE COURT: All right.

MR. COOPER: My name is Abner Cooper. I am

Assistant District Counsel for the South Florida Management

District. I would like to give some practical reasons why

the state should be granted, really for the benefit of the

audience, who may not be familiar with the with a lot of the

legalese.

In a nutshell, it is the right thing to do. It is

the right time to do it. You have heard the commitment from

the leaders of our state to carry out the mandate of the new

legislation and the credibility of the District, DER and

our leaders is on the line at this point and they are

willing to deliver.

The Governor indicated that he’s taken great

strides of late and Governing Board Chairman Milledge

outlined an ambition schedule that lays ahead of the

District for the future.

With the passage of the Everglades Protection Act,

an entire framework is now in place for restoration. The

United States Attorney’s Office may argue that the

legislation is really fluff, but I would make a prediction

that if, in fact, we fail to meet any of the deadlines in

the statute, we will be receiving a very large well crafted

complaint from the U.S. Attorney’s Office pursuant to that

 


34

 

legislation. They know is has teeth. I am sure they will

use and rightfully so.

I remember the Governor used a wonderful metaphor

at the Everglades summit conference back in February. He

said, taking about restoration, "that ultimately we will be

designing a car, but right now we have to learn to walk."

It is exactly that common sense approach that’s

really been fashiond into the legislation. It sets out a

short-term approach and a long term approach to solving the

Everglades problem.

The short-term approach is an interim permit that

DER will administer and review as well as District rule

making by which the District will regulate the Everglades

agricultural area.

The long term solution is Swim planning. Chairman

Milledge gave us an excellent overall review of all the time

tables and milestones that have been fleshed out under the

Act.

I would just like to touch on a few of those. The

5 year interim permit, it is on a very tight time frame.

The board has to review it in less than 3 months. The

purpose is to make sure that the District structures are in

compliance with the short-term water quality strategy.

In addition to the normal storm water permit

requirements, the Act has 4 special elements and the

 


35

 

application provides that it contain ambiant concentration

levels for phosphorus within the entire EEA, proposed

interim concentration levels designed to achieved compliance

to the maximum extent practicable, strategies for achieving

and maintaining compliance with regard to land acquisition,

water treatment facilities, funding mechanisms and

regulatory programs. That’s quite a list of items.

Also schedules to carry oust such strategies and a

modern program to measure its progress. And again I can

assure you that the United States Attorney’s Office will be

watching that application very diligently.

The legislature recognized the practical limits as

to what can be expected within the short-term approach in

the legislation. Consequently, they created a process to

allow the District and DER to reach interim targets and then

on a long term phase to reach long term targets.

The second component in the short-term approach is

District rule making and a master permit and this will be

the actual mechanism by which we regulate EAA farm

discharges of nutrients.

Again a tight time frame, September, ’91 we have to

provide notice of rule making less than 4 months; the rules

that are to be adopted by January, 1992. Two rules will be

promulgated.

One is an Everglades Swim rule. We will use a rule

 


36

 

approach which will result in a much more effective

regulatory program, much less room for challenge. It is a

prudent way to go. We will also we issuing a master permit

rule. It is a concept that is borrowed from the Lake

Ockeechobee Swim Rule that allows the one collective permit,

also a very efficient way.

THE COURT: Let me ask you a question.

MR. COOPER: Sure.

THE COURT: I want you to know fist that I have no

doubt as to the good faith of the Governor and Mr. Milledge

and those involved in this program.

The Governor mentioned that he was, among the other

items that he was concerned about, were the due process

right of others. Who was he referring to, if you know?

MR. COOPER: I think substantially affected parties

that who may be affected by any rule making or neumeric

limitations that are ultimately impose. It could be the

farmers, but basically within the EEA but basically, in any

event, who is affected, it is something really that the

District has no control over whatsoever. It is state law.

We have to live with it, as does any other citizen of the

State of Florida.

THE COURT: What I am wondering about, and I am

sure that you can, or those with you can supply the answer,

is, see, the Federal Government has an area of property that

 


37

 

is in bad shape right now.

There are laws that relate to the amount of

chemicals, speaking largely, that can come into those areas.

Now, why is it going to take so log to say to

whoever is doing the dumping, "we cannot do it any more?"

MR. COOPER: Well, Your Honor, to be honest with

you, I don’t think it is going to take that long. I think

there is a whole process that’s been outlined in the

Everglades Protection Act.

THE COURT: Well, you are talking about 5 year

periods.

MR. COOPER: Well, the rule making is going to be

adopted in 1992 and that’s to cover the whole, the entire

Everglades agricultural area. I mean, it is really an

ambitious undertaking, and we are committed to accomplishing

it.

THE COURT: I am sure you are.

MR. COOPER: But if I might add one point. I know

that the United States Attorney’s Office has indicated,

well, there is sufficient authority right now to start

regulating, but if you take a look at the two cases that

they cite, one is Devitt Farms where a defendant basically

had an out of court settlement and a consent order was

entered.

The defendant never challenged the principle that

 


38

 

the United States Attorney’s Office says the case stands

for. So it is just not appropriate. I don’t mean to

suggest that the United States Attorney’s Office is trying

to pull a fast one, but I think it just shows that there is

just not much law out there on this whole issue of water

quality regulation at this point.

THE COURT: Well, probably not. I am going to have

to ask you to kind of wrap it up because I do want to give

the government some time. Then, of course, we’ve got the

original purpose of our meeting which was the motion for

summary judgment.

MR. COOPER: We also have the motion for stay of

discovery as well

THE COURT: Yes. Well, that’s more or less tied in

with what you are doing right now.

MR. COOPER: The only other point was on Zellwood

which they also refer to. They didn’t read the case close

because Zellwood was a case where there was not any rule

making that occurred, and the administrative judge basically

determined that every land owner would be entitled to an

evidentiary hearing on the issue of water quality

limitations.

I submit to you that if the – and you have to go

through the full causation of showing an imbalance in

natural populations, ect. Basically you have the mini USA

 


39

 

lawsuit and we’d have that for every land owner, hundreds

and hundreds of land ownsers in the Everglades agricultural

area. I submit that we can handle one USA lawsuit. We are

not going to be able to handle 5 hundred or 6 hundred USA

lawsuits. That’s it.

THE COURT: Thank you.

MR. COOPER: Thank you.

THE COURT: All right. Mr. Lehtinen.

MR. LEHTINEN: Yes, Your Honor. I know that the

court has had the opportunity to review the pleadings, so

let me try to just summarize in a somewhat different fashion

and in a sense explain—

THE COURT: Well,, let’s say that we had have had

an opportunity to review the pleadings an I have been

advised about that.

MR. LEHTINEN: Well, thank you.

THE COURT: I have had several other cases pressing

on me. I did want to suggest to you, also, one other thing

before we get started, that I want you to know that the fact

that Governor Chiles, when senator nominated me as a

district judge is not going to make any difference.

MR. LEHTINEN: We are quite confidant that it

wouldn’t, Your Honor.

THE COURT: But I did want you to know that.

MR. LEHTINEN: We are in a sense related to that in


uparrow.gif (122 bytes)                                                                                                                                     40

 

a fashion. However, in a sense what I wanted to do was take

the opportunity to explain why the United States can be in

agreement with Governor Chiles and his staff on most

matters; why we can trust his good faith; why we can

encourage him, to the extent that we are citizens of the

State of Florida, to go forward with the program he has,

and, indeed, hope that these various programs prove to be

successful; that we can take that position, in concert with

him, and yet disagree about the effect of those position in

court today, because that is the only disagreement with the

Governor and the State of Florida, the effect of those

positions in court today.

You see, what this lawsuit is not about is about

permits. It is not about plans, either. It is not about

promises that have been broken in the past and that we have

confidence that Governor Chiles will keep in the future.

It is not about an administrative process that goes

forward year after year or month after month. What we did

was sue over the quality of this water. This is water that

came from the S-333 area, the S-12 structures just north of

Everglades National Park this weekend.

We sued over that water because it is dirty water.

We are prepares to prove in court today that as we speak,

Everglades National Park and Loxahatchee are receiving dirty

water, water which first violates state statutory water

 


41

 

quality standards and has for more than a decade; water

which, second, violates the contract which the that State of

Florida has with Loxahatchee and with Everglades National

Park; water which, third, constitutes a nuisance under

Florida common law which has existed since any of us,

indeed, any of us in this courtroom were born.

The reason that makes a difference, beyond the

rhetoric, is that an examination of our complaint shows that

we did not seek that permits be issued; permits which, if

issued, do not affect the quality of this water, have, in

fact, no affect on the lawsuit whatsoever.

We are quite satisfied if the state can produce

quality water without permits. We are satisfied and,

indeed, will be only satisfied when all of the plans and

processes have an affect on the water that’s in that glass.

As a matter of fact, from the viewpoint of this

courtroom, the reason we are in agreement with Governor

Chiles on the efforts, but argue that there can be no affect

in this courtroom, is that the court can take notice of

these actions only if and when, to quote a phrase from their

brief, if and when it has an effect on the quality of the

water in that glass.

Now, this confusion has led to a number of

different statements in their briefs along the way.

For example, that what the relief that the United

 


42

 

States sought was permits. That’s not the relief we seek.

We seek quality water. We have sued at various points and

claim points at various points that they failed to meet their

obligations, including permits, but their primary duty and

obligation is, in fact, under the laws of the State of

Florida, both DER and the Water Management District, to

produce quality water.

That, in fact, is the difference between the Corp

of Engineers and the State of Florida.

They say that what is good for the goose is good

for the gander. What is good for the goose is good for the

gander, that’s true. That is the applicability of the law

on those parties.

What the State of Florida needs the Corp of

Engineers to do is to apply for a permit. What the United

States needs the State of Florida to do is to produce

quality water. That’s the sum and substance of the

difference.

The legal obligations are substantially different.

The Corp relates the permits. The state relate to quality

water. Permits are secondary relevant only insofar as they

improve the quality of the water.

What the court can take judicial notice of is

numerous permiting systems throughout the United States are

utilized, in fact, to protect poor quality water rather than

 


43

 

to produce quality water.

The system of regulation is often captured by those

who are to be regulated. So the point again is that it is

the quality of the water itself.

The same is true with respect to references to

process. While process may be appropriate in the future,

and we encourage the governor’s leadership in that process,

until the process itself produces 43 thousand acres, for

example, in set aside ponds, not 3,700 and not 17 thousand,

until it produces a scientifically demonstrable number which

will have an affect, we should not take cognizance of it.

The promise to do best management practices or

regulation on the farmers should not have an affect in this

court until the actual regulation is known; until it can

scientifically be recognized as to what that regulation, the

specific steps that will be taken will do with respect to

the quality of water.

Now, the same error occurs in this constant phrase

about the change of circumstances. If this lawsuit were

about the permitting process, then when you change the

permitting process, which the state has done for time

immemorial and will do again, then you would have a changed

set of circumstances, but if it is about this water, I

haven’t heard anyone in court today say that this water is

any better today then it was 6 months ago.

 


44

 

In fact, Your Honor, the court can probably take

judicial notice that that water is either the same or worse

then it was 6 months ago. So, if the issue is water, there

is no changed set of circumstance, except as we presented

testimony years ago in this courtroom, more cattails today

then there were yesterday; more cattails scavenger species

in the Everglades at the end of this hearing then there were

before the hearing.

Now, the same error applies to this relevance of

the Everglades Bill. The bill, of course, if it eventually

has an effect, will be more successful then the first Swim

Bill. The first Swim Bill, as Your Honor will recall, was

1987 and this is the first time I’ve ever used my glasses in

court, so it is a first time for me.

In this courtroom in 1989, the Swim Act was

referred to, and these phrases sound like quotes today.

The Swim Act is a 1987 legislative effort and that

was said by counsel for the state in this courtroom in 1989.

It is a legislature effort that tells the District to take

this tough issue, tackle this tough issue.

We are not talking about pie in the sky. We are

not talking hypothetical programs. We are not talking about

what the state may do, what the District may do and to skip

some lines, "this is not some speculative argument I am

talking about."

 


45

 

The core of their argument in ’89 was that so the

point is that, and this was when they were asking for a stay

in primary jurisdiction in the state, "so the point is that

there will be soon, and I think the last date we are looking

at for final type action is the middle of next year, " and I

point out at the time middle of next year was last year.

"Early next year there will be a very forthright

tangible proposal to address the very contamination that the

United States is talking about in this case."

Then they go further, and I note that Governor

Chiles used the word "mandate," and believe that Governor

Chiles did seek a legislative mandate to use as leverage. I

think he wanted that mandate.

I think it is appropriate in his political capacity

to use the Marjorie Stone and Douglas Act as a new piece of

legislation so as to generate the kind of leverage and clout

that he needs to make sure that the legislation is passed,

but from the viewpoint of the United States, very similar

language was used two years ago that the new Swim law says,

in no uncertain terms, "you shall guarantee, when you are

done with this, for example, that there will be no violation

of state water quality standards." Additional quotes, and

"then this process is on a fast track." That’s what counsel

said two years ago.

"We will have a result, we hope, well, certainly by

 


46

 

next year at this time, but we hope sooner than that."

Then he says their program is not just the planning

process; that the government accused it of being a plan to

try to imply to the court, Your Honor, that it was soft;

that this just isn’t soft; that it will include penalties

and permits and everything else that is normal to an

environmental program.

Well, they have made that effort, Your Honor. I

don’t think that the past board should actually be accused

of not making that effort, but the fact is it may have

included an effort at penalty permits and everything else,

but it did not include any change in the quality of that

water, and that is simply the issue that’s at stake today.

Now, another point that is similar to that and it

brings us to these negotiations and to the specifics in the

proposals, of course, the offer of judgment under Rule 68

should not have been submitted to the court.

I think it is submitted because it has the phrase

"offer" and apparently some kind of effort to settle, but I

am glad that they presented that offer of judgment because

it gives Your Honor an opportunity to compare what specific

proposals would be to their offer.

Now, first of all, they cited on page 5 of our

brief that we would want specific performance based

standards for Park and Refuge and the Governor and I and Mr.

 


47

 

Milledge and I are somewhat in the same position here

because I think they turn in good faith to their staff and

their staff says, "we agreed on Loxahatchee."

I and Dick Stuart turn in good faith to my

scientists and they say, "we are not anywhere near close to

an agreement on Loxahatchee." So I think that these

gentlemen said in this court what their staff said and I

will say in this court what my staff say, and that is we do

not have an agreement on water quality standards for

Loxahatchee in a rim or final.

Now, again, I am wording that carefully because I

think the representations made to you are in good faith

by everyone who stands at the podium, but by definition, if

the United States says there isn’t an agreement, there isn’t

an agreement.

By definition, if the United States scientists say

that they are not close on Loxahatchee, then, Your Honor,

they are not close.

What it really points out, of course, is the

futility of standing at this podium and citing private

discussions, because private discussions will always be seen

differently by different people. That’s why the rule always

is that those private discussions or public discussions, but

are settlement negotiations, have no role in being cited in

court.

 


48

 

But I have to point out, it is my duty, that we

don’t have an agreement on Loxahatchee and, frankly, we

don’t have one on the Glades, either, because what we

thought we had was a number on the Glades they will commit

to, and what they will say, and you will notice it

throughout your pleadings is if they are willing to start

with the Glades number, but it may change throughout their

administrative process.

What we are looking for is a number that they end

with, not a number they start with. So we have had trouble

with the Glades number as well.

Point two. The aggressive enforcement measures, the

fact is what is that? What the counsel responded to was

that they have a date for adopting those enforcement

measures.

When they adopt those measures, I think Your Honor

should look at them, and I think they will be relevant to

this court, but the date for adopting those measures doesn’t

have any meaning. You do not know what the farmers are

going to have to do.

Here is the real test, Your Honor. If a farmer

read this, would he know what he had to do? No. He knows

he has got to wait until something is adopted. Then it will

tell them what he has to do with his run off water; how much

he has to retain; how he has to clean it up, and so forth.

 


49

 

So, is a farmer cannot understand what the

regulatory program is, because it is just not here, then

Your Honor certainty cannot. Specific remedial measures,

set asides of land, how much acreage is going to be set

aside?

Apparently 17 thousand, by the statement of counsel

for the state, is not good enough. I don’t think it is good

enough , either. Our scientists don’t think it is good

enough. We think 17 thousand is in adequate,

If they said 17 thousand was adequate, we are

prepared to argue it is inadequate, and so much for the idea

that substantial progress is being made.

If, on the other hand, they say 17 thousand isn’t

enough, and that’s what I seem to hear from them, then we

need to wait until they get to 43.

When they get 43 thousand or 35 thousand, or

some number that science can be litigated in this court or

agreed upon as adequate, then we would be at that point.

The same thing about the funding mechanism. The

funding mechanism causes me to make a comment about the

bill. I believe that different statements regarding the

characterization of an event in life, different statements

can be appropriate and true based upon the different

context.

I think that for state political leaders to

 


50

 

characterize the 1991 law in a certain positive fashion, in

order to generate the momentum necessary to enforce it is

appropriate and does not represent any misleading

whatsoever, but I believe that in this court I have an

obligation to point out that you can characterize the law in

almost any fashion.

Really, that’s why the court should wait until the

law has an effect. We hope and believe that the state

people will use certain provisions of the law, as they have

not used prior provisions of previous laws, but that they

will use certain provisions to have an effect.

But if Your Honor is being asked to read the law

and say that the law will automatically have this effect,

then the counsel for the United States is obligated to point

out that when you look at that law, as counsel said, some

have said it is a major step.

Some have said it is the most progress ever made on

the Everglades, but I will tell you this: Some have said

that to restart the Swim process is to have repealed the

1987 Swim law and lost 3 years.

Now, counsel for DER says that they don’t have to

restart, but the memorandum attached to our brief from

counsel for the Water Management District to the board says

that the law requires that they restart with brand new

notices.

 


51

 

Now, whatever motivation existed for restarting the

Swim process, I don’t want to attack. I believe that the

state could have a method to that madness, but when that

method is seen, when the water quality is changed because

they stalled and restarted over again on the Swim process,

their plan will be vindicated.

At the present time, all we know is that we are

restarting a Swim process which was represented to this

court two years ago as already going to solve the problem in

’89.

Likewise, what can be said about the bill is that

the interim permits can end up without achieving water

quality standards for 15 years because the law says 5 years

for an interim permit. You can renew it for another 5 and

then you’ve got 5 more years on your final permit. That’s

15 years from now.

Now, I don’t believe that’s the intent of the

state, but insofar as we are left only with the law, then I

am compelled to point out 15 years is not quick enough.

Likewise, the Water Management District used to

have incipient rule making power. This law wiped it out and

the little bit I know about state administrative processes

is that an agency that loses its incipient rule policy that

looses its ability to base decisions on incipient

administrative policy has lost substantial power.

 


52

 

Likewise, as well, the storm water utility plan is

a positive aspect, but District Counsel have written memos

over the years that said they could create benefit districts

and levy fees to the farmers who benefit from the benefit

districts, and that is particular piece of legislation,

while a positive step, is not unique in that respect at all.

It also has substantial caps on the kinds of fees

that can be levied on to the farmers and substantial

litigation will result in a burden of proof on the District.

Again, the effect of that is to be seen, but that’s

my very point, that if the law is considered good by some,

that’s because they have a plan with respect to that law and

I don’t question that, but the law itself cannot stand for

the achievement until the plan that stands behind the law is

achieved.

As well, the condemnation authority. Your Honor

can look in Florida law and see general condemnation

authority for the District. Today, the District lost that

condemnation authority until a Swim Plan or a permit is

achieved.

They believe they have gained clarity in the

condemnation authority in return for being unable to

exercise it until they achieve a permit. That’s a political

judgment that they are entitled to make, but it is not one,

a leap of faith that Your Honor should make with respect to

 


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which condemnation authority was better.

The comment about collective permits is an

interesting one. The collective permits may work, and I

commend the state, if and only if they work. It is easy to

argue that collective permits represent the successful

effort of the agricultural interests to no longer have to

have individual farms permitted by the District; that they

fought individual farms permitting for many years; that individual

permitting was required and that after 1991 they have

finally achieved their goal, which is to escape individual

farms being placed under individual permits.

Instead to have a collective or master permit

issued to the entire Everglades agricultural area held by a

collective entity which the governing board of which may be

controlled by the farming community, all of which is to be

seen.

Now, I am not an expert, nor is Your Honor in the

difficulties of individually permitting those farms. The

state would be correct if it said, "our option for a

collective permit does not represent back tracking, in our

judgment."

That is to say they could make that judgment, but

until the releaving the individual farmers of the burden of

getting permits is vindicated by the success of s collective

permit, neither Your Honor nor the United States could reach

 


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that conclusion.

So let we just add these few remarks. One affect

of believing that this lawsuit is about permits and

administrative process, and not about water, is that the

state has consistently and today still inconsistently pleads

before this court.

The next issue before this court is the motion for

summary judgment in which the current pleadings filed by

the State of Florida, both entities say that water is not

dirty; that we are not degrading Everglades National Park

and Loxahatchee.

Now, if the state is so committed to cleaning up

the degradation and so committed to eliminating these

depositions, they why is Susan Ponzoli having to put people

on deposition to prove one thing and one thing alone, that

this water is dirty?

If the legislature said, "this water is dirty," if

the governing board believes this water is dirty, if DER

believes this water is dirty, and if proving this water is

dirty is going to divert them form cleaning up the dirty

water, then why won’t they stand at this podium and say that

this water is dirty?

Why won’t they eliminate all of these depositions

that are necessary for the United States to conduct to prove

what they otherwise are willing to assume, but not recognize

 


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in this court?

Now, that kind of inconsistent pleading is similar

in a number of other examples, but I think probably the

best, and I will leave it at that, is the not denial of the

allegations that the water that the Park and the Refuge is

receiving is, in fact, and has been for some time in

violation of the various water quality standards, the

substantive standards.

The other area that the approach to this being one

of permits, and one of process, rather than one of water, is

that it causes the state to effectively overlook all of the

pre-existing law and all of the pre-existing authority to

undertake the remedies, all of the pre-existing obligations,

the 1991 Outstanding Water Law, which wasn’t a permissive

law.

I mean, I commend again the Governor in having a

legislative mandate, but 1979 was a pretty good mandate. It

says, "period, you will, must, period." It uses all those

verbs that fit the definition of a mandate and ’87 was a

pretty good mandate. Counsel properly described the ’87

Swim law and then the ’91 Swim law.

We are being asked to start over in 1991, to

overlook the pre-exiting violations. That’s the sense in

which I agree with counsel, that it is purely speculation

for the United States to say that Governor Chiles will or

 


56

 

will not succeed in enforcing these provisions of law.

There is no question that Governor Chiles will

attempt and will attempt strongly and his secretary, as

well, but the question of whether or not the Governor will

succeed, and the Government’s own description of what it is

like to be a United States Senator and what it is like to be

a governor, and that is where you have all this power and

President Kennedy when he was in the Cuban missile crisis

and all of the literature indicates that chief executives

have difficulties in consistently wrapping these massive

administrative bureauracies into submission, so to speak.

So the question as to whether or not the Governor

will succeed is pure speculation. Now, if that water was

clean, then speculation about whether it will become dirty

has place in this court, but if the condition today is

that the citizens of the United States are receiving dirty

water, then by the same token, speculation about whether or

not it will be cleaned in the future has no place in the

court.

We do not speculate and project a lack of good

faith or failure on the part of the state. We simply

start with the right of the United States to be in court

because the law is being violated. Our right to prove the

law is being violated. That’s our motion, or those are our

depositions.

 


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We started with that and say that further speculation

about what will happen in the future, we agree with the

state, is of no great concern.

The last thing, Your Honor, I feel compelled to say

is that we are not apologetic for being in court. Article 3

of the Constitution of 1787 puts controversies in which the

United States is a party in this court.

The United States courts have litigated many

issues. This has often been compared to prison over

crowding. It is not because the remedies we seek and the

oversight of the court is much less, but the federal courts

have provided remedies for United States citizens, and the

framers of the Constitution knew what they were doing when

they, with the consent of all of the states, put

controversies to which the United States is a party before

Your Honor.

Article 5 of the Florida Constitution, much to the

chagrin of every other branch of government, Article 5

creates an independent Florida judiciary in which Your Honor

now stands in place of, by virtue of Article 3. So the two

relevant concepts are Article 3, U.S. and Article 5,

Florida.

The United States is not apologetic for being in

this court today. The only thing we apologize for is that

we allow this to go for decades; that we did, in fact,

 


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accept primary jurisdiction and mootness and the stays.

We accept that explanation far too long, and the

United States should have been before you, or of your

colleagues years ago, rather than being in front of you

today.

That is the only circumstance under which the

United States has anything to apologize for for utilizing

the courts, and that is the failure to utilize the courts

when we were aware of the demonstrable failure of the

regulatory and executive branches. We should have utilized

the courts sooner. Thank you.

THE COURT: What do you recommend I do, Mr.

Lehtinen?

MR. LEHTINEN: Your Honor, what I recommend you do

is deny the stays. Ask counsel for the state, both how much

time they will need to substitute counsel. I would like to

point out that laying everything on Skadden, Arps is a

little, it is an acceptable argument, but all counsel,

Skadden never represented DER.

Counsel for DER remained the same. In-house

counsel for the District remained the same. Counsel have

not changed in that regard. You could ask them if the neat

necessity to change counsel, to get up to speed, requires

them to have a month or whatever time is involved, a lot

different than this year and a half kind of stay stuff.

 


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What actual impact that is being caused by a few

depositions while they are trying to change counsel. Susan

Ponzoli has offered to work with them in that regard, but to

the extend that we are unable to reach that agreement, the

United States does recognize that in this immediate future

the issues regarding changing of counsel, and whether they

can cover depositions is quite a different matter that we

are willing to work with them on.

If Your honor wanted to give them 30 days to change

counsel for matters like that, that is certainly something

within the discretion of the court; something the United

States can work with and would relieve them of these other

concerns, but I would not grant any delays beyond 30 or 40

days or any matters that don’t carefully relate to this new

change of counsel and actual specific tachtical matters

within the lawsuit.

So I would recommend denial of the other matters in

setting—if Your honor doesn’t have time today, setting

the motion for summary judgment as soon as Your Honor can

see fit on his calendar.

THE COURT: You say that the water that you have

with you is dirty water?

MR. LEHTINEN: Yes, neutrient rich.

THE COURT: By the definition of your scientists?

MR. LEHTINEN: Yes. Neutrient rich causing an


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imbalance on the flora and fauna, and so forth.

THE COURT: You say the state scientists say that

it is not.

MR. LEHTINEN: Well, Your Honor, actually the state

scientists, and actually this is by way of argument, but we

think the state scientists on depositions and in this court

and their written materials actually support that it is

polluted water, but the state pleadings in court, by its

lawyers, are that they deny the allegations of the lawsuit.

They deny that it is dirty water.

THE COURT: Isn’t that an easy matter to take care

of, without taking a lot of depositions?

MR. LEHTINEN: Your Honor, I believe that it is an

the easy matter. I believe the gravamen of these

depositions, and the kind of "Mylady Doth Protest" too much

with respect to what these depositions actually represent.

We could settle these matters in 30 days of

depositions if we didn’t have continually, the last time we

asked them, "well, who you changing counsel to? Are you

going to in the house counsel? Who do we phone work with on

the depositions?"

It is, "well, we haven’t decided yet who is really

going to represent the state on this." I think they are

just waiting until the circumstances of changed counsel

provides another opportunity to argue for delay.

 


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THE COURT: Now, there are some laws in place now

that regulate the amount of nutrients that should be in that

water, are there not?

MR. LEHTINEN: Yes, Your Honor.

THE COURT: And it is, I assume, a relatively

simple matter to get the scientists from both sides to look

at the water as it presently exists.

MR. LEHTINEN: That’s correct, Your Honor.

THE COURT: And agree on whether or not it complies

with that law.

MR. LEHTINEN: Well, one would think so, Your

Honor, but the scientists are under orders from mid and high

level policy makers with respect to what they can and can’t

say in the meeting

THE COURT: They are not under orders to make

certain findings, are they?

MR. LEHTINEN: No, Your Honor, but these so-called

meetings of scientists that are represented by opposing

counsel often represent actually an intermediate policy

maker coming from the District, not a scientist who is free

to express his opinion.

It was not my intention to rebut and claim point—

all I wanted to say was that representations about these

meetings should not be accepted by the court, unless they

are joint. In fact, these meetings do not always have

 


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scientists from the state aside who are free to discuss the

matters with scientists from the federal side.

THE COURT: Well, what I am referring to, of

course, is the number of depositions that I understand have

been set and that you indicated at least a good portion of

them as you said in you are opening remarks is simply to

determine whether or not that water is dirty.

MR. LEHTINEN: Your Honor, we are prepared with

respect to why an individual scientist is set for deposition

to defend that. I think we have an obligation to do that.

We are willing to do that, but counsel for the

state has never done that. They have never said, "this

individual scientist," and they don’t deal with us. I think

they prefer to keep the argument alive; that there is just

too many depositions, instead of actually discussing who can

be eliminated and how.

THE COURT: I have a tendency to try to make things

simple. Perhaps that’s misleading from time to time, but if

the effort to determine whether or not that water is dirty

is obscured by the various process involved, I would be

happy to appoint my own expert under Rule 706, I think it

is.

MR. LEHTINEN: Well, Your Honor, what could perhaps

happen, we do believe that the motion for summary judgment

is argument and the state would oppose it, but the motion

 


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for summary judgment is pending.

We do believe that it establishes, without any

contaverted facts, the partial issue that you are

addressing. So if Your Honor chose to deal with that

motion, it would eliminate all of these depositions.

THE COURT: If I rule on the motion for summary

judgment, in other words, that the water is contaminated—

MR. LEHTINEN: That’s right. Then all of these

preliminary matters, all of these depositions would turn

simply to the issue of remedy. We have not gotten beyond

this issue of the contamination of the water.

THE COURT: Well, remedy and to some extent

responsibility, to the extent that the state has made

certain counterclaims, there are some other issues.

MR. LEHTINEN: True, Your Honor. That’s why it was

styled "partial," but it would move it to remedy, and

insofar as the authority issue is relevant to remedy, and so

forth, but it would certainly move along most of the

scientific issues.

THE COURT: All right. Thank you, sir.

MR. LEHTINEN: Thank you.

MR. SEARCHINGER: Thank you, Your Honor. My name

is Tim Searchinger. I am representing the conservation

intervenors, and I would like to just say and preface my

remarks by saying that everything I am going to say is not

 


63

 

in dispute at all with our understanding of the sincerity of

the governor’s commitment.

THE COURT: Before you get started, and in

furthering the effort at conservation, let me check with my

court reporter to see how he is holding up. Do you need

about minutes? He needs about 5 minutes. Let’s take

minutes.

(Recess taken)

THE COURT: Sit down, please, folks. All right.

You may proceed

MR. SEARCHINGER: Thank you