WHEREAS the United States, the South Florida Water Management
District and Timer E. Powers in his official capacity as Interim
Executive Director of the South Florida Water Management District;
and the Florida Department of Environmental Regulation and Carol M.
Browner in her official capacity as Secretary of the Florida
Department of Environmental Regulation, desire to restore, preserve
and protect the unique flora and fauna of the Everglades National
Park and the Arthur R. Marshall Loxahatchee National Wildlife
Refuge, to maintain a cooperative relationship in accomplishing
these goals, and to settle and resolve the disputes that have
arisen between and among them without admitting or conceding
liability;
2
THEREFORE, the United States, the South Florida Water
Management District and Timer E. Powers, and the Florida Department
of Environmental Regulation and Carol M. Browner mutually stipulate
and agree as follows:
DEFINITIONS
1. The following definitions shall apply to this Settlement
Agreement ("Agreement") and the attached Appendices:
A. "Class III water quality standards" shall have the
meaning set forth in Florida Administrative Code Chapter 17-
302.
B. "The DER" shall mean the Florida Department of
Environmental Regulation.
C. "The District" shall mean the South Florida Water
Management District.
D. "The Everglades Agricultural Area"
("EAA") shall mean
that area including, but not limited to, the drainage basins
of S-2, S-3, S-5A, S-6, S-7, S-8, and S-150, as further
defined in the SWIM Plan or permits to be developed pursuant
to paragraph 13.
E. "The Everglades Protection Area" ("EPA")
means Water
Conservation Areas 1, 2A, 2B, 3A, 3B, the Arthur R. Marshall
Loxahatchee National Wildlife Refuge, and the Everglades
National Park.
F. "Imbalance in natural populations of aquatic flora and
fauna" and "imbalance of flora and fauna" shall have the
meaning in Florida Administrative Code Rule 17-302.560:
3
"Class III Waters - Recreation, Propagation and Maintenance of
a Heathy, Well-Balanced Population of Fish and Wildlife.
(19) Nutrients: In no case shall nutrient concentrations of
a body of water be altered so as to cause an imbalance in
natural populations of aquatic flora or fauna." Imbalance
includes situations when nutrient additions result in nuisance
species as defined in Florida Administrative Code Rule 17-
302.200(14), or when nutrient additions result in violation of
other standards contained in Chapter 17-302 as defined in Rule
17-302.510(3) (j). In the case of the Park and Refuge,
imbalance specifically shall include nutrient additions that
result in, but are not limited to, replacement of native
periphyton algal species by more pollution-tolerant algal
species, loss of the native periphyton community or, in
advanced stages of nutrient pollution, native sawgrass and wet
prairie communities giving way to dense cattail stands or
other nutrient-altered ecosystems, which impair or destroy the
ability of the ecosystem to serve as habitat and forage for
higher trophic levels characteristic of the Everglades.
Numerical interpretation of imbalance shall specifically
include an array of indices to measure sensitivity of the
ecosystem to small changes in nutrients, such as nutrient
cycling processes and the basic components of the Everglades
ecosystem, including periphyton and other sensitive indicators
of nutrient enrichment. The results of the Research and
4
Monitoring Program will be used will be used to determine numerically the
undesirable level of nutrients that cause an imbalance.
G. "Interim concentration limits" for the Park shall
mean
the concentration limits to be measured at discharges to the
Park and attained by July 1, 1997, as determined in
Appendix A.
H. "Interim concentration levels" for the Refuge
shall mean
the geometric mean of concentration levels to be measured at
14 interior marsh stations and attained by July 1, 1997, as
determined by Appendix B.
I. "Long-term concentration limits" for the Park
shall mean
the concentration limits to be measured at discharges to the
Park and attained by July 1, 2002, as determined by
Appendix A.
J. "Long-term concentration levels" for the Refuge
shall
mean the geometric mean of concentration levels to be measured
at 14 interior marsh stations and attained by July 1, 2002 as
determined by Appendix B.
K. "Outstanding Florida Waters" ("OFWs")
shall mean waters
designated by the Florida Environmental Regulation Commission
pursuant to Florida Administrative Code Rule 17-302.700.
L. "The Park" shall mean the Everglades National
Park,
including the Park expansion area, as defined in the
Everglades National Park Expansion and Protection Act of 1989,
P.L.101-229.
5
M. "The Parties" shall mean the United Sates and the
State
Parties.
N. "The Refuge" shall mean the Arthur R. Marshall
Loxahatchee National Wildlife Refuge.
O. "The State Parties" shall mean the South Florida
Water
Management District and Timer E. Powers, in his official
capacity as Interim Executive Director, or his successors; and
the Florida Department of Environmental Regulation and Carol
M. Browner, in her official capacity as Secretary, or her
successors.
P. "Stormwater Treatment Areas" ("STAs")
shall mean the
stormwater management systems that are to be designed,
acquired, constructed and operated by the District in a manner
primarily to provide nutrient removal pursuant to this
Agreement. Use of the term "stormwater" in this Agreement
shall not limit the source or nature of the water to be
treated in the STAs in accordance with this Agreement, and
shall include all water discharged to the EPA through the S-
5A, S-6, S-7, S-8 and S-150 structures.
Q. "The SWIM Plan" shall mean the Surface Water
Improvement
and Management ("SWIM") Plan for the Everglades Protection
Area as defined in the Marjory Stoneman Douglas Everglades
Protection Act of 1991, Chapter 91-80, Laws of Florida.
R. "Technical oversight Committee" ("TOC")
shall mean the
committee established in paragraph 18 of this Agreement.
6
S. "The United States" shall mean the United States
of
America and its agencies, including but not limited to the
United States Department of the Interior, the United States
Environmental Protection Agency ("USEPA"), the United States
Army Corps of Engineers ("The Corps"), and the United States
Department of Agriculture.
T. "The Water Conservation Areas" ("WCAs")
shall mean WCAs
1, 2A, 2B, 3A and 3B as described in District map dated
September 1985.
SETTLEMENT OF CLAIMS
2. This Agreement settles all claims that the United States
raises in the Second Amended Complaint, and all counterclaims to
the Second Amended Complaint that the State Parties raise, in
United States et al. v. South Florida Water Management District et
al., No. 88-1886-CIV Hoeveler (S.D. Fla.).
INTRODUCTION/BACKGROUND OF PROBLEM
3. The Parties agree that the Park and the Refuge are unique
and
irreplaceable natural resources. As the major remnants of the
greatly diminished natural Everglades, the Park and the Refuge
contain unmatched, world-renowned examples of biologically rich and
sensitive ecosystems. The nutrient-lean (oligotrophic) condition
of the aquatic ecosystem is one hallmark characteristic of the
unspoiled Everglades that still exists in the Park, the Refuge and
other parts of the Everglades. These ecosystems are changed by
even slight increases in nutrient concentrations, particularly
increases in the concentration of phosphorus.
7
A. At the preset time, the ecological integrity and
ultimately the survival of the Park and Refuge are threatened by
the inflow of EAA drainage water containing excess nutrients.
Indeed, the high levels of phosphorus in EAA discharges constitute
the most immediate water quality concern facing the Everglades
system. EAA drainage that flows directly into the Refuge contains
average phosphorous concentrations ten to twenty times higher than
background concentrations of phosphorus observed at interior marsh
sites. Water from the EAA eventually flows into the Park through
the WCAs. Thus, maintenance of state water quality standards
within the WCAs is crucial to the ecology of the Park.
B. Excess phosphorus accumulates in the peat underlying the
water, alters the activity of microorganisms in the water, and
disturbs the natural species composition of the algal mat
(periphyton) and other plant communities in the marsh. These
disturbed communities deplete the marsh of oxygen, and, ultimately,
result in native sawgrass and wet prairie communities being
replaced by dense cattail stands or other nutrient-tolerant
ecosystems. The ability of the ecosystem to serve as habitat and
forage for the native wildlife is thereby greatly diminished or
destroyed. These changes constitute imbalances in the natural
populations of aquatic flora and fauna or indicators of such
imbalances.
C. The Parties agree that surface water entering the Refuge,
including water entering through the S- 5A and S-6 pumping stations,
contains nutrient levels that are causing imbalances in the natural
8
populations of aquatic flora and fauna in violation of state water quality standards.
D. The Parties agree that surface water entering the Park
from the WCAs contains excessive nutrients that are being
accumulated in the soils and sediments downstream of one or more
Park water delivery structures. Once these soils and sediments are
loaded with excess phosphorus, nuisance species that thrive on
excess phosphorus are able to invade the marsh. The presence of
these excessive nutrients is potentially harmful or injurious to
animal and plant life in the Park. Accordingly, such nutrient-
polluted water is, or is reasonably expected to be, a source of
pollution in the Park.
E. The Parties agree that nutrient-polluted water threatens
to devastate the ecosystems in the Park and Refuge. The Parties
further agree that the actions set forth in this Agreement are
necessary to halt or prevent imbalances in natural populations of
aquatic flora and fauna and other water quality violations it the
Park and Refuge.
COMMITMENT TO RESTORING AND MAINTAINING WATER QUALITY
4. In recognition of the serious and potentially devastating
degradation threatening the Park and the Refuge as a result of
nutrient-laden waters, and to further a process that resolves
ongoing litigation, the Parties commit themselves to guarantee
water quality and water quantity needed to preserve and restore the
unique flora and fauna of the Park and the Refuge.
9
5. The State Parties shall take such action as is necessary so
that waters delivered to the Park and the Refuge achieve state
water quality standards, including Class III standards, by July 1,
2002. The State Parties commit:
A. To achieve interim phosphorus concentration limits and
levels, as reflected in Appendices A and B, by July 1, 1997.
B. To achieve long-term phosphorus concentration limits and
levels, as reflected in Appendices A and B, by July 1, 2002.
6. Compliance with the interim and long-term total phosphorus
concentration limits and levels set forth in or established
pursuant to this Agreement shall be determined in accordance with
the methodologies and procedures set forth below, including the
Appendices attached to this Agreement. If a conflict arises
between the following summaries and the Appendices, the Appendices
shall prevail.
TOTAL PHOSPHORUS CONCENTRATION LIMITS FOR THE PARK
7. The Parties agree that the interim and long-term total
phosphorus concentration limits for the Park are as set forth in
Appendix A .
A. By July 1, 1997, interim concentration limits for Shark
River Slough must be met. The approximate annual flow-
weighted concentration limit will vary based upon total annual
flow, with a range of less than 14 ppb for a dry year to less
than 9 ppb for a wet year.
B. By July 1, 2002, the long-term concentration limits must
be met for the Shark River Slough, Taylor Slough and Coastal
10
Basins. The long-term concentration limits represent the
concentration levels delivered during the OFW baseline period
of March 1, 1978 too March 1, 1979, adjusted for observed
variations The approximate long-term concentration limits
for Shark River Slough also vary with flow, with a range of
less than 13 ppb for a dry year to less than 8 ppb for a wet
year. The long-term concentration limit for Taylor Slough (S-
332 and S-175) and the Coastal basin (S-18C) is 11 ppb.
C. Compliance with these concentration limits is expected to
provide a long-term average flow- weighted mean inflow
concentration of approximately 8 ppb for the Shark River
Slough Basin and 6 ppb for the Taylor Slough and Coastal
Basins. Monitoring of biological responses in the Park will
determine if these limits are sufficient to prevent an
imbalance of flora and fauna; if not, these limits will be
adjusted to prevent an imbalance of flora and fauna.
TOTAL PHOSPHORUS CONCENTRATION LEVES AND DISCHARGE LIMITS
FOR THE REFUGE
8. The Parties agree that the interim and long-term total
phosphorus concentration levels for the Refuge are as set forth in
Appendix B. Total phosphorus concentration levels for the Refuge
were calculated from water quality data by the District
from 1978 to 1983.
A. By July 1,1997, phosphorus loads discharged from the EAA
will be reduced by approximately 80% to the EPA and 85% to the
Refuge as compared to mean levels measured from 1979 to 1988.
11
B. Interim concentration levels for the Refuge, which are
effective July 1, 1997, are based on the relationship between
phosphorus concentrations measured at the 14 interior marsh
stations and water elevations measured at 3 gauges within the
Refuge. Compliance with these concentrations in water
samples collected monthly at 14 interior marsh stations to
values between 8 and 22 ppb when water elevations in the
Refuge are between 17.14 and 15.42 feet msl, respectively.
C. Inflows to the Refuge must result in compliance with
Class III water quality criteria or long-term concentration
levels, whichever are lower, by july 1, 2002, as set forth in
Appendix B. Reseaarch and monitoring will be conducted under
this Agreement to interpret what phosphorus concentration
levels comply with Class III water quality criteria.
D. The STA and best management practices ("BMPs")
programs
are designed to limit Refuge inflow discharge concentrations
to a long-term average of 50 ppb. DER will require compliance
with a maximum annual discharge limit of 50 ppb for Refuge
inflows if the interim or the lower of the long-term marsh
concentration levels or Class III nutrient criteria are not
being met by the effective dates. By July 1, 2002, if the 50
ppb maximum annual inflow discharge limit is being met but the
lower of the long-term marsh concentration levels or Class III
nutrient criteria is being violated, DER will enforce more
stringent inflow discharge limits.
12
WATER QUANTITY REQUIREMENTS
9. Quantity, distribution and timing of water flow to the Park
and Refuge must be sufficient for maintaining and restoring the
full abundance and diversity of the native floral and faunal
communities throughout the Park and Refuge. The Parties shall take
all actions within their authority necessary to provide adequate
flows to meet the water quantity, distribution, and timing needs of
the Park and Refuge. The District shall implement mitigation
measures to offset flow reductions to the EPA resulting from
efforts to improve the water quality in the EPA. Additionaly, the
Parties through the TOC shall jointly devlop specific elements of
these actions as part of a basin-wide Everglades ecosystem
resotration plan. Nothing in this Agreement shall limit or
prejudice any rights of the park or Refuge under State or Federal
law to obtain greater or more specific water quantity.
IMPLEMENTATION OF STORMWATER TREATMENT AREAS
10. The District commits to purchase, design and construct STAs
as
set forth in Appendix C.
A. The primary strategy to remove nutrients from
agricultural runoff is the construction and operation of STAs,
which are large scale wetland treatment systems constructed by
the District. These STAs will mainly receive stormwater
directly from the primary agricultural drainage canals and
process it for the removal of nutrients through intensive
management. Deliveries may be made to the STAs from Lake
Okeechobee or other sources. These areas will be designed,
13
operated and managed primarily to purify the water before it
enters the WCAs, the Park and the Refuge. In addition, their
size and location may allow significant improvement in the
manner in which water is introduced into the natural areas.
By allowing the reintroduction of sheet flow into tens of
thousands of acres of Everglades, the completion of these
projects has the potential for improving Everglades
hydroperiod.
B. The District agrees to acquire the lands set forth in
Table 1. Table 1 provides an estimate of the effective
treatment acres of STAs. The design sizes and configurations
of STAs are based on the need to achieve an interim outflow
concentration of approximately 50 ppb at each STA outflow
point. The Class III phosphorus criteria when interpreted by
research will be implemented by July 1, 2002, if lower than
the long-term concentration levels. The size of each STA is
based on the assumption that the volume of flows experienced
during the 1979 to 1988 base period from each tributary basin
would be treated with no hydraulic bypass. These STA acreages
(with future adjustments as may be required based upon
performance as set forth in Appendix C) and the BMP regulatory
program provide the control programs which are anticipated to
meet both the interim and long-term Park and Refuge phosphorus
concentration limits and levels. However, notwithstanding their
implementation of these control programs, it the concentration
limits and levels are violated, then the State Parties will
14
implement additional remedies, such as any necessary expansion
of STAs, more intensive management of STAs, a more stringent
EAA regulatory program, or a combination of the above. The
State Parties shall not implement more intensive management of
the STAs as the sole additional remedy.
C. Table 1. STA Effective
Acres
Basin |
STA |
Approx. Total
Acres to be Acquired |
Approx. Effective
Treatment Acres |
| S-5A |
STA-1 |
12,500 |
11,800 |
| S-6 |
STA-2 |
4,000 |
3,700 |
| S-7 |
STA-3 |
5,270 |
4,950 |
| S-8 |
STA-4 |
12,930 |
12,150 |
| Total: |
|
34,700 |
32,600 |
|
|
|
|
D. The 11, 800 acres of STA-1 includes 7,400 effective
treatment area aces which will be constructed and in
operation by July 1, 1997, and 4,400 effective treatment area
acres which will be constructed and in operation by July 1,
2002, if the long-term phosphorus concentration levels for the
Refuge are not met by July 1, 2000. Each of the four major
drainage basins in the EAA will have a treatment system. They
will be designed to treat all the flow from the EAA with
respect to the 1979-1988 base period. If long-term
concentration limits and levels are not met by July 1, 2002,
additional acreage will be required as described in Appendix
C.
15
RESEARCH AND MONITORING
11. The Parties agree to the research and monitoring program
set
forth in Appendix D.
A. Several aspects necessary to achieve compliance with this
Agreement must be defined by additional research. The
research objectives are to:
1. Numerically interpret the narrative Class III
nutrient water quality criteria (i.e., the nutrient
levels which cause an imbalance of flora and fauna in the
units of the EPA); and
2. Assess current and continuing responses of the EPA
to nutrient input levels resulting from the efforts to
achieve interim and long-term concentration limits and
levels.
B. A key component of these research efforts is the
development (including appropriate data collection) of models
of phosphorus dynamics in the EPA. For example, one priority
would be an understanding of the relationships between
phosphorus input and water quality at the 4 interior marsh
stations in the Refuge, including definition of the future
role of recycling of previous excess phosphorus inputs.
C. Studies designed to test the response of key ecosystem
components and processes to different phosphorus input rates
are another important focus on the research program. An array
of indices will be used to measure sensitivity of the
ecosystem to small changes in nutrients. These will include
16
nutrient cycling processes and the basic components of the
Everglades ecosystem, such as periphyton, and other sensitive
indicators of nutrient enrichment. These indices will be used
to determine the criteria for compliance in the EPA with the
Class III nutrient criteria under the terms of this Agreement.
D. Research on the performance of STAs and BMPs is also
required to ensure achievement of the intent of this
Agreement.
E. An intensive program of monitoring is required to track
compliance with interim and long-term concentration limits and
levels, as well as the response of Everglades flora and fauna
to the phosphorus levels achieved. The monitoring program
will also provide data for modeling research.
F. The State Parties shall be primarily responsible for the
research and monitoring set forth in this Agreement, in the
Marjory Stoneman Douglas Everglades Protection Act and in the
Surface Water Improvement and Management Act, with support
from the United States. The National Park Service, the US
Fish and Wildlife Service, the USEPA and the Corps will assist
in the research and monitoring as appropriate. For example,
funds available under section 319 of the Clean Water Act can
be granted to the State parties by USEPA in support of
approved monitoring programs to assess the effectiveness of
BMPs and STAs. All aspects of the research and monitoring
programs will be directed by the TOC.
17
<REGULATORY PROGRAM
12. The Sate Parties agree to initiate a regulatory program as
set forth in Appendix E.
A. The goal of the regulatory strategy is to reduce present
total phosphorus loads from the EAA to each STA by at least 25%, by
February 1996. An interim target reduction of 10% in total
phosphorus load from the EAA will be required by February 1994.
The District will adopt rules to implement the regulatory program
by April 1992. The rules are scheduled to be effective in May
1992. At a minimum, by July 1993 the DER or the District shall
require and issue permits under an appropriate permitting vehicle,
regulating water quality for all discharges in the EAA, in a
manner consistent with the terms of this Agreement; or, if permits
are not issued by that date, institute appropriate compliance and
enforcement action, as provided in paragraph 14.
B. The regulatory program will require permits for the
discharge of water from the internal drainage systems in the EAA.
Applicants that demonstrates sufficient ability and authority may be
eligible for a Master Permit for a defined geographic area.
Applicants will be required to meet specified long-term phosphorus
load allocations as described in Appendix E. Applicants will be
required to institute a BMP Program designed to meet the applicable
interim and long-term phosphorus basin load allocation. Compliance
with these basin load allocations should result in the interim and
long-term (1996) target reduction of 10% and 25% respectively in
total phosphorus load from the EAA, being achieved. Applicants
18
will also be required to submit acceptable water quality monitoring
plans designed to document compliance with annual load allocation,
BMP implementation and operation, BMP effectiveness, and
identification of high episodic phosphorus events.
C. EAA permittees will be required to submit quarterly and
annual reports of water quality monitoring results to the District.
Permittees will also be required to submit annual reports to the
District summarizing BMP implementation and effectiveness.
D. Regulatory program enforcement will strive to identify
critical problems be for unacceptable loads occur. Compliance with
total phosphorus load allocations will be determined by measuring
appropriate adjustment for hydrologic variability with respect to
the 10 year base period, such as an adjustment for rainfall
considering that year's rainfall versus average annual rainfall
over the 10-year base period.
E. Permittees exceeding the permitted areal phosphorus load
allocation for February 1994 or 1996 shall be required to submit to
the District a plan for monitoring on a continuous basis and a
proposed compliance plan and schedule designed to achieve
compliance within 6 months.
F. The District will review the permittee’s plan and
schedule. If they are acceptable, the District will amend the
permit accordingly. If they are unacceptable, the District will
take appropriate enforcement action as se t forth in paragraph 14 or
Appendix E.
19
IMPLEMENTATION AND ENFORCEMENT PROCEDURES
13. The State Parties shall use the full scope and authority of
their planning, regulatory, permitting, enforcement and public
works powers, to bring the waters in the Park and Refuge into
compliance with the interim and long-term concentration limits and
levels in this Agreement by July 1, 1997 and July 1, 2002
respectively. Without constituting a limitation on their ability
to exercise this authority, the State Parties shall exercise such
authority as follows:
A. The State Parties shall develop an overall plan to
restore and protect the Park and the Refuge pursuant to the
following schedule:
(1) The District shall develop a SWIM Plan, consistent
with Appendices A through E, and approve it for
presentation to DER pursuant to Section 373. 456 (1), F.S.,
by the October 1991 Governing Board meeting.
(2) DER shall submit to the District within 30 days
after receipt of the approved SWIM Plan its determination
of consistency with state water policy and the state
comprehensive plan in accordance with Section 373.456(2),
F.S.
(3) The District shall take final agency action in
adopting the SWIM Plan by March 31, 1992.
(4) The District shall apply to DER for 5-year interim
permits by October 1, 1991, pursuant to the provisions of
Section 373.4592(6), F.S. The application shall be
20
designed to achieve the interim concentration limits and
levels as set forth in Appendices A and B. At a minimum,
the application shall include the interim concentration
limits and levels, the nutrient removal(STA) program,
proposed regulatory program and research and monitoring
program, consistent with Appendicies A through E. Prior
to expiration, the District shall apply for renewal of
the permits as provided in the Section 373.4592(6), F.S.
to achieve the long-term concentration limits and levels
set forth in Appendices A and B.
(5) The DER shall take final agency action on the permit
applications on or before July 1, 1992; or,
alternatively, initiate appropriate compliance and
enforcement actions set forth in paragraph 14 if
permits are not issued by then.
(6) The District shall initiate acquisition for the STAs
as set forth in the following table:
STA Acquisition Schedule
Basin |
STA |
Approx. Total
Acres to be Acquired |
Date Acquisition
to be Initiated |
| S-5A |
STA-1 |
12,500 |
October 1, 1991 |
| S-6 |
STA-2 |
4,000 |
August 1, 1991 |
| S-7 |
STA-3 |
5,270 |
August 2, 1882 |
| S-8 |
STA-4 |
12,930 |
August 1, 1992 |
|
|
|
|
(7) The State Parties all seek expedited resolution of
any judicial or administrative proceedings with regard to
implementation of their commitments in this Agreement in
order to meet the schedules set forth in this Agreement.
21
B. The proper concentration limits and levels for total
phosphorous in surface waters entering and within the Park and
Refuge and nutrient removal acreage required to improve and
protect water quality are based on the scientific and
technical evidence developed by the Parties and set forth and
referred to in the Appendices. In any administrative hearing
on the SWIM Plan or permits, the State Parties shall support
and defend the SWIM Plan and permits consistent with
Appendices A through E. The United States shall provide
technical assistance to support the State Parties in
accordance with paragraphs 17 and 18.
14. The State Parties acknowledge that they have the authority
to
initiate compliance and enforcement action as set forth below.
This Agreement does not constitute a limitation on the ability of
the State Parties to exercises such authority.
A. The DER acknowledges that it has the authority to require
persons reasonably expected to be sources of pollution
affecting the Park or Refuge to undertake action necessary to
achieve and maintain compliance with water quality standards
in the Park and Refuge. Such authority includes the
following:
(1) Initiation of administrative or civil enforcement
action against persons responsible for source of
pollution affecting the Park and Refuge to correct or
eliminate the source of pollution, and to seek civil
penalties and recovery of damages for violations.
22
(2) Issuance, modification or revocation of permits for
such persons.
B. The District acknowledges that it has the statutory
authority to require persons constructing, altering, operating
or maintaining surface water management or stormwater
management systems, using or withdrawing water, or connection
to or making use of works of the District, to undertake action
necessary to achieve and maintain compliance with water
quality standards in the Park and Refuge. Such authority
includes the following:
(1) Initiation of administrative or civil enforcement
action against persons responsible for the activities
described above to correct or eliminate the sources of
pollution and to seek civil penalties and recovery of
damages for violations.
(2) Issuance, modification or revocation of permits for
such persons.
C. In the event that the schedule set forth in this
Agreement for achieving and maintaining timely compliance with
water quality standards is not met, the State Parties commit
to exercise their authority as set forth in this paragraph to
initiate appropriate action to achieve and maintain compliance
with water quality standards.
15. The Corps shall apply to DER for stormwater management
permit(s) pursuant to Section 373.416, F.S., for the operation of
S-10, S-11, and S-12 water control structures, and for the
23
construction ad 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 the water quality problems
addressed in this 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 DER shall not require the Corps to construct any
STAs as a part of the operating permit(s) to be issued for the S-
10, S-11, and S-12 water control structures. The Corps agrees to
cooperate in the modification of its regulation of the central and
Southern Florida 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. Nothing in this Agreement
shall alter or affect the obligations of the parties to the
Memorandum of Understanding between the Corps and DER dated
December 4, 1979, as amended. Future projects designed by the
United States which affect the Park or Refuge shall consider the
environmental and water quality commitments set forth in this
Agreement.
PRESERVATION AND PROTECTION OF THE RIGHTS OF THE
MICCOSUKEE AND SEMINOLE TRIBES
16. Nothing in this Agreement shall diminish or alter the
governmental authority and powers of the Miccosukee Tribe of
24
Indians of Florida and the Seminole Tribe of Florida, or diminish
or alter the rights of those tribes, including rights under any
tribal agreement with any Party to this Agreement. No land of
either the Miccosukee Tribe of Indians of Florida or the Seminole
Tribe of Florida shall be used for STAs to be established under
Appendix C of this Agreement without the consent of the Tribe
involved.
MUTUAL COOPERATION
17. The Parties agree that mutual cooperation is essential to
implementing the actions necessary to achieve the commitments set
forth in this Agreement. To accomplish this the Parties will
provide assistance to each other in their responsibilities under
this Agreement, including but not limited to the sharing of
information, defense of this Agreement against challenges by
others, support for the acquisition of funds to assist in the
accomplishment of these commitments, and the provision of technical
and scientific assistance to any party seeking to defend in legal
proceedings any of the commitments in this Agreement.
TECHNICAL OVERSIGHT COMMITTEE (TOC)
18. Each of the persons designated in paragraph 19A shall
appoint
one technical representative, and one alternate to the TOC. The TOC
will plan, review and recommend all research, monitoring and
compliance, conducted pursuant to the terms of this agreement, and
will consider technical advice and assistance for each activity as
necessary from the appropriate agencies and from other state and
federal agencies and consultants. The TOC will make technically
25
based recommendations by consensus approach; when a technically
based recommendation cannot be reached by consensus, a 4 out of 5
majority, the impasse will be reported back to the Parties for
mediation as provided for in paragraph 19.
SETTLEMENT OF DISPUTES
19. The Parties desire and agree to use their best efforts to
work
cooperatively toward achieving the restoration and maintenance of
water quality in the Everglades. The Parties shall endeavor at all
times to maintain a spirit of cooperation and to settle
disagreements through good faith negotiation between or among
themselves.
A. The following persons or their designs are responsible
for notifying their respective counterparts of the initiation
of the procedures set forth in this paragraph:
(1) Superintendent of the Park;
(2) Manager of the Refuge;
(3) Secretary of DER;
(4) Executive Director of the District; and
(5) District Engineer, Jacksonville District, U.S. Army
Corps of Engineers.
B. The Party seeking to utilize these provisions must notify
all other Parties, counsel of record for the United States,
and the general counsels for the State Parties, of the
initiation of these procedures.
C. The Party seeking relief shall first notify the other
Parties to this Agreement in writing by certified mail, return
26
receipt. Representatives of the Parties shall arrange to meet
within 15 days of receipt of such notice for the purpose of
consulting and resolving the concern.
D. If after meeting the Parties cannot resolve the concerns
within a reasonable time, any Party may require meditation.
The Parties shall attempt to agree upon a single mediator.
Alternatively, the State Parties shall designate the other. Any efforts
for mediation shall conclude within 60 days of the receipt of
the certified letter unless the Parties otherwise agree in
writing.
E. If consultation or mediation has failed to resolve the
concerns, any party shall be entitled to apply to the Court
for judicial resolution of the disagreement. Such application
shall be by motion setting forth the matter in disagreement
and the relief being requested to address the disagreement.
No party shall be entitled to file such a motion, or otherwise
to seek judicial resolution of the disagreement, unless and
until the procedures set forth above have been tried and
exhausted.
F. Resort to the procedures contained in this paragraph
shall not extend or postpone any Party's obligations under
this Agreement.
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LITIGATION COSTS
20. Each party shall bear its own costs and fees, and each
party
waives any right to seek penalties and damages, for all proceedings
in this case up to and including entry of an order approving and
incorporation this Agreement as provided in paragraph 22. Nothing
in this paragraph shall constitute a limitation on any party to
seek appropriate relief in conjunction with any action to
enforce any of the terms of this Agreement.
INTEGRATION CLAUSE
21. This Agreement incorporates the entire agreement between
the
District, DER and the United States with respect to the claims
brought by the United States and the counterclaims bought by the
State Parties. No part of this Agreement shall be binding on the
Parties unless it is approved in its entirety by Court order,
unless the Parties agree otherwise in writing.
JURISDICTION
22. The Parties acknowledge that the Court has jurisdiction
over
this action, but all Parties reserve their rights to raise
jurisdictional issues in any other actions. The parties agree to
the entry of the proposed order attached hereto as Exhibit 1 by
which the Court shall retain jurisdiction over this action for the
purpose of enabling any of the Parties to this Agreement to apply
to the Court at any time for such further orders of directives as
may be necessary or appropriate for enforcement or modification of
this Agreement.
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FORCE MAJEURE
23. The parties recognize that notwithstanding their compliance
with the commitments contained herein, events beyond their control
may prevent or delay one or more commitments. Such events may
include natural disasters as well as unavoidable legal barriers
or restraints, including those arising from the actions of persons
not Parties to this Agreement. Force majeure shall not include
increased costs of activities covered by this Agreement, whether or
not anticipated at the time such activities were initiated. Force
majeure shall not continue beyond the circumstances and conditions
that prevent timely performance, and shall not apply if alternative
means of compliance are available. If a Party is of the opinion
that such an event has occurred, the Party has an affirmative
obligation to initiate immediately the dispute resolution provision
set forth in paragraph 19, as a prerequisite to seeking relief from
that Party's commitments. The Party claiming force majeure shall
have the burden of proof.
29
DATED this 26th day of July, 1991.
Secretary
Florida Department of
Environmental Regulation
_______________________
Carol M. Browner |
Acting Assistant Attorney
General
Environmental and Natural
Resources Division
____________________
Barry M. Hartman
|
| Chairman of Governing Board
South Florida Water Management
District
_________________________
Allan Milledge |
United States Attorney
Southern District of Florida
_________________________
Dexter W. Lehtinen
|
| Interim Executive Director
South Florida Water Management
District
__________________________
Timer E. Powers
|
|
|
|
|