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") . FN 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
2
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.
3
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 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.
4
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 t reatment
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 diacharge
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.
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 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
6
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
7
are to be undertaken by the District and DER and therefore
constitute "agency action" subject to the APA, substantially
affected parties, including the Cities and the Farm Interests, will
be able to subject these measures to independent administrative and
judicial scrutiny. To the extent, then, that the agencies'
implementation of the Agreement may ultimately impose burdens on
the Cities and the Farm Interests, these burdens will be imposed
only as a result of an administrative process in which the Cities
and Farm Interests are allowed to participate, and only if they are
warranted by the facts as developed in that process.
The Cities and the Farm Interests do not dispute the adequacy
of the APA in protecting their interests with regard to the actions
contemplated by the Agreement. To the contrary, they have made it
clear that they would prefer that the issues raised by this lawsuit be
adjudicated in the state administrative process. Their primary
concern is that to the extent that the Agreement binds the agencies
to a particular course of regulatory action, their administrative
rights are rendered meaningless because the Agreement will have
predetermined the final agency action. See Capeletti Bros., 432
So.2d at 1364 ("Section 120.57 proceedings are intended to
formulate final agency action, not to review action undertaken
earlier and preliminarily.") If, in fact, the Agreement is a
fait accompli, then an administrative hearing is an exercise in
futility.
In response to this concern, the settling parties have
submitted a Joint Status Report which makes clear that the
8
Agreement is not intended to require the agencies to favor the
terms of the Agreement over a hearing officer's contrary findings
of fact supported by competent evidence. As interpreted by the
Court, the intention of the settling parties is that the agencies
are bound in only two respects as far as the administrative process
is concerned. First, the agencies must propose those measures set
forth in the Agreement which are subject to the APA. They are not,
however, required to adopt these measures as final action in the
face of conflicting findings of fact or if persuaded that such
action goes against the weight of the evidence established in the
Section 120.57 hearing. Indeed, should the state administrative
process result in a finding inconsistent with that contemplated by the
Agreement, the state agencies, consonant with their obligations
under state law, must respect that result. Second, the agencies
are "bound" in the sense that if the outcome of the
administrative
process precludes them from undertaking final action consistent
with the terms of the Agreement, and if the settling parties are
unable to agree to a modification of the Agreement after resort to
dispute resolution or upon a claim of force majeure,FN 2 the United
States retains the right to return to this Court and have the
dispute resolved in a federal forum. Significantly, the Agreement
does not dictate how this dispute must be resolved.
So construed, the Agreement imposes a process rather than a
result, in effect recognizing an administrative framework while
9
preserving this Court's ultimate jurisdiction over this lawsuit.
As indicated at the December 4, 1991, status conference, the
Court proposes to address defendant-intervenors' concerns with
regard to the APA by incorporating in this Order, and making part
of the Agreement, terminology which insures that the administrative
hearing is meaningful. To that end, the following language, taken
in large part from the Joint Status Report and the settling parties'
submission of proposed language, is hereby made part of
the Agreement FN 3:
1. The Agreement does not predetermine the
outcome of any
state proceedings required under Chapter 120, Florida Statutes.
Accordingly, any provision of the Agreement that under Florida law
must be implemented by the state agencies through administrative
proceedings governed by Chapter 120, Florida Statutes, shall have
no binding effect upon the agencies within such administrative
proceedings and with regard to the agencies' consideration of the
hearing officer's recommended order. In any such proceedings,
points of entry will be provided as required by law.
2. Nothing in the Agreement is intended or
operates to
abrogate the District's and DER's duties to act in accordance with
Florida law. Indeed, the Agreement requires the District and DER
to fulfill their obligations under existing state law, including
the duty to weigh competing evidence on issues of fact or policy,
particularly in light of an impartial administrative hearing
officer's decision that the evidence warrants a conclusion at odds
with the Agreement. Specifically, the Agreement does not require
the agencies to favor the terms of the Agreement over a hearing
officer's contrary findings of fact supported by competent,
substantial evidence.
10
Having thus clarified the intention and operation of the
Agreement, the Court now turns to the remaining objections raised
by the Cities and the Farm Interests.
II. DEFENDANT-INTERVENORS' OBJECTIONS
The Cities and the Farm Interests advance a number of
arguments in opposition to Court approval of the Agreement. The
principal contentions raised are that: (1) the Agreement illegally
imposes duties and obligations on defendant-intervenors and
undermines their rightful interests; (2) the Court lacks authority
to enter a consent decree based on state law claims; (3) the
Attorney General lacks authority to maintain and settle this action
without the concurrence of other federal agencies; (4) the
Agreement impermissibly restricts the discretion of federal
agencies by requiring them to undertake certain actions in
furtherance of the Agreement's objectives; (5) the Agreement
violates the Flood Control Act; and (6) the remedial measures
contemplated by the Agreement constitute "major federal action"
under NEPA, necessitating preparation of an environmental impact
statement. These arguments are addressed, in turn, below.FN 4
11
A. Impact on Nonconsenting parties
Defendant-intervenors contend that the Agreement impermissibly
imposes direct duties and obligations upon them, or otherwise
undermines their rightful interests. See Local No. 93 v. City of
Cleveland, 478 U.S. 501, 529-30 (1986). In particular, the Farm
Interests cite the regulatory permitting program, with its
requirements of reduced phosphorous loads in farm runoff and
adoption of best management practices, and the acquisition of
35,000 acres of farmland for construction of the STAs. The Cities
contend that the Agreement requires them to incur financial
obligations, obtain permits not heretofore required, and modify
existing permits.
This argument misconstrues the nature of the Agreement, as
clarified above. The Agreement does not require anything of
defendant-intervenors nor does it accomplish of its own force and
effect any of the terms which might impair their interests.
Certainly the defendant-intervenors cannot claim to incur burdens
as a result of actions which are merely proposed. Yet as far as
their interests are concerned, that is all the Agreement
accomplishes. As noted earlier, any duties or obligations imposed
upon defendant-intervenors will come about only as a result of an
administrative process in which they are allowed to participate,
12
and not by virtue of this Court's approval of the Agreement.
If indeed it turns out that the defendant intervenors are
unable to persuade an impartial hearing officer that the terms of
the Agreement are scientifically unsound or otherwise unwarranted,
the result is-neither "unreasonable nor proscribed" United
States v. City of Miami, 664 F.2d 435, 441 (5th. 1981).
B. The Court's Authority to Enter a Consent Decree
Defendant-intervenors also argue that the Court lacks
authority to enter a consent decree based on state law claims.
This contention is both factually and legally incorrect.
Inexplicably, defendant-intervenors fail to recognize the
presence of the federal contract claims in Counts III and IV of the
United States' Second Amended Complaint. These claims, alleging
breaches of two separate contracts between the United States and
the District, are governed by federal, not state, law. See
United States v. Seckinger, 397 U.S. 203, 209-10 (1970); United
States v. Allegheny County, 322 U.S. 174, 183 (1944), overruled on
other grounds by United States v. City of Detroit, 355 U.S. 466
(1958) (as noted in United States v. Fresno County , 429 U.S. 452,
462 n. 10); Clearfield Trust Co. v. United States, 318 U.S. 363,
366 (1943); United States v. South Florida Water Management Dist.,
922 F.2d 704, 711 (11th Cir. 1991).
Even if the Agreement seeks to vindicate only the state law
claims, the Court has authority to enter a decree resolving those
claims as a result of its subject matter jurisdiction under 28
13
U.S.C. § 1345. As long as a consent decree "spring(s) from and
serve(s) to resolve a dispute within the court's subject matter
jurisdiction," the court is empowered to enter the decree if it
comes within the scope of the case made by the pleadings and
advances the objectives of the law it is intended to enforce.
Local No. 93 v. City of Cleveland, 478 U.S. at 525. Accord Sansom
Comm. v. Lynn,735 F.2d 1535, 1538 (3d Cir. 1984); Camden County
Jail Inmates v. Parker, 123 F.R.D. 490, 497-98 (D.N.J. 1988). Or,
as one court has stated: "The power of a court to enter a consent
decree emanates from its authority to adjudicate the rights of the
parties in the first instance." Lasky v. Continental Products
Corp., 804 F.2d 250, 254 (3d Cir. 1986).
Kasper v. Board of Election Comm'rs, 814 F.2d 332 (7th Cir.
1987), cited by defendant-intervenors, is inapposite. In that
case, the Seventh Circuit found that an overriding federal interest
was necessary to justify a consent decree which would have
committed the defendant, the Chicago Board of Election Commissions,
to violate state law. Kasper thus stands for the proposition that,
in the absence of a violation of federal law which might warrant
relief inconsistent with state law, state agencies may not by
consent decree "liberate themselves from the statutes enacted by
the legislature that created them.. Id. at 342. Nothing about
this holding suggests that a consent decree cannot be based on
state law claims.
In short, because this Court has subject matter jurisdiction
over the United States' claims, it has the power to enforce the
14
Agreement as a consent decree.
C. The Attorney General's Authority to
Maintain and SettleThis Action
The Farm Interests allege that the Attorney General lacks
authority to maintain, and therefore settle, this action because,
according to the Farm Interests, the authority to pursue the claims
presented in this case belongs exclusively to other federal
agencies whose concurrence in the filing and maintenance of this
suit has not been sufficiently established. The question of the
Attorney General's authority, initially raised in the Farm
Interests' brief in opposition to the motions for approval of the
settlement, also forms the basis of a separate Motion for Court
Inquiry filed by the Florida Sugar Cane League, Inc. (the
"League"), a member of the Farm Interests. The Court has
accordingly considered the authority cited in both memoranda and
finds nothing therein which arguably lends support to this claim.
Without attempting to cover every case and statute invoked
by the Farm Interests and the League, the following examples are
representative of the degree to which their argument depends upon
misstatement and misapplication of the authority cited.
For instance, Farm Interests have cited (but not quoted) the
following statutes as requiring that "[p]rior to initiating an
action to enforce the property interests of the United States, the
Attorney General must be 'retained' by client agencies to represent
federal interests within the responsibility of the agency
requesting help." Farm Interests' brief, at 50:
15
28 U.S.C. § 512. Attorney General to
advise heads of executive
departments: The head of an executive department may require the
opinion of the Attorney General on questions of law arising in the
administration of his department.
28 U.S.C. § 514. Legal services on
pending claims in
departments and agencies: When the head of an executive department
or agency is of the opinion that the interests of the United States
require the service of counsel on the examination of any witness
concerning any claim, or on the legal investigation of any claim,
pending in the department or agency, he shall notify the Attorney
General, giving all facts necessary to enable him to furnish proper
professional service in attending the examination or making the
investigation, and the Attorney General shall provide for the
service.
28 U.S.C. § 517. Interests of United
States in pending suits:
The Solicitor General, or any officer of the Department of Justice,
may be sent by the Attorney General to any State or district in the
United States to attend to the interests of the United States in a
suit pending in a Court of the United States, or in a court of a
State, or to attend to any other interest of the United States.
28 U.S.C. § 518. Conduct and argument of
cases: (a) Except
when the Attorney General in a particular case directs otherwise,
the Attorney General and the Solicitor General shall conduct and
argue suits and appeals in the Supreme Court and suits in the
United States Claims Court or in the United States Court of Appeals
for the Federal Circuit and in the Court of International Trade in
which the United States is interested. (b) When the Attorney
General considers it in the interests of the United States, he may
personally conduct and argue any case in a court of the United
States in which the United States is interested, or he may direct
the Solicitor General or any officer of the Department of Justice
to do so.
As is obvious, these statutes do not stand for the proposition
asserted. Moreover, Farm Interests have conspicuously ignored 28
U.S.C. §§ 516 and 519, which reserve to the Attorney General,
absent express congressional directive to the contrary, the
authority to conduct and supervise all litigation to which the
United States is a party.FN 5
16
In an attempt to demonstrate that the Attorney General's
authority to bring this action depends on the concurrence of other
federal agencies, the Farm Interests refer to the Environmental
Protection Agency's authority to implement and enforce the Clean
Water Act, 33 U.S.C. § 1251 et seq. However, none of the United
States' claims in this case are based on the Clean Water Act.
The League's filing fares no better. For example, in support
of its contention that the Secretary of the Interior has exclusive
authority to determine whether legal action should be taken to
protect federal parks and refuges, the League cites Organized
Fishermen of Florida v. Hodel,775 F.2d 1544 (11th Cir. 1985),
cert. denied, 476 U.S. 1169 (1980), and Kidd v. United States Dep't
of Interior. Bureau of Land Management, 756 F.2d 1410 (9th Cir.
1985). In fact, these cases, involving private challenges to
regulatory decisions brought under the federal Administrative
Procedures Act, 5 U.S.C. § 706 (2) (a), merely affirmed the Interior
Department's broad discretion to regulate the use and management of
federal lands. See Organized Fishermen, 755 F.2d at 1550 ("[t]he
task of weighing the competing uses of federal property has been
17
delegated by Congress to the Secretary of the Interior.
Consequently, the Secretary has broad discretion in determining how
best to protect public land resources."); Kidd, 756 F.2d at 1412
("Congress' constitutional power over the proper administration and
disposition of the public lands is without limitation."). The
question of authority to initiate civil action to protect federal
property was simply not at issue in these cases.
The League also relies on the following provision in the 1980
Department of Justice Appropriation Act:
The Attorney General may, with the concurrence of any
agency or department with primary enforcement
responsibility for an environmental or natural resource
law, investigate any violation of an environmental or
natural resource law of the United States, and bring such
actions as are necessary to enforce such laws.
Pub. L. No. 96-132, § 12, 93 Stat. 1040, 1048 (1979).
The plain wording of this statute makes clear that it applies
only to a ctions to enforce federal environmental laws. This action
is based on state law and federal contract claims; no federal
environmental or natural resource law is at issue in this case.
As a final example, the League cites United States v. Solomon,
563 F.2d 1123 (4th Cir. 1977), as holding that "the [Department of
Justice] does not have general discretionary authority to file
civil actions within the purview of other federal agencies without
the authorization and concurrence of those agencies." League's
Memorandum in Support of Motion for Court Inquiry, December 13,
1991, at 4. In Solomon , the Fourth Circuit held that the United
States as a whole lacked statutory authority and standing to sue to
protect the constitutional rights of the mentally retarded.
18
Significantly, the court distinguished the situation in which the
United States sues to protect its property interests, in which case
no explicit statutory authorization is required. 563 F.2d at 1126
(citing cases). The question of the authority of the United States
as a whole to bring suit is, of course, a separate issue from the
question of which federal agency is responsible for initiating
suit. As to the latter question, the court expressly stated that
"if the United States had authority to bring the suit, the Attorney
General of the United States is the one to act as its counsel."
Id. at 1124 (citing 28 U.S.C. §§ 516-519). Solomon not only lends
no support to the League's argument, but indeed bears no
resemblance to the characterization of its holding advanced by the
League.
Although the Farm Interests' and the League's reliance on
inapplicable authority is enough to warrant a conclusion that their
challenge to the Attorney General's authority is without legal
foundation, the issue of the concurrence of other federal agencies
in this action is, in any event, a red herring.
The cooperation of numerous federal resource agencies in this
litigation is evident from the United States' witness list, which
includes, among others, personnel from the National Park Service,
Fish and Wildlife Service, Environmental Protection Agency, Soil
Conservation Service, and Army Corp of Engineers. United States'
Revised Designation of Expert Witnesses, November 19, 1990. With
respect to the Department of the Interior, Assistant Interior
Secretary Constance Harriman was quoted in a press article dated
19
November 14, 1990, as stating: "We're pursuing an aggressive
litigation strategy. What's at risk is a precious national park--
a world heritage site -- and an important wildlife refuge. [The
damage sustained] is as bad as you can get. We've got to have
relief." Miami Herald, November 14, 1990 (Exhibit 2 of United
States' Opposition to Defendant-Intervenor's Motion for Court
Inquiry, January 27, 1992). Further, when the settlement reached
in this case was announced, the Secretary of the Interior, Manuel
Lujan, issued a press release hailing the settlement as a "major
step toward solving the water quality problems which threaten the
park and the refuge" and as "the beginning of a new era of
partnership designed to meet the goal of responsible stewardship of
our public lands.. (Exhibit 3 of United States' Opposition to
Defendant-Intervenor's Motion for Court Inquiry).
While it may or may not be true that, as the Farm Interests
and the League contend, the concurrence of other federal agencies
occurred only after the suit was filed, this point is irrelevant in
light of the Farm Interests' and the League's failure to
demonstrate that this concurrence was ever needed in the first
place.
Having been referred to no authority which suggests that the
Attorney General lacks the authority to pursue and settle the
claims in this case, the Court finds this argument to be without
merit.
20
D. Infringement of Federal Agency Discretion
The Farm Interests claim that the Agreement illegally
infringes upon the discretionary authority of federal agencies by
requiring these agencies to defend the Agreement against outside
challenges, by requiring their assistance in research and
monitoring, and by requiring the Army Corp of Engineers (the
"Corps") to modify its regulation of the Central and Southern
Florida Project (the "Project") in support of the Agreement's
objectives.FN 6
A similar argument was addressed in Gorsuch, 718 F.2d at 1127-
29. In Gorsuch, a group of industries challenged a consent decree
21
which established certain procedures and criteria to be employed by
the Environmental Protection Agency ("EPA") in promulgating
regulations under the Clean Water Act. In rejecting the
industries' argument that the decree impermissibly restricted the
EPA's discretion by prescribing the method to be used by the agency
in developing its regulations, the appellate court emphasized that
the terms of the decree were shaped, and voluntarily agreed to, by
the EPA:
The Decree here was largely the work of the
EPA and the other parties to these suits, not
the district court; manifestly, the
requirements imposed by the Decree do not
represent judicial intrusion into the Agency's
affairs to the same extent they would if the
Decree were `a creature of judicial cloth.'
Id. at 1128 (citation omitted). Because the EPA had consented to
the decree, the situation in Gorsuch was distinguishable from cases
in which agencies were ordered, against their will, to take action
otherwise committed to their discretion. See, e.q., National Ass'n
of Postal Supervisors v. United States Postal Serv., 602 F.2d 420
(D.C. Cir. 1979) (district court interfered with Postal Service's
broad discretion over management affairs in ordering the Service to
maintain specific salary differential between management personnel
and rank-and-file employees).
In this case, the Agreement before the Court, to be entered as
a consent decree, is arguably less intrusive of federal agency
discretion than the decree in Gorsuch. Whereas the federal agency
in Gorsuch was in a defensive position, the United States initiated
and aggressively pursued this action; any commitments it has made
22
are in furtherance of its own independently-sought objectives. To
hold that the various federal agencies which have participated in
this suit cannot commit themselves to undertake action in support
of an outcome which they affirmatively seek, i.e., restoration of
the Everglades, is itself an infringement of their discretion to
settle this lawsuit in the manner they best see fit.
Since any commitments embodied in the Agreement come with the
endorsement and at the urging of the United States, the Agreement
does not impermissibly infringe upon the discretion of the federal
agencies involved.
E. The Flood Control Act
Defendant-intervenors contend that the Agreement, by
establishing new water quality and quantity standards applicable to
the Project, imposes immediate and significant modifications to the
Project which elevate environmental considerations over the
Project's primary purposes of flood control, reclamation,
irrigation, and water supply. Such modifications, it is noted,
require prior congressional approval under the Flood Control Act,
33 U.S.C. § 701, et seq. The United States' position is that the
Agreement is entirely consistent with the broad aims of the
Project, which include protection of fish and wildlife resources in
addition to flood control and other stated purposes. See generally
Environmental Defense Fund v. Alexander, 467 F. Supp. 885, 899-902,
908-10 (N.D. Miss. 1979) (discussing the Corps'discretionary
authority to make post-authorization modifications to projects
23
which do not materially alter authorized project purposes);
Creppel v. Army Corps of Engineers, 670 F.2d 564, 572-73 (5th Cir.
1982) (same).
Although the position of both parties seems to suggest that a
comparison of the terms of the Agreement with the Project's
purposes is in order, the Court finds this task unnecessary since
the Agreement does not mandate any specific or concrete
modification to the Project such as would trigger the requirement
of congressional approval.
The Corps' duties under the Agreement are set forth in ¶ 55:
The Corps shall apply to DER for stormwater management
permit(s)... for the operation of S-10, S-11, and S-12
water control structures, and for the construction and
operation of new structures which may affect the Park or
Refuge, and shall comply with reasonable permit terms and
conditions relating to the abatement of water quality
problems addressed in the Agreement. For existing
structures S-10, S-11, S-12, the Corps shall apply on or
before October 1, 1991. The DER anticipates that
stormwater management permits for these existing
structures may include monitoring, adjustments to
regulatory schedules and participation in research
consistent with this Agreement ...The Corps agrees to
cooperate in the modification of its regulation of the
[Project] in order to support the objectives set forth in
this Agreement. New structures to be designed and
constructed by the Corps shall be designed and
constructed in a manner consistent with this Agreement.
In complying with these terms, the Corps may very well modify
certain aspects of the Project, but Paragraph 15 clearly does not
embody any specific or definite plan for modification of the
Project. Hence, any alterations to the Project are, at this stage,
purely conjectural and hypothetical. More fundamentally, because
24
the Agreement itself contains no concrete proposal for
modifications to the Project, the Court's approval of the Agreement
does not implicate the Flood Control Act for the very reason that
the Court cannot be approving or requiring what is not in the
Agreement. Whether the Corps' implementation of its part of the
Agreement will result in specific plans to alter the Project is an
issue which need not and should not be resolved at this juncture.
For present purposes, it is sufficient that the Agreement itself
imposes no such modifications and, as such, does not require
congressional authorization.
G. NEPA
NEPA requires federal agencies to submit an environmental
impact statement ("EIS") before undertaking "major Federal actions
significantly affecting the quality of the human environment." 42
U.S.C. § 4332(2)(C). The purpose of the EIS requirement, and NEPA
as a whole, is to inject environmental considerations into the
decisionmaking processes of federal agencies by forcing agencies to
take a "hard look" at the environmental consequences of their
actions. Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989) (citation omitted); Weinberger v. Catholic Action
of Hawaii/Peace Education Project, 454 U.S. 139, 143(1981).
There is no question but that the remedial measures
contemplated by the Agreement will significantly affect the
environment; that is the whole purpose of the Agreement. Further,
the fact that these measures are intended to benefit the
25
environment does not necessarily render them beyond the scope of
NEPA's requirements. As the Fifth Circuit has observed, "The
proper question is not the intent behind the actions, but the
significance of the new environmental impacts... NEPA is concerned
with all significant environmental effects not merely adverse
ones." Environmental Defense Fund v. Marsh, 651 F.2d 983, 993 (5th
Cir. Unit A, July 13, 1981)FN 7
(citation omitted). Accord National
Wildlife Federation v. Marsh, 721 F.2d 767, 782-83 (11th Cir.
1983). In a similar vein, the Council on Environmental Quality
("CEQ"), which is charged with developing guidelines implementing
NEPA's provisions, includes beneficial impacts in its definition of
"significant effects" on the environment. 40 C.F.R. §
1508.27(b)(l). While the courts and the CEQ have not clearly
articulated the purpose served by requiring an EIS for actions
intended to benefit the environment, application of NEPA's mandate
to such actions may stem from an implicit recognition that even the
most well-intentioned environmental project can have unintended
negative effects.
NEPA, however, applies only to "federal" actions.
Accordingly, the critical questions before this Court are whether
the Agreement's remedial measures constitute federal action and, if
so, whether implementation of the Agreement is precluded pending
26
preparation of an EIS.FN 8 As
regards the first issue, the fact that
the actions designed to restore the Everglades are to be undertaken
by the state agencies is not dispositive. The case law is quite
clear that federal involvement in state or private activity may be
sufficient to federalize the activity for purposes of NEPA.
Cases in which courts have found major federal action in
otherwise nonfederal projects generally involve discretionary
decisionmaking by federal agencies which permit or enable
nonfederal actors to undertake activity affecting the environment.
Typical examples include situations in which federal approval --
usually in the form of a lease, permit, or license -- is required,
or where substantial federal funding is involved. See, e.g.,
Maryland Conservation Council. Inc. v. Gilchrist, 808 F.2d 1039,
1042 (4th Cir. 1986) (county highway project involved federal
action inasmuch as county needed a permit from the Army Corps to
dredge a wetlands and highway crossed a state park purchased with
federal funds, thereby requiring the Interior Secretary's approval
for conversion of the park to other than recreational use);
Foundation on Economic Trends v. Heckler, 756 F.2d 143, 152-54
(D.C. Cir. 1985) (enjoining university genetic experiment approved
and funded by the National Institutes of Health without compliance
with NEPA); Homeowners Emergency Life Protection Comm. v. Lynn,
27
541 F.2d 814, 817 (9th Cir. 1976) (per curiam) (grant of federal
funds transformed dam and reservoir project into a federal-city
partnership, rendering project a major federal action); Davis v.
Morton, 469 F.2d 593, 596 (l0th Cir. 1972) (Interior Secretary
required to file an EIS prior to approving lease of Indian lands to
private developer); Greenpeace U.S.A. v. Evans, 688 F. Supp. 579
(W.D. Wash. 1987) (federal agency's granting of permit allowing
scientists to collect skin and blubber samples from killer whales
was subject to NEPA's requirement of EIS or preliminary
environmental assessment). Other examples involve the provision
of federal services or non-financial assistance to a nonfederal
project. See Sierra Club v. Hodel, 544 F.2d 1036, 1044 (9th Cir.
1976) (by entering into contract to supply power and construct
transmission line to ALCOA plant, federal agency so federalized the
project that it became major federal action); Scientists' Inst.
for Public Information. Inc. v. Atomic Energy Comm'n, 481 F.2d 1079
(D.C. Cir. 1973)(Atomic Energy Commission's development of
technology enabling utility companies to construct nuclear power
plants required an EIS).
Although each of the above cases highlights the presence of a
federal decision which in some manner "enables" another to take
action impacting upon the environment, the common theme underlying
findings of federal action is the existence of federal
responsibility for the activity in question. See CEQ regulations,
40 C.F.R. § 1508.18, defining "major federal action" as including
effects "which are potentially subject to federal control and
28
responsibility." Such responsibility may be found where a federal
agency wields significant influence over a nonfederal project or
where, even absent such influence, federal participation is
nonetheless substantial. See Atlanta Coalition on Transp. Crisis,
Inc. v. Atlanta Regional Comm'n, 599 F. 2d 1333 1347 (5th Cir.
1979) (framing the issue as "whether there is sufficient federal
control over, responsibility for, or involvement with an action to
require preparation of an EIS"). A case which illustrates this
larger theme is Scottsdale Mall v. Indiana, 549 F.2d 484 (7th Cir.
1977), cert. denied, 434 U.S. 1008 (1978). Scottsdale Mall
involved a highway construction project undertaken by the State of
Indiana, which initially received federal funding for the project
but subsequently withdrew from federal funding consideration in
order to avoid compliance with NEPA. The court nonetheless
required preparation of an EIS. Although finding that Indiana's
receipt of early federal approval and financial aid rendered its
highway project federal in character, despite its subsequent
withdrawal from the funding program, the court also found "major
federal action" in the federal government's extensive involvement
in the project's planning. The record revealed federal
participation in the programming, location, design, preliminary
engineering, and right of way acquisition for the project.Id. at
489. Such extensive federal involvement was sufficient to
federalize the state's highway, thus triggering the need for an
EIS.
29
Application of the concept of federal "responsibility" to the
case at hand yields the inevitable conclusion that the Everglades
restoration project contemplated by the Agreement constitutes major
federal action. The United States' responsibility for the
Agreement's remedial measures is evident from the fact that these
provisions were arrived at in consultation and negotiation with the
United States. Through the negotiating process, the United States
no doubt exercised considerable influence over determination of the
precise interim and long-term phosphorous concentration limits
established for the Park and Refuge, the interim and long-term
target reductions in phosphorous loads from the EAA, and the size
and location of the various STAs, all of which will surely have a
significant impact on the environment.FN 9
Further, the United States
will continue to exert control through the Agreement's dispute
resolution mechanism. Pursuant to this provision, the state
agencies are obligated to seek the approval of the United States
before deviating from the terms of the Agreement. The United
States thus not only had the power to influence the initial
determination of the specific standards and measures affecting the
environment, but also has the continuing power to set new or
different standards by consenting to such changes. This is the
kind of discretionary authority to approve or disapprove of actions
30
affecting the environment that is at the very heart what
constitutes "major federal action." In addition to this more
substantive influence, the United States will cooperate and
participate in the Agreement's implementation by assisting the
state agencies in research and monitoring as well as in their
efforts in the state administrative process.FN 10 Given the extent
of the United States' role both in shaping the Agreement and in its
implementation, the Court finds that the Agreement's remedial
measures constitute major federal action and will accordingly
require preparation of an EIS.
The Court will not, however, require an EIS as a condition to
its approval or the parties' implementation of the Agreement.
Though mindful that an EIS is supposed to precede an agency's
decision to move forward on action which affects the environment,
the Court is no less cognizant of NEPA's original purpose, which is
to promote preservation and enhancement of the environment. See 42
U.S.C. § 4331. Here, the United States is attempting to protect
and save the Everglades from further deterioration, thus fulfilling
NEPA's purpose. Defendant-intervenors, moreover, have alleged no
harm or even possible harm to the environment which would occur as
a result of the restoration project. Rather, they are trying to
use an environmental law as a means of stalling an environmentally
protective measure.
31
The irony of the situation confronting this Court is similar
to that faced by the Sixth Circuit in Pacific Legal Foundation v.
Andrus, 657 F.2d 829 (6th Cir. 1981). There, a legal foundation
and several residents of the State of Tennessee argued that the
Secretary of the Interior violated NEPA by failing to file an EIS
prior to listing several species of mussels as endangered under the
Endangered Species Act. The designation of the mussels as
endangered species had necessitated a halt in construction of a
dam. Although the court, in rejecting the NEPA claim, rested its
holding on a finding of statutory conflict between NEPA and the
Endangered Species Act, it also made a pertinent observation about
the use of NEPA as a device to frustrate actions intended to
benefit the environments:
The Secretary, by listing species, is working to preserve
the environment and prevent the irretrievable loss of a
natural resource. The Secretary thereby enhances the
ability to learn about ecosystems and acts as a
responsible trustee of the environment. One of the
rationales for exempting the actions of the EPA under the
Clean Air Act from NEPA was that the EPA was working to
preserve and enhance the environment and thus served the
purposes of NEPA. To require EPA to file an impact
statement would only hinder its efforts at attaining the
goal of improving the environment.
... This Court is reluctant to make NEPA more of an
obstructionist tactic to prevent environment-enhancing
action than it may already have become.
Id. at 837-38 (footnote omitted). FN
11
32
Like the Sixth Circuit, this Court also declines to permit
NEPA to be used as a litigation tactic to delay action intended to
prevent "the irretrievable loss of a natural resource." --in this
case, a resource with the unfortunate distinction as the most
threatened park in the National Park system. To allow the
Everglades to slowly strangle while a time-consuming EIS is
being prepared would be inconsistent with NEPA's intent. "[A]n action
which seeks to protect the environment from further deterioration
deserves refuge from... undue delay." United States v. South
Florida Water Management Dist. , 922 F.2d at 712 (quoting Manasota
88 v. Tidwell, 896 F.2d 1318, 1323 (11th Cir. 1990)).
Finally, the Court notes that an EIS will not be useless. The
restoration project spans a period of about eleven years, with
interim concentration levels not expected to be reached until the
year 1997 and long-term concentration levels set for the year 2002.
It is therefore likely that an EIS will have been completed prior
33
to occurrence of at least some of the project's environmental
effects. If actions affecting the environment occur prior to
completion of an EIS, the EIS will nevertheless serve the useful
function of allowing the agencies to determine, at a much earlier
date than would be the case if there were no impact statement,
whether the effects are as anticipated and, if not, whether any
corrective measures are in order. This decision, of course, rests
entirely with the responsible agencies involved. NEPA mandates a
process, not a result. Methow Valley, 490 U.S. at 350.
The Court recognizes that its decision to allow the Everglades
project to proceed while simultaneously requiring an EIS is
somewhat unusual, the typical remedy for a NEPA violation being
maintenance of the status quo pending an environmental assessment
or preparation of an EIS. It is the Court's view, however, that
under the circumstances presented, the result reached herein "
strike [s] a workable balance between some of the advantages and
disadvantages of full application of NEPA." Portland Cement, 486
F.2d at 386.FN 12
34
III. CONCLUSION
The Court finds the Agreement to be fair, reasonable, and
consistent with the public interest. This conclusion arises from
the fundamental fact that the Agreement does no more than set in
motion a process which itself is eminently fair and reasonable. In
essence, the Agreement effects a transfer of these proceedings to
a state administrative forum; this is precisely the result which
the Farm Interests, at least, have consistently sought. Though
defendant-intervenors would prefer that the Court relinquish its
continuing jurisdiction over this case by leaving the ultimate
determination of the United States' rights and remedies to the
state administrative process, the Court declines to do so. The
United States, having the right to be in this Court, has the right
to return to this Court if it is not satisfied with its remedies in
the administrative process.
The important point is that the Agreement's remedial terms
cannot take effect without first being tested by defendant-
intervenors and subject to careful and searching scrutiny in the
state administrative process and perhaps again in this Court. The
Agreement's fairness, in short, lies in the fair and impartial
administrative and judicial processes to which its terms are
necessarily subject. The Cities and Farm Interests, as potentially
affected parties, are entitled to no more and no less.
I have difficulty understanding the amount of time, effort,
and litigation spawned by an understandable effort to seek the
truth and, if the truth requires, take the steps necessary to save
35
a precious resource. The time has come, indeed, has passed, when
the admitted problems facing the Everglades must be addressed. And
yet the solutions must be the product of a meaningful search for
the scientific truth. The original parties to this litigation
conclude that they have found the answers or, at least, are aimed
in the right direction. The Cities and the Farm Interests wish to
participate in the finality of these conclusions and so they shall.
Lest there be any doubt from what has been said before in this
Order, it is the Court's hope and expectation that the
administrative process in which defendant-intervenors will be
involved will be totally uninhibited by this Order and the
Agreement to which it makes reference. If, ultimately, it is
determined factually that procedures and methods other than those
agreed to by the original parties herein should be undertaken, then
it will lie with those parties to either accept those conclusions
or seek further relief from the Court.
The Court accordingly approves the Agreement and ORDERS AND
ADJUDGES as follows:
1. The Court has jurisdiction over this action. The Agreement
is
approved by the Court and by reference made a part of this Order.
The parties to this Agreement are ordered to comply with its terms.
2. The Court shall retain jurisdiction over this matter for the
purpose of enabling any of the Parties to the Agreement to apply to
the Court at any time for such further orders or directives as may
36
be necessary or appropriate for enforcement or modification of the
terms of the Agreement.
DONE AND ORDERED in chambers at Miami, Florida this 24th day
of February, 1992.
_______________________________
WILLIAM M. HOEVELER
UNITED STATES DISTRICT JUDGE
cc: All counsel of record |
