1
I. INTRODUCTORY STATEMENT
Everglades National Park ("the Park") and the Arthur R.
Marshall Loxahatchee National Wildlife Refuge ("the Refuge" or
"Loxahatchee") are unique natural wonders. As the major remnants
of the greatly diminished original Everglades, the Park and the
Refuge contain unmatched, world-renowned examples of biologically
rich and diverse ecosystems. Both the Congress of the United
States and the legislature of the State of Florida have
determined that the Park and the Refuge deserve the strongest
protection the law provides so they will be preserved for all
future generations. Yet tragically, the ecological integrity and
ultimately the survival of the Park and Refuge are today
threatened by the inflow of nutrient-polluted water.
In this action the United States alleges that the
failure of the South Florida Water Management District and John
R. Wodraska ("the District" or "SFWMD") and the Florida
Department of Environmental Regulation and Dale Twachtmann ("the
DER") to enforce state water quality standards and to meet
contractual obligations has irreversibly damaged, and is
continuing to damage, the Refuge and the Park.1 The United
2
States now moves for partial summary judgment on the defendants'
liability under the Second Amended Complaint. Although some
aspects of this litigation may be complex, determination of the
issue of liability under the relevant statutes and contracts is
not. As the court itself noted at an early proceeding in this
case, the question of liability is relatively simple and
straightforward. By moving for summary judgment, the United
States hopes to accelerate the Court's and the parties'
consideration of the critical issue of relief so that effective
remedial measures halting the damage to the Park and the Refuge
can be implemented as expeditiously as possible.
II. SUMMARY OF ARGUMENT
Florida law charges the District and DER with affording
the highest levels of protection possible to the fragile and
vulnerable ecosystems of the Park and the Refuge. In addition,
the defendant District owes contractual duties to the United
States pursuant to the Cooperative and License Agreement between
the Central and Southern Florida Flood Control District and the
United States of America ("License Agreement") (Exhibit
1)
establishing the Refuge, and the Memorandum of Agreement Among
the Army Corps of Engineers, the South Florida Water Management
District and the National Park Service for the Purpose of
3
Protecting the Quality of Water Entering Everglades National Park
("MOA") (Exhibit 2), which incorporates state water quality
standards. The District and DER have breached Florida's strong
water quality laws, which were designed to safeguard these
ecological treasures by prohibiting imbalances of their native
plant and animal life and further degradation of their water
quality. The District has also breached its contractual
responsibilities by failing to protect the water quality in the
Park and Refuge.
The hallmark characteristic of the unspoiled Everglades
that still exist in remote portions of the Park and Refuge is the
nutrient-lean (oligatrophic) 2
condition of their aquatic
ecosystems. These ecosystems, as yet untainted by polluted
agricultural drainage, respond adversely and irreversibly
3 to
4
even minute increases in nutrient concentrations, the most
important of which for purposes of this motion is phosphorus.
Excess phosphorus accumulates quickly and permanently in the peat
underlying the water; alters the activity of microorganisms in
the water; disturbs the natural species composition of the algal
mat (periphyton) and other plant communities in the marsh;
depletes the marsh of oxygen; and, ultimately, causes native
sawgrass and wet prairie communities to give way to dense,
noxious cattail stands. The ability of the ecosystem to serve as
habitat and forage for the native wildlife is thereby greatly
diminished or utterly destroyed. These changes constitute
imbalances in the native flora and fauna populations which the
Park and Refuge were expressly established to permanently
preserve.
Since at least 1979, the phosphorus concentrations in
water entering the Park and Refuge have been increasing. To
date, the Refuge, which receives agricultural discharges directly
from the intensively farmed Everglades Agricultural Area ("EAA"),
exhibits more extensive damage than does the Park. Already, over
6,000 acres of the Refuge have converted from native sawgrass and
wet prairie communities to cattail-dominated communities as a
5
result of nutrient-polluted inflows. 4
In addition, countless
additional acres of the Refuge suffer the changes which portend
cattail domination of the marsh, including irreversible excess
phosphorus loading in the peat soils, periphyton impacts, and
DER-documented depletion of dissolved oxygen. Indeed, a total of
at least 24,000 acres, or 17 percent, of the Refuge has been
affected adversely by nutrient pollution. These changes have
adversely affected the native wildlife in the Refuge, including
its spectacular population of birds.
Cattails and other nuisance species have also begun to
dominate portions of the marsh at the north of the Park, and
elevated phosphorus levels in the peat and abnormal activity of
microorganisms in the water exist in a six-kilometer deep fringe
along t he Park's northern border. 5
The detrimental alteration of
the aquatic ecosystem, including invasion of nuisance species,
which has already begun in the Park, will continue inevitably if
6
the current increasing trend in Park inflow phosphorus
concentrations is not abated.
Nutrient-polluted agricultural drainage that the
District and DER allow to flow into the fragile Everglades
ecosystems in the Park and Refuge causes this elevation of
nutrient concentrations and consequent ecosystem damage. This
degradation violates state water quality standards which Florida
law requires the defendants to enforce. Under the State's
statutory water pollution control scheme, the Park and Refuge are
classified as Class III waters, to be protected for recreation
and the propagation of a healthy, well-balanced population of
fish and wildlife. They are also listed as Outstanding Florida
Waters ("OFW's"), granted the highest level of antidegradation
water quality protection available in Florida. F.A.C. § 17-
3.041(l) (1990). The water entering these waters from the EAA to
their north contains nutrient concentrations far greater than-
indeed, up to twenty times greater than - levels of nutrients
naturally and historically present in the nutrient-lean
Everglades.
This drastic increase in nutrients causes violations of
four Class III water quality standards applicable to the Park and
Refuge: 1) it causes depletion of dissolved oxygen in the water
below the numerical dissolved oxygen standard; 2) it allows the
dominance of nuisance species in vast portions of the marsh; 3)
it diminishes the biological integrity of the water below the
legally binding numerical standard; and 4) it causes an imbalance
7
in natural populations of aquatic flora and fauna. In addition,
the District's own data demonstrate that the nutrient
concentrations in Refuge and Park inflows have steadily increased
since 1979, in violation of the OFW standard prohibiting any
degradation of the water quality in the Park and Refuge after
1979. These perturbations of the aquatic ecosystems in the Park
and Refuge also constitute a nuisance under Florida law. By not
requiring permits or incorporating and enforcing water quality
conditions in the various permits they issue, the defendants have
failed and continue to fail to exercise their ample authority
under Florida law to control these violations. The District's
failure to abate nutrient pollution and resultant habitat
destruction in the Refuge and Park also constitutes a breach of
the License Agreement, which obligates the District to protect
wildlife uses in the Refuge, and the MOA, which incorporates
state water quality standards applicable to the Park.
Throughout this litigation, the defendants have claimed
that the urgent problems alleged in the Second Amended Complaint
will be addressed and solved pursuant to the Surface Water
Improvement and Management ("SWIM") Plan for the Everglades that
the District is preparing. 6
See Fla. Stat. Ann. § 373.451 et
8
seq. (1988). The District now has approved and made public a
final draft SWIM Plan (Exhibits 11c, 11d, 80), which was preceded
by three drafts (Exhibits 5-11b). 7
The SWIM Plan remains deficient in numerous significant
ways. It betrays a lack of commitment on the part of the
defendant District to confront and remedy the critical problems
facing the Park and the Refuge. The Plan seems to recognize that
the Park and Refuge are facing a critical water quality problem,
that damage to Everglades resources has occurred and continues to
occur, and that the EAA is the source of the problem. It notes
some superficially worthwhile remedial proposals. Nonetheless,
the SWIM Plan rings hollow. Specifically, it fails to require
9
strict compliance with enforceable performance-based standards,
fails to commit to a reasonable and definite timetable, fails to
include a concrete funding scheme with contingency plans if
funding cannot be obtained, fails to require responsible parties
to clean up the pollution they cause, and fails to provide a
scientific or technological explanation of the remedial strategy
it proposes. (See Draft and Final SWIM Plans and U.S. comments,
Exhibits 5-13). In short, it will not protect the Everglades
from destruction. Given the inadequacy and delay in the SWIM
administrative process and the continuing degradation of these
unique Everglades ecosystems, prompt judicial resolution of the
United States' claims for legal protection of the Park and Refuge
is essential. This is why the United States moves for partial
summary judgment at this time.
III. FACTS
The following sections set out the undisputed factual
context in which this dispute is being litigated. 8 The first
section describes the establishment of the Park and the Refuge
and the unique features which have earned them national and
international recognition. The next section describes the nature
of unimpacted aquatic ecosystems in the Park and Refuge and the
10
extreme vulnerability of those ecosystems to nutrients,
particularly phosphorus. The following section recounts the
manner in which the defendant District sends nutrient-laden water
to the Park and the Refuge; the damage that nutrient-polluted
water inflicts on nutrient-lean ecosystems in the Everglades; the
irreversible harm that has already occurred in the Park and
Refuge; and the inevitable dire consequences that will result if
degradation of these invaluable resources continues. The final
section recounts the history of the defendants' inaction, in the face
of long-standing and ever-mounting evidence of nutrient
degradation of the Everglades and the defendants' ample authority
to take corrective action, which prompted the United States to
file this lawsuit and now this motion.
A. Everglades National Park
Everglades National Park contains approximately 1.4
million acres of diverse subtropical habitat, most notably an
expansive "river of grass" 9
roughly 50 miles wide, at Florida's
southern tip. Authorized by Congress in 1934 and dedicated by
President Truman in 1947, the Park preserves numerous unique
features of global significance. See 16 U.S.C. § 410c (1988).
The Park supports ten endangered species and three threatened
11
species and plays a major role as a habitat of plants and of
aquatic and other animals of tremendous scientific, ecological
and economic importance. Nomination of Everglades National Park
as a Wetland of International Importance, at 4 (Exhibit
14). In
addition, the Park has special value for maintaining genetic and
ecological diversity because of the quality and uniqueness of its
flora and fauna. Id. at 4. The Park is well situated and well
equipped for scientific research and education, offering special
opportunities for promoting global understanding and appreciation
of wetlands. Id. at 4.
Everglades National Park has no equal in the world.
The Park is a World Biosphere Reserve (1976); 10 a World Heritage
Site (1979); 11
and a
Wetland of International Importance under
12
the terms of the Ramsar Convention. 12
There are only two other
sites in the world, and none other in the western hemisphere,
which appear on all three lists - Lake Ichkeul, in Tunisia, and
Strebarna Lake, in Bulgaria. No other international recognition
of its uniqueness and biological importance.
Congress has long recognized the Park's national and
international importance. As Congressional debate leading to the
Park's authorization reflected, "[Everglades National Park] is a
country distinctly different from anything else in all our great
country, if not the entire world." 78 Cong. Rec. H9501 (daily
ed. May 24, 1934) (statement of Rep. Treadway) (Exhibit 18).
Specifically, Congress has found that "[t]he Everglades National
Park is the largest and most important subtropical wilderness in
North America. Although it is one of the largest national parks
in the country, it contains perhaps the most fragile and unique
plant and animal communities in the national park system." H.R.
Rep. No. 1455, 91st Cong., 2d Sess. 2-3 (1970) (Exhibit 19). In
addition, Congress recognized the Park's distinctive dependence
on water, noting that "[a]nything that affects the water affects
13
the plant communities associated with it and the animal
communities related to them.m Id. at 3.
In light of the fragility and uniqueness of the
Everglades, Congress provided in the Everglades National Park
Enabling Act of 1934 that the Park "shall be permanently reserved
as a wilderness, and no development of the project or plan for
the entertainment of visitors shall be undertaken which will
interfere with the preservation intact of the unique flora and
fauna and the essential primitive natural conditions now
prevailing in this area." 16 U.S.C. § 410c (1988).
13 More
recently, Congress designated 1.3 million of the 1.4 million
acres in the Park as a federal Wilderness Area worthy of strict
preservation. 16 U.S.C. §§ 1131-1136 (1988).
The State of Florida recognizes the vital importance of
Everglades National Park and charges its own agencies with the
responsibility for protecting it. The Park, classified in 1979
as an Outstanding Florida Water (OFW), has consistently received
the highest possible water quality designations under state
law.14 Additionally, the
Florida legislature decreed that "[t]he
14
South Florida Water Management District shall not divert waters
to the ... Everglades National Park in such a way that the state
water quality standards are violated [or] that the nutrients in
such diverted waters adversely affect indigenous vegetation
communities or wildlife ...." Florida Surface Water Improvement
and Management Act, Fla. Stat. Ann. § 373.4595(2)(a)l (1988).
These nondegradation designations, coupled with Class III state
water quality standards, provide additional mandates for
providing paramount protection to the Park.
B. The Arthur R. Marshall Loxahatchee National Wildlife
Refuge
The Arthur R. Marshall Loxahatchee National Wildlife
Refuge contains 145,635 acres (589 sq. km.) of Everglades wetland
habitat, forming the northeastern extreme of the remaining
Everglades. SFWMD First Draft SWIM Plan, Vol. III, at B-77
(1989) (Exhibit 8); H.R. Rep. No. 99-535, 99th Cong., 2d Sess. 2
(1986) (Exhibit 20). State-owned wetlands, called Water
Conservation Areas ("WCAs"), separate the Park and Refuge by
about 50 miles. See Map of the South Florida Water Management
District [hereinafter Map] (Exhibit 21). The Refuge was
originally created in 1951 when the District's predecessor, the
Central and Southern Florida Flood Control District, entered into
a "Cooperative and License Agreement" with the U.S. Department of
the Interior through the U.S. Fish and Wildlife Service (Exhibit
1).
15
The agreement contemplated multiple purposes for land use in
the Refuge, providing that the Refuge would be operated to
promote wildlife preservation to the greatest extent possible
while still meeting the primary purpose of flood control.
License Agreement, at ¶ 2(a) (Exhibit 1).
Like the Park, the Refuge is characterized by its
unique freshwater marsh ecosystem. The Refuge marsh provides
habitat for numerous species, including several threatened and
endangered species and one of the largest populations of wading
birds in the Everglades ecosystem. Declaration of Dr. Mark
Maffei, at ¶ 8 (Sept. 4, 1990) [hereinafter Maffei Decl.]
(Attachment B). High species diversity and the complexity of the
interspersion of habitat types are the outstanding features of
the Refuge. First Draft SWIM Plan, Vol. III, at B-86 (Exhibit
8). The Refuge consists of a spatially complex mosaic of wet
prairies, tree islands, aquatic sloughs and sawgrass stands that
represent the last remaining examples of native, northern
Everglades habitat. H.R. Rep. No. 99-535, 99th Cong., 2d Sess.,
at 2 (1986) (Exhibit 20). Because of its unique features, the
Refuge, like the Park, is classified under state law as an OFW.
F.A.C. § 17-3.041 (1990).
Loxahatchee is designated under the Endangered Species
Act as Critical Habitat for the endangered snail kite. 50 C.F.R.
Ch. 1, § 17.95(b), at 196-197 (1989). It also provides habitat
for the endangered Florida panther and the endangered bald eagle.
Maffei Decl., at ¶ 9. The Refuge provides feeding, roosting, and
16
nesting habitat to thousands of migratory birds, including blue-
and green-winged teal, ring-necked ducks, American widgeon,
mottled ducks, great blue herons, wood storks, great egrets,
snowy egrets, and little blue herons. 15
Id. at ¶ 8. The
abundance and diversity of flora and fauna in the Refuge are
critically dependent on the quality of water and the extent and
diversity of aquatic habitat available in the Refuge. Id. at ¶ ¶
14-15.
C. Development and Agricultural Water Use Has
Significantly Damaged the
Historic Everglades
The Park and the Refuge constitute the southernmost and
northernmost remnants of the historic Everglades. Together with
small pockets in the WCAs, they contain the last examples of the
pristine Everglades marsh ecosystems which were prevalent in
South Florida prior to the growth of agriculture and urban areas
during the past seventy-five years. The water quality statutes
at issue in this litigation were enacted to preserve the
immeasurable value of these ecosystems. Despite this protection,
development in south Florida, particularly agricultural
development in the EAA since 1950, has significantly reduced the
size of the remaining Everglades, and nutrient-polluted drainage
from these agricultural lands, in former Everglades, threatens
their future.
17
1. The Everglades Ecosystem
a. The Native Everglades Ecosystem is Very
Sensitive to Excess
Nutrients
The native Everglades marsh ecosystem contains diverse
wetland communities, including periphyton, sawgrass marsh, wet
prairie, aquatic slough, tree island, willow stand and cypress
swamp. SFWMD Second Draft SWIM Plan, Vol. I, at 19 (1990)
(Exhibit 9) . At one time, these vegetative communities were
distributed throughout the Everglades in a mosaic of distinct and
valuable habitat types. Id. This integration of diverse habitat
types - sloughs, wet prairies, sawgrass marshes and tree islands
-still characterizes Loxahatchee, and indeed is its prevailing
feature. Maffei Decl., at ¶ 7 (Attachment
B). The southern part
of the ecosystem, today contained in the Park, was and still is
characterized by a diverse mosaic of freshwater wetland
communities, grass prairies, upland pineland, tropical hardwood
forests and hammocks, tidally-influenced mangrove forests, and
the seagrass beds of Florida Bay. Second Draft SWIM Plan, Vol.
I, at 19 (Exhibit 9).
The natural ecosystem of the Everglades is one that
evolved under and continues to depend on maintenance of extremely
low levels of phosphorus. Nutrient levels in the water column of
the original Everglades were very low, as they are today in
unimpacted remnants of the native marsh. Jones Decl., at ¶ 3
(Attachment A). Because phosphorus was available in such low
supply that it limited biological growth and productivity, it is
the nutrient that shaped historical Everglades flora and fauna.
18
Id. at ¶ 3. Therefore, changes in the amount of phosphorus in
the Everglades ecosystem are especially significant. The
presence of low vegetative growth rates; low concentrations of
phosphorus within the periphyton and in interior marsh surface
waters; and the low phosphorus content of unaltered Everglades
soils all indicate that phosphorus was scarce. SFWMD Draft
Everglades Nutrient Removal Management Plan, at 26 (undated)
[hereinafter Everglades Nutrient Removal Plan] (Exhibit 22).
Remote sites in the interior of the Everglades marsh,
far removed from the influence of artificial nutrient sources,
provide the best estimates and remaining examples of pristine
Everglades water quality. First Draft SWIM Plan, Vol. III, at A-
10 (Exhibit 7). At these interior sites, phosphorus
concentrations in surface waters are extremely low due to limited
loading of nutrients into the peat and the rapid uptake and
recycling of phosphorus by microorganisms and physical processes.
Id. Phosphorus loads are low because the surface flow entering
remote sites undergoes natural phosphorus removal through
biological uptake in upstream marshes, and because rainfall at
those sites contains relatively low levels of contaminants, such
as nutrients, from human activities. Concentrations of
biologically-available phosphorus - i.e., phosphorus that
organisms in the marsh can consume readily - in the surface
waters of these remote locations typically are less than 0.004
milligrams per liter (mg/1), at the limit of chemical detection.
19
Id. Total phosphorus concentrations average less than 0.010
mg/1- Id.
As noted above, the nutrients in remote interior
marshes derive mainly from rainfall, which contains extremely low
nutrient levels, and thus those marshes approximate the original,
nutrient-limited Everglades ecosystem. Id. at A-11. Not only
are background marsh nutrient concentrations very low, but any
nutrients that enter the system from rainfall, bird droppings or
other natural sources are rapidly assimilated by the ecosystem,
with no net accumulation of phosphorus. Id. at A-10, A-11.
Under these natural conditions, native Everglades wet prairies,
sloughs and sawgrass wetlands are relatively effective nutrient
traps. Id. at A-11. At very low, naturally occurring nutrient
concentrations, the sawgrass marsh and its associated microflora
efficiently utilize the very limited supplies of nitrogen and
phosphorus that are naturally available in surface waters as they
pass through the marsh. Id. However, the ability of sawgrass
and other native Everglades flora to remove phosphor us from the
water is overwhelmed at elevated nutrient concentrations. S.
Davis, et al., Statement Paper: An Assessment of the Potential
Benefits to the Vegetation and Water Resources of Everglades
National Park and the Southern Everglades Ecosystem Associated
with the General Design Memorandum to Improve Water Deliveries to
Everglades National Park, at 4 (1987) [hereinafter Statement
Paper: An Assessment] (Exhibit 23). Even minute increases in the
nutrient supply to the Everglades have been observed to have
20
major ecosystem impacts. Id. at 4; Jones Decl., at ¶ 4
(Attachment A).
As discussed in later sections, the Everglades have
been and continue to be subjected to nutrient-polluted water
originating in the EAA. The addition of enhanced levels of
nutrients to a nutrient-limited system such as the Everglades
causes degradation by elevating the phosphorus content of the
peat soil; disturbing biological and chemical processes in the
marsh; and altering the vegetative communities. Jones Decl., at
¶ 4 (Attachment A). The peat, marsh processes, and marsh biota,
adapted to a low-nutrient environment, cannot keep pace with the
phosphorus load, and phosphorus consequently accumulates
unnaturally in the ecosystem. Id. at ¶ ¶ 2-4. These imbalances
occur throughout the ecosystem, favoring survival of pollutant-
tolerant species, such as cattail, and decline of others, such as
sawgrass. Statement Paper: An Assessment, at 4 (Exhibit 23);
Second Draft SWIM Plan, Vol. I, at 21 (Exhibit 9). These
changes, which are systemic impacts affecting every aspect of the
marsh ecology, result in destruction or reduction of habitat for
numerous wildlife species, including some that are endangered or
threatened. Id. at 22.
Because the entire Everglades ecosystem developed under
phosphorus-limited conditions, the integrity of the Everglades
ecosystem is dependent on maintaining those low-phosphorus
conditions. Everglades Nutrient Removal Plan, at 26 (Exhibit
22). Otherwise, nutrient enrichment will continue to result in
21
an overall decline in the total number or diversity of species,
and an increase in nuisance species. The ultimate and tragic
result will be a pollution-drenched ecosystem at the southern tip
of Florida with none of the unique and irreplaceable features of
the pristine Everglades -- a permanent loss of one of the world's
unequaled natural wonders.
b. Drainage in South Florida Has Greatly
Diminished the Historical Everglades
The Everglades have undergone many changes in this
century, particularly, and most dramatically, since the rapid
growth in agriculture which began in the 1950s. Present
conditions in the Everglades are strikingly different than those
which existed in the mid-19th century. First Draft SWIM Plan,
Vol. III, at A-11 (Exhibit 7). Prior to recent wide-scale
development in South Florida, water moved freely across the
shallow Everglades, which originally covered approximately 4,000
square miles. Id . at A-10; Second Draft SWIM Plan, Vol. I, at 19
(Exhibit 9). Water flowed through more than 90 miles of
sawgrass, wet prairies and open water sloughs, from Lake
Okeechobee to coastal estuaries and Florida Bay. First Draft
SWIM Plan, Vol. III, at A-10 (Exhibit 7). See Map (Exhibit
21).
In the native Everglades, water moved as sheet flow southward at
an almost imperceptible pace over this flat wetland terrain.
First Draft SWIM Plan, Vol. III, at A-10 (Exhibit 7). Today,
more than half the original Everglades have been drained,
primarily for agricultural development, and the water flows
22
through a highly managed system of canals and levees in greatly
altered flow patterns. Id. at A-11.
Everglades National Park is the last recipient of water
in the highly-managed Kissimmee-Okeechobee-Everglades hydrologic
regime, which begins at the source of the Kissimmee River. See
Map (Exhibit 21). The waters of the Kissimmee River watershed
drain into Lake Okeechobee, which in turn provides water to the
EAA. The EAA comprises 822 square miles of drained and
cultivated Everglades wetlands used to grow crops such as sugar,
sod and vegetables. First Draft SWIM Plan, Vol. III, at B-55
(Exhibit 8); Second Draft SWIM Plan, Vol. II, at 31 (Exhibit
10).
Drainage from the EAA directly enters state-owned wetlands, the
WCAs, which lie south and east of the EAA. There are five WCAs
labelled from north to south: WCA-1 (contained in the Loxahatchee
National Wildlife Refuge), WCA-2A, WCA-2B, WCA-3A, and WCA-3B.
16
See Map (Exhibit 21). The Park lies at the southern terminus of
the Kissimmee River watershed, directly south of the Refuge and
the WCAs. The modern remnants of the original Everglades are
contained mostly within the approximately 1.4 million acres of
the Park and the 860,000 acres of the WCAs. S. Davis, Sawgrass
23
and Cattail Nutrient Flux: Leaf Turnover, Decomposition, and
Nutrient Flux of Sawgrass and Cattail in the Everglades, at 4
(Undated) (Exhibit 25).
2. District Water Management is
Irreversibly Damaging
the Everglades
a. District Water Management Pollutes the Park
and the Refuge
i. Water Management in the EAA Causes
Increased Nutrient Concentrations in
Drainage Waters Which District Pumps
Discharge to the Refuge, the WCAs and
the Park
The Everglades Agricultural Area, bordering Lake
Okeechobee, is the first segment of the canal and levee system
stretching from the lake to the Park. First Draft SWIM Plan,
Vol. III, at B-55 (Exhibit 8). Almost all the land in the EAA is
in agricultural production. Id. Agriculture within the EAA
requires extensive drainage and irrigation of the rich organic
soil. Id. During the wet season, growers commonly pump large
volumes of nutrient enriched water off their land to protect
crops against flooding. Id. In the dry season, irrigation water
is released from the lake and utilized by agricultural concerns
as needed. Id. at B-60. The primary drainage and irrigation
system for the EAA consists of a network of canals, levees, pumps
24
and water control structures operated by the District.
17 Id. at
B-55
The replacement of natural habitats in the EAA with
intensive agricultural uses that depend on the Everglades as a
receiver of runoff has adversely affected water quality in the
Everglades system. Formerly, this vast area was part of the
untamed, low-nutrient Everglades. Now, drainage and aeration of
EAA soils which results from on-farm water management practices
in the EAA cause shrinkage, consolidation and biological
oxidation of the soils to a point where soil losses result in
measurable ground level subsidence over time. 18 First Draft SWIM
Plan, Vol. III, at B-65 (Exhibit 8). This soil subsidence in the
EAA has reduced the thickness of the EAA soil profile by about
25
one half and is a major contributor of nitrogen and phosphorus,
which are released through mineralization when the soil is
oxidized, into EAA drainage canals. 19
First Draft SWIM Plan,
Vol. III, at B-65-B-66 (Exhibit 8). Exhibits 31 and 32
illustrate soil losses in the EAA from 1973 to 1988.
Adverse impacts of EAA drainage on downstream water
quality result because of the large volume of water that is
pumped off EAA farmland and the release of nitrogen and
phosphorus, derived from leaching and subsidence of EAA organic
soils, into surface drainage waters. 20
First Draft SWIM Plan,
Vol. II, at 29-30 (Exhibit 6). EAA discharges represent a more
than 100-percent increase over the nutrient load in rainfall that
under natural conditions would be the principal nutrient source
for the marsh. , Vol. III, at B-122. In addition, EAA
drainage contains average phosphorus concentrations ten times
higher than background concentrations of phosphorus observed at
interior marsh sites. 21
Id.
26
The adverse impacts on downstream resources are
exacerbated by the ability of farmers in the EAA, unconstrained
by the defendants, to avoid the impacts of droughts and heavy
rainfall by excessive pumping of water onto or off their fields
at whim. First Draft SWIM Plan, Vol. III, at B-67 (Exhibit 8).
Moreover, in spite of the already huge phosphorus load which
derives from agriculture uses in the EAA, the SFWMD projects an
increase in demand for agricultural irrigation water from
1,275,000 million gallons per year (MGY) in 1988 to 1,427,000 MGY
in 2000. Memorandum from D. Gilpin-Hudson to B. Adams (Aug. 22,
1989) (Exhibit 33). 22
27
The WCAs, including the Refuge, are the first
recipients of the nutrient-polluted waters that flow south from
the EAA. 23
Because of the relatively large volumes of water they
discharge, the District's S-5A, S-6, S-7 and S-8 pump stations
are the four largest surface water sources of nutrients to the
WCAs. 24
Second Draft SWIM Plan, Vol. II, at II-50 (Exhibit 10).
Water quality data from the United States Geological Survey and
the SFWMD indicate that the S-5A, S-6, S-7 and S-8 pump
stations contribute 76 percent of the surface water phosphorus load
(excluding rainfall) and 46 percent of the total phosphorus load
(including rainfall, which contributes 39 percent) entering the
WCAs. 25
Id.
at II-49, Table 2-11. Pump station S-5 A, which
28
discharges directly into the Refuge, contributes approximately 74
metric tons of phosphorus, or 17 percent of the total WCA
phosphorus load, and is the second largest surface water source
of phosphorus loading to the WCA system. Id. at II-49, Table 2-
11.
The District's operation of the regional water
management system affects aquatic communities in several ways.
For example, WCA-2A wetlands receive a particularly large supply
of nutrients through the S-10 inflow structures, which transport
drainage from the Refuge, because of the large canal system which
converges on these structures and because of their proximity to
the EAA. SFWMD Technical Publication 83-4, at 1 (Exhibit 34).
See Map (Exhibit 21). The absence of interior canals in WCA-2A
forces this water to flow across the marsh, where nutrients
accumulate in the marsh through incorporation by marsh soils and
vegetation, eventually saturating the system and moving farther
and farther downstream. SFWMD Technical Publication 83-4, at 1
(Exhibit 34); Jones Decl., at ¶ 14 (Attachment
A). By contrast,
some of the nutrient-enriched water entering the WCAs never flows
29
through the marsh. Instead, the District can and does operate
the system so as to rapidly shunt poor quality, nutrient-enriched
waters from the EAA through canals to remote sites, including the
Park, 26
without the
phosphorus removal that would occur if the
water flowed through the WCA marshes. First Draft SWIM Plan,
Vol. III, at B-259 (Exhibit 8); Statement Paper: An Assessment,
at 2 (Exhibit 23).
ii. The District's interim Action Plan
Has
Increased Environmental Damage By
Exacerbating Nutrient Loading to the
WCAs
The District originally utilized Lake Okeechobee to the
north of the EAA as a flood storage area to handle excess water
pumped off EAA farm lands. First Draft SWIM Plan, Vol. III, at
B-63 (Exhibit 8). Thus, during the 1960's and 1970's,
considerable amounts of nutrient-enriched EAA water were pumped
north into Lake Okeechobee rather than south and east to
Loxahatchee, the WCAs, and the Park. Id.
The District in 1979 implemented a plan to reduce the
pumping of EAA runoff to Lake Okeechobee. Under the Interim
Action Plan ("IAP"), which the District ultimately approved in
1980, the District reversed its former practice of backpumping to
Lake Okeechobee and now pumps 95 percent of the EAA runoff into
the WCAs. Option, Interim Action Plan, at 1 (Nov. 16, 1987)
(Exhibit 36). Although concerns over the ecological health of
30
the lake were legitimate, the District unilaterally decided under
the IAP to divert nutrient-polluted water to the WCAs, the Refuge
and the Park without ensuring that the rerouted water would have
no adverse impact on the water quality in those downstream areas.
The WCAs receive an additional loading of approximately 50 tons
(45.4 metric tons) of phosphorus per year under the IAP. First
Draft SWIM Plan, Vol. II, at 31 (Exhibit 6); Nutrient Removal
Management Plan, at 22 (Exhibit 22). The District's action has
increased the level of impacts that EAA drainage has on native
Everglades water quality, plant communities and wildlife habitat,
contributing to the rapid and noxious spread of cattail and other
pollutant-tolerant species and loss of native Everglades habitat
in the WCAs. 27
31
Despite this increase in nutrient loading in the WCAs,
the District, in the 1989 Lake Okeechobee SWIM plan, elected to
continue the IAP without addressing the acceleration of
degradation of the Everglades. First Draft SWIM Plan, Vol. II,
at 7 (Exhibit 6); Second Draft SWIM Plan, Vol. II, at 7 (Exhibit
10). Thus, the IAP continues to exacerbate nutrient-related
water quality problems in the Everglades. 28
Id.
iii. The Refuge Receives Excessive Nutrient
Loads from the District's Pump Stations
The Refuge comprises the northernmost WCA in the
modified Everglades wetlands system, and is one of the first
receivers of nutrient-polluted water that the District pumps out
of the EAA. The Refuge is made up of a relatively shallow marsh
encircled by a 56-mile levee and canal system. 29 First Draft
SWIM Plan, Vol. III, at B-78 (Exhibit 8); SFWMD Technical
Memorandum, at 4 (Exhibit 24). Two of the District's primary
pump stations draining the EAA, pump stations S-5A and S-6,
32
contribute the majority of the surface water to the Refuge.
30
SFWMD Technical Memorandum, at 5 (Exhibit 24).
Because pump stations S-5A and S-6 move water directly
from the feeder canals in the EAA into the Refuge, the nutrients
absorbed by the water in the EAA are pumped directly onto the
Refuge. First Draft SWIM Plan, Vol. III, at B-78 (Exhibit 8).
These nutrient-rich agricultural waters result in both high
average total phosphorus concentrations in Refuge inflows and
intermittent peaks of phosphorus far above the average.
31 SFWMD
Technical Memorandum, at 60 (Exhibit 24). The average flow-
weighted total phosphorus concentrations of the discharges from
pump stations S-5A and S-6 from 1979 to 1988 were 0.190 mg/l and
0.119 mg/l respectively - 10 to 20 times higher than the total
phosphorus concentration in pristine Everglades marsh. Id. at B-
133.
33
During periods of low stage levels in the Refuge, water
pumped into the Refuge will, in general, flow south along the
perimeter canal and avoid the higher ground at the center of the
Refuge. SFWMD Technical Memorandum, at 4-5 (Exhibit 24). Under
these conditions the water quality at the center of the area is
relatively unpolluted by EAA drainage waters. First Draft SWIM
Plan, Vol. II, at 62 (Exhibit 6). However, as the stage levels
increase, the amount of penetration of EAA drainage waters into
the Refuge interior also increases, resulting in an increased
adverse effect on the entire Refuge. SFWMD Technical Memorandum,
at 4-5 (Exhibit 24).
Under the District's IAP, the quantity of nitrogen and
phosphorous entering the Refuge from the EAA has increased
dramatically. Thus, the Refuge has the highest average nitrogen,
phosphorus, color, and turbidity concentrations of the three
WCAs. SFWMD Study, at 17 (Exhibit 35). The Refuge also receives
the highest inflow total nitrogen and total phosphorous
concentrations and has the highest average interior
concentrations of total phosphorus and total nitrogen. Id.
iv. Nutrient-Polluted Water Moves Southward
Through the WCAs to the Park
The District also delivers nutrient-polluted water to
the Park. On average, approximately 11 metric tons of phosphorus
(2.6 percent of the phosphorus load introduced into the WCAs)
were discharged annually into the Park from 1978 to 1988. First
Draft SWIM Plan, Vol. III, at B-134 (Exhibit 8). A portion of
the Park inflows at the S-12 structures is high-nutrient canal
34
water from the Miami Canal and L-67A, which carries water from
the EAA to the Park without the benefit of overland sheet flow in
the WCA marshes. Statement Paper: An Assessment, at 2 (Exhibit
23). Since 1979, the phosphorus concentration of Park inflows
has increased 4 percent annually at S-12 structures, which
discharge to Shark River Slough, and 21 percent annually at the
S-332 structure, which discharges to Taylor Slough. Declaration
of Dr. William W. Walker, at ¶ 15 (Sept. 17, 1990) [hereinafter
Walker Decl.] (Attachment C).
b. District Nutrient Pollution Has Damaged the
Everglades, Including the Park and Refuge
The elevated nutrient loadings in agricultural drainage
which the District sends southward to the Everglades have created
imbalances in the plant and animal life in the Everglades and
threaten ongoing degradation of the biological integrity of the
Refuge, the Park, and the WCAs. First Draft SWIM Plan, Vol. III,
at A-16 (Exhibit 7). The District admits that at total
phosphorus concentrations above 0.030 mg/l, significant changes
have occurred that impact the structure and function of the
Everglades ecosystem. Id. Additional evidence demonstrates that
significant ecological changes are triggered at total phosphorus
concentrations well below 0.030 mg/1. 32
Memorandum from D.
35
Swift, Research Environmentalist, to W. Dineen, Director
Environmental Sciences (Dec. 28, 1987) (Exhibit 38). Park and
Refuge inflows have exceeded 0.030 mg/l total phosphorus on
numerous occasions. Elevated nutrient concentrations in vast
portions of the Refuge and other areas in the northern Everglades
WCAs have visibly altered and degraded native plant communities
and marsh ecosystem structure and function. 33 The precursors of
36
these changes are already apparent in the Park, and will
inevitably give way to further, more visible and far-reaching
damage if existing nutrient concentration trends in Park inflows
are allowed to continue. 34
These adverse changes constitute
water quality violations for which the District and DER are
responsible.
i. Nutrient Pollution Causes Imbalances at
Every Level of the Everglades Ecosystem
The vegetative changes which occur in areas of
increased nutrient loading are most noticeable in the replacement
of native sawgrass and wet prairie communities by cattail-
dominated communities. 35
P. Gleason et al., The Impact of
Agricultural Runoff on the Everglades Marsh Located in the
Conservation Areas of the Central and Southern Florida Flood
Control District, at 1 (1975) [hereinafter The Impact of
Agricultural Runoff] (Exhibit 42). However, while cattail
expansion into sawgrass communities is the most often cited and
obvious physical result of. nutrient enrichment in the Everglades,
cattail expansion in fact represents only the final stage of a
series of ecological impacts that result from degraded water
37
quality within the marsh. 36
Draft Memorandum from P. B. Rhoads,
Director Resource Planning (Aug. 23, 1989) (Exhibit 43). Before
healthy sawgrass or wet prairie communities are displaced by
cattail, a number of dramatic and adverse changes have taken
place affecting the soil, the microbiology and lower forms of
vegetation of the ecosystem. First Draft SWIM Plan, Vol. III, at
A-12 (Exhibit 7); Draft Memorandum from P. Rhoads to J. Garner,
Chairman, Governing Board at 2 (July 24, 1989) (Exhibit 4); Jones
Decl., at ¶ 4 (Attachment A). Once extensive cattail stands have
overtaken the marsh, the value of the marsh to native wildlife is
38
virtually destroyed. In other words, the adverse impacts of
nutrient pollution on the Everglades are ecologically systemic,
affecting most if not all components of the Everglades community.
First Draft SWIM Plan, Vol. II, at 61 (Exhibit 6). The impacts
described below are the inevitable consequences of nutrient-
enriched inflows throughout the Everglades, including the Park
and the Refuge.
a) Phosphorous Loading of the Soil
Column is One of the First
Nutrient-Related Impacts on the
Everglades Ecosystem
One of the earliest observed impacts of nutrient-
enriched water on the Everglades ecosystem is phosphorus loading
of the peat soil in the marsh. 37
Measurements of total
phosphorus levels in Everglades peat, coupled with field
observations, show that elevated concentrations of total
phosphorus in Everglades peat soils are a precursor to cattail
invasion and other ecosystem impacts. Jones Decl., at ¶ ¶ 2, 17
(Attachment A). Once Everglades soils are loaded with excess
phosphorus, nuisance species such as cattails which thrive on
excess phosphorus are able to invade the marsh. Id.
39
Additionally, because of the slowness with which Everglades soil
rids itself of phosphorus, soil loaded with excess phosphorus can
take hundreds of years to return to background levels. Id. at ¶
15. Thus, in practical terms, elevated levels of phosphorus in
Everglades soils represent an irreversible adverse impact on the
ecosystem. 38
As documented
below, both the Park and the Refuge
suffer from substantial excess phosphorus loading in their peat
soils.
b) Adverse Impacts of Nutrients on
Microbial Populations Are Another
Early Indicator of Ecosystem
Disruption
Within the water column, increased nutrient loading
first affects microbial populations of bacteria and fungi that
are responsible for nutrient cycling and the decomposition of
organic matter, such as leaf litter. In comparison to normal
background sites in the marsh, oxygen-depleted conditions in the
water at nutrient-enriched sites in the Everglades have resulted
in a shift in the composition of these microbial communities.
First Draft SWIM Plan, Vol. III, at B-114 (Exhibit 8).
Microorganisms that grow in the presence of oxygen are suppressed
at nutrient-enriched sites. Id. at B-114. In addition, the
density of bacteria and fungi suspended in the water column
increases at the elevated nutrient concentrations that exist in
vast areas in the Everglades. Second Draft SWIM Plan, Vol. III,
at A-4 (Exhibit 11). Adverse ramifications of this shift on
40
Everglades food chains are significant since food chains relating
to the decomposition of plant material play a major role in
wetland ecosystems. First Draft SWIM Plan, Vol. III, at B-114
(Exhibit 8).
Because of their important role in the cycling of
phosphorus in the marsh ecosystem, bacteria are the first group
of organisms to exhibit measurable effects of perturbations in
phosphorus concentrations in the water. Jones Decl., at ¶ 5
(Attachment A) . The effect of these perturbations on bacteria
can be monitored by measuring the activity in the water of the
enzyme alkaline phosphatase (AP). 39
Id. at ¶ 6. Specifically,
these microorganisms excrete less AP as the total phosphorus
concentration in the water increases. Id. Thus, AP is extremely
valuable as a sensitive and early indicator of ecosystem changes
caused by excess phosphorus in the Everglades ecosystem. Id. at
¶ 7. A decrease in AP activity indicates that excess phosphorus
is adversely affecting the natural cycling of phosphorus in the
ecosystem. Id.
c) Nutrients Also Adversely Impact the
Periphyton Community
Submerged and floating mats of predominantly blue-
green algae, commonly referred to as periphyton, are a
41
conspicuous feature of the Everglades ecosystem. SFWMD Technical
Publication 81-5, Preliminary Investigation of Periphyton and
Water Quality Relationships in the Everglades Water Conservation
Areas, at ix (December 1981) [hereinafter SFWMD Technical
Publication 81-5] (Exhibit 44). Periphyton is the community of
microorganisms (primarily algae) that live attached to the
surfaces of stems and leaves of aquatic plants and other
submerged surfaces. Id. The periphyton community converts
carbon dioxide, water and other nutrients into organic plant
material which is foraged upon by a wide variety of Everglades
invertebrates and juvenile fishes. Id. Thus, periphyton
represents an important primary food source in the Everglades
food chain. Id. In addition, periphyton photosynthesis and
metabolism greatly influence dissolved oxygen concentrations in
the marsh. Id. In some portions of the Everglades, periphyton
biomass exceeds the biomass of nearby macrophyte communities.
Id.
Nutrients, particularly phosphorus, 40
have had and
continue to have a significant adverse impact on the structure
and function of the periphyton community in the Everglades.
First Draft SWIM Plan, Vol. III, at A-13 (Exhibit 7). The
general response of these microorganisms to phosphorus enrichment
is an immediate increase in the population density of a few
pollution-tolerant forms, a reduction or elimination of
42
pollution-sensitive species, a reduction in the numbers and types
of species present, and an overall increase in the algal standing
crop. 41
Id. In the
Everglades, native periphyton communities
are extremely sensitive to even low levels of phosphorus added to
the environment. Id. Shifts from native periphyton species to
pollution-tolerant forms have been observed in Everglades marshes
at total phosphorus concentrations of 0.030 mg/l. Id.
Reduction of periphyton species diversity as a result
of nutrient enrichment ultimately has reduced Everglades
ecosystem stability by reducing the number of food item choices
available to grazing invertebrates. SFWMD Technical Publication
87-2, Periphyton and Water Quality Relationships in the
Everglades Water Conservation Areas 1978-1982, at 39 (1987)
(Exhibit 45). Aquatic ecosystems containing high species
diversity contain more complex food webs or food chains and are
more stable ecosystems in comparison to simpler, less diverse
communities. Id. In fact, the District has acknowledged that
there are fewer types and numbers of fish and larger aquatic
animals in nutrient-enriched cattail-dominated areas in which
periphyton also is adversely affected. SFWMD Board Meeting Staff
Briefing Overheads, at 33 (May 6, 1989) (hereinafter SFWMD Board
Meeting Overheads) (Exhibit 46). The reduction in algal species
43
and the other nutrient-related impacts on periphyton consequently
represent a significant imbalance in the native ecosystem.
d) Nutrients Cause a Detrimental
Lowering of Dissolved oxygen
The dissolved oxygen budget is one of the most
important factors in determining the environmental quality of an
aquatic system, since both animal and plant life are dependent
upon aerobic metabolism in one way or another. DER Report,
Water Quality Data Assessment of South Florida Water Conservation
Areas, at 10 (1987) (hereinafter DER Water Quality Assessment]
(Exhibit 47). Nutrient enrichment reduces oxygen-producing
periphyton and increases oxygen-consuming flora, thereby reducing
the level of dissolved oxygen (D.O.) in the water column of marsh
surface waters. First Draft SWIM Plan, Vol. III, at A-14
(Exhibit 7). Loss of D.O. in the water undermines the entire
ecosystem by suffocating the aquatic organisms at the bottom of
the food web. 42
Id.
at A-14. Few native species of Everglades
fauna are adapted to survive and breed in long-term oxygen-
deprived conditions. Id. at A-14. Depletion of D.O. in the
Refuge and other Everglades marshes is well-documented
44
e) Nutrient Pollution Causes
Imbalances in Everglades Macrophyte
Communities
Sawgrass is an important and abundant larger plant in
the Everglades ecosystem. It represents by far the most
widespread plant community in the Everglades, covering 65 to 70
percent of the Everglades marsh. Sawgrass and Cattail Nutrient
Flux, at 4 (Exhibit 25). Sawgrass has low nutrient requirements,
as evidenced by low phosphorus and nitrogen concentrations in
sawgrass tissue as compared to those in other Everglades
macrophytes. Id. at 4-5. Low nutrient requirements partially
explain the dominance of sawgrass in a rainfall-fed system with
little available phosphorus and nitrogen. Id. at ii.
Cattails are another naturally occurring Everglades
macrophyte, but they appear naturally in small isolated pockets
rather than large nearly monotypic expanses. 43 As nutrient
45
concentrations in the marsh increase, shoot production and
decomposition proceeds much more rapidly in cattail than in
sawgrass. SFWMD Board Meeting Overheads, at 42 (Exhibit 46).
Thus, at elevated nutrient concentrations, cattails have a
competitive advantage over sawgrass. Id. Expansion of the
nutrient enriched area of WCA-2A from 6,000 to 20,0000 acres from
1978 to 1986 corresponds with the observed area of expansion of
cattail into sawgrass. Id. at 41. Thus, the District staff
itself is convinced that nutrient discharges are the primary
cause of cattail expansion in the Everglades. Draft Memorandum
from P. Rhoads, Director, Resource Planning Department, to J.
Garner, Chairman, Governing Board, at 1-2 (July 24, 1989)
(Exhibit 4). The displacement of sawgrass by cattail represents
46
a severe, long-term imbalance in the native ecosystem.
44 There
is no evidence that this imbalance is reversible.
f) The Altered Ecosystem Does Not
Support indigenous Wildlife
Communities
The Everglades ecosystem changes induced by nutrient-
enriched surface water inflows cause imbalances in native
wildlife.45 South Florida
Water Management District Action Plan
to Protect Lake Okeechobee and the Everglades, at 1 (Aug. 30,
1988) (Exhibit 49). Characteristic native Everglades fish, birds
and other wildlife are unable to use large cattail stands. For
example, cattail stands are inadequate nesting and feeding
grounds for numerous species. First Draft SWIM Plan, Vol. III,
at B-92 (Exhibit 8). Because wading birds such as the egret and
wood stork (an endangered species) require shallow open water to
47
feed, they cannot and do not utilize areas dominated by cattail.
Maffei Decl., at ¶ 21 (Attachment B). Moreover, landing, and
movement in general, is extremely difficult in cattails for these
species. Id. For birds that feed by sight, poor visibility in
dense cattail stands makes it difficult or impossible to find
prey. Id. at ¶ 22. In addition, water under the dense cattail
mats which are formed by decomposing cattails is lacking in
dissolved oxygen and unable to support native aquatic organisms.
Id. ¶ 23; SFWMD Board Meeting Overheads, at 38 (Exhibit 46).
Thus, areas which have converted to cattail offer poor food
resources.
Obviously, large cattail stands also reduce the areal
extent of the many different intermixed habitats and the natural
structural diversity of the natural Everglades which are
essential to the native fauna. Maffei Decl., at ¶ 20 (Attachment
B).
Many species require several of the varied Everglades
habitat types in order to engage in normal breeding, feeding and
sheltering habits. Id. at 11. Some species will utilize
relatively dry areas such as tree islands for nesting but require
access to open wet prairies for feeding. Id. at ¶ ¶ 12-13. Thus,
preservation of habitat diversity is essential to preserving the
natural balance of the total marsh ecosystem. Research by
District staff scientists shows that in comparison to pristine
Everglades wet prairie and aquatic slough habitats, nutrient-
enriched areas of the marsh experienced reduced species diversity
and diminished richness of aquatic macrofauna. D. Swift,
48
Abstract: Effects of Nutrients on the Structure and Function of
Everglades Periphyton Communities, at 9 (1987) (Exhibit 50).
ii. Nutrient-Polluted Agricultural Drainage
Has caused Damage in the Park and Refuge
The nutrient-polluted water which the District sends
south from the EAA already has caused extensive biological
alterations in the WCAs. First Draft SWIM Plan, Vol. II, at 30
(Exhibit 6). These impacts were exacerbated after implementation
of the IAP. F. Davis, Draft Evaluation, Option: IAP, at 2 (June
30, 1986) (Exhibit 51). 46
In addition to widespread damage in
the Refuge, District scientists have documented extensive change
from sawgrass to cattails in WCA-2A. First Draft SWIM Plan, Vol.
II, a t 30 (Exhibit 6). Since 1979, the nutrient-enriched area of
WCA-2A increased from 6,000 to 20,000 acres. 47 at 30; Action
Plan to Protect Lake Okeechobee and the Everglades, at 1 (Aug.
49
30, 1988) (Exhibit 49). WCA-3A also has been adversely affected
by agricultural runoff. Vegetation impacts similar to those that
have been described for the Refuge and WCA-2A have occurred in
portions of WCA-3A near the S-11 structures, along the Miami
canal, and in proximity to other water delivery structures.
First Draft SWIM Plan, Vol. II, at 30 (Exhibit 6). See Map
(Exhibit 21). The Park has already experienced the early stages
of nutrient-related deterioration, and is threatened with ongoing
destruction if existing trends continue. First Draft SWIM Plan,
Vol. II, at 30 (Exhibit 6). The serious damage to the Refuge and
Park resulting from nutrient pollution is described in the
following sections.
a) Nutrient-Enriched Discharges From
the District's Pumps Have Caused
Harm to the Native Flora and Fauna
of the Refuge
The degraded quality of surface water that the District
pumps into the Refuge from the EAA has decimated the historic and
essential vegetative diversity of vast portions of the Refuge.
48
First Draft SWIM Plan, Vol. III, at B-88 (Exhibit 8). In 1960,
the Refuge was free from cattail stands resulting from nutrient-
enriched inflows. Id. By contrast, current satellite and other
data indicate that by 1987, cattail had replaced the delicate
50
native plant communities in 6,000 acres in the Refuge, creating a
thirteen-mile long swath which in some places in the Refuge is as
wide as a mile. Id.; First Draft SWIM Plan, Vol. II, at 30
(Exhibit 6); Maffei Decl., at ¶ 20 (Attachment
B). Indeed,
increased nutrient loading is placing the south end of the refuge
in jeopardy of being entirely converted to cattail. First Draft
SWIM Plan, Vol. III, at B-88; Maffei Decl., at ¶ 20 (Attachment
B).
As much as 24,000 acres, or 17 percent of the total
area of the Refuge, are estimated already to have suffered damage
from nutrient pollution. 49
Maffei Decl., at ¶ 24 (Attachment B);
see also First Draft SWIM Plan, Vol. III, at B-88 thru 91
(Exhibit 8). For example, the phosphorus level in the peat soils
in the Refuge is almost four times higher in areas near the
perimeter canal, which contain relatively high phosphorus
concentrations, than it is in the interior of the Refuge. Jones
Decl., at ¶ 11 (Attachment A). From peat loading to cattail
expansion, these changes are destroying the natural biological
diversity of the marsh and severely reducing the value of the
Refuge as habitat for its spectacular bird and wildlife
51
populations. 50
See Maffei
Decl., at ¶ ¶ 19, 21, 22, and 23
(Attachment B).
The defendants are well aware of these adverse impacts.
A 1987 DER Interoffice Memorandum states:
S-5 and S-6 discharge into Water Conservation
Area 1, which is also the Loxahatchee
National Wildlife Refuge. The water is high
in nitrogen, phosphorus and specific
conductance. SFWMD and U.S. Fish and
Wildlife Service studies has [sic] documented
major invasions of cattails in the areas
adjacent to the perimeter canal of the Refuge
due to excessive nutrients and shifts in
periphyton communities because of the higher
specific conductance of the EAA water. SFWMD
estimates that 57,000 acres of the 141,000
acres in the Refuge have been adversely
affected by these discharges.
Interoffice Memorandum from B. Hinkley to P. McVety, at 4 (Feb.
17, 1987) (Exhibit 40).
In addition, the DER has determined explicitly that
water quality violations have occurred as a result of
agricultural discharges into the WCAs, including the Refuge.
51
First Draft SWIM Plan, Vol.. III, at B-123-125 (Exhibit 8).
According to the defendants, violations of state water quality
standards occur particularly in the perimeter canals of the
52
Refuge, and are especially bad during dry periods when water is
confined to the canals. First Draft SWIM Plan, Vol. II, at 34
(Exhibit 6). Specifically, the DER, using SFWMD data, determined
that two water quality standards were not met at nutrient-
enriched sites in the Refuge: 1) Imbalance in Natural
Populations of Flora or Fauna, and 2) Biological Integrity. Fla.
Admin. Code §§ 17-3.121(7), and (19) (1990). 52 First Draft SWIM
Plan, Vol. III, at B-97 (Exhibit 8). In addition, in 1987, DER
documented violations of the state water quality standard for
dissolved oxygen in the perimeter canals and interior marsh in
the Refuge. Id. at B-125. Nutrient concentrations cause water
quality in the Refuge to continue to decline. Trend analysis of
the Refuge rim canal data revealed worsening water quality
conditions during the 1970-1987 time period. DER Water Quality
Report, at 2 (Exhibit 47). Indeed, DER has proclaimed that a
long-term annual trend of degrading water quality in the Refuge
is obvious for D.O., total nitrogen and total phosphorus. Id. at
10.
b) Nutrient-Enriched Inflows Have
Already Caused Harm to the Park
As shown above, water containing elevated concentrations
of phosphorus, nitrogen and other pollutants presently enters the
Park through the S-12, S-332 and S-18C structures. Statement
53
Paper: An Assessment, at 2 (Exhibit 23); Walker Decl., at ¶ ¶ 8,
15, 16, 17, 21 (Attachment C). See Map
(Exhibit 21). The supply
of nutrients to the Park has increased significantly since the
Park was authorized in 1934, primarily as a result of drainage of
EAA runoff. Walker Decl., at ¶ ¶ 8, 15, 16, 17, 21 (Attachment
C).
Indeed, a steady annual increase of from 4 percent to 21
percent has been observed in Park inflow phosphorus
concentrations since 1979. Id. In addition, the frequency
with which total phosphorus concentrations of inflows at the S-12
structures exceeded 0.030 mg/l increased from 6 percent of the
time from 1977 to 1982 to 15 percent of the time from 1984 to
1989. Id. at ¶ 17.
The steady increase in phosphorus concentrations in
Park inflows is only one measure of the degradation that the Park
is currently suffering. Spikes of water with phosphorus
concentrations as high as 0.20 mg/l have caused irreversible
loading of phosphorus in the peat soils and harmed aquatic
organisms in the Park. Walker Decl., Attachment 1, Fig. 4, at 15
(Attachment C); Jones Decl., at ¶ 15
(Attachment A). Near the
S-12 Park inflow structures, the peat contains phosphorus levels
five to ten times higher than the peat phosphorus levels in
pristine areas in the Park, and phosphatase (AP) activity
53 is
depressed to about one fifth of AP activity measured at
background sites. Id. at ¶ ¶ 9, 18. These disturbed peat soils
correspond to an area in which abnormal vegetative growth
54
abounds, a correlation that also exists in the north of WCA-2A
where one of the largest cattail-dominated marshes in the
Everglades presently exists. Id. at ¶ ¶ 2, 13, 16, 17. Moreover,
excess phosphorus levels in the peat and depressed AP activity in
the water column have already penetrated at least 6 kilometers
into the Park in Shark River Slough. Id. at ¶ ¶ 9, 18.
As experience in the Refuge and WCA-2A demonstrates,
elevated phosphorus levels in the peat in the Park set the stage
for proliferation and dominance of nuisance species, including
cattails, in the Park. Id. at ¶ 17. Currently, areas of
vegetation in the Park that have been affected by increased
nutrients exist in the northern portion of the Park, south of the
S-12 structures and along the L-67 extension canal, where stands
of cattail occur. Statement Paper: An Assessment, at 4 (Exhibit 23);
Jones Decl., at ¶ 16 (Attachment A). Because the spread of
cattails is one of the last ecosystem impacts caused by excess
nutrients, it follows that the full range of ecosystem impacts
described in the preceding sections also exist in the northern
end of the Park. Further degradation in the quality of water
delivered to the Park will only exacerbate harm to its fragile
ecosystem. 54
55
c) Further Environmental Damage to the
Park Is Inevitable if Present
Trends Continue
The preceding sections demonstrate that the District is
sending nutrient-polluted water to the Park and Refuge. The
Refuge and the WCAs have suffered tremendous damage, the
precursors of which already exist in the Park. Degradation of
water quality within the WCAs has the potential to continue to
affect, with increasing magnitude, the quality of water delivered
to the Park.
If nutrients continue to be added to the water in
sufficient quantities to cause cattail and other nutrient-
tolerant species to replace sawgrass marsh and wet prairies
upstream of the Park, these adverse changes inevitably will
increase in the Park. Jones Decl., at ¶ 14 (Attachment
A). As
the steady supply of nutrients from the EAA is maintained,
cattails will continue to expand and replace native sawgrass and
wet prairie communities. This is because areas where cattails
have replaced sawgrass and we t prairie communities become
saturated with nutrients. 55
Id. After the nutrients cause the
56
conversion to cattails in upstream areas such as WCA-2A, WCA-3A
and WCA-3B, they pass through that area into formerly pristine
habitat and impact additional acreage in the marsh, eventually
converting more native marsh communities to cattails. Thus,
nutrient-induced impacts, such as the conversion of Everglades
marsh to cattails, are leap-frogging from the source of the
nutrients south toward the Park. 56
Id.
The only known way to limit the further spread of
cattails and the deleterious ecosystem changes that precede
cattail invasion is to reduce significantly the amount of
nutrients that are discharged into the WCAs from EAA surface
water drainage. Nonetheless, the defendants have allowed
excessive nutrient loads to strain the Everglades for decades,
and despite clear and growing substantiation of this water
quality crisis, in large measure by their own staff, they
continue to do so.
57
D. The Defendants Have Failed to Halt Environmental
Damage
to the Everglades
1. SFWMD Has substantial Discretion to Manage Water
in South Florida and to Comply With State Water Quality Laws
Until devastating hurricanes of 1926 and 1928 resulted
in large losses of life and property, there was no federal
involvement in ongoing state, local and private drainage projects
in south Florida. These state and private projects involved
construction of canals, dikes and levees to drain large portions
of the approximately 20 million acres of wetlands that existed in
lower Florida. The Central and Southern Florida Project for
Flood Control and Other Purposes (OC&SFPO) originated with state
requests for federal assistance. Congress directed the Corps of
Engineers to respond to the 1926 and 1928 hurricanes, which
proved the existing state and private projects inadequate. In
March 1930, the Corps submitted to Congress an initial plan for
remedying the flooding problems and for navigational improvements
by building additional levees and navigational canals in the
affected area. The authorized works were essentially completed
by the early 1940s.
By 1947, droughts, hurricanes, fires and the threat of
salt water intrusion made it apparent that simply draining areas
and building levees was not an adequate solution to the water
problems of central and south Florida. The Corps, pursuant to
Congressional and local agency requests, concluded in a May 6,
1948, report to Congress that one comprehensive plan was needed
to cover all phases of water management in the entire central and
58
south Florida area. Comprehensive Report on Central and Southern
Florida for Flood Control and Other Purposes, House Document No.
643, 80th Cong., 2d Sess. (May 6, 1948) [hereinafter House
Document No. 643] (Exhibit
26). Congress defined the purposes of
what became known as the C&SFP (encompassing previous private,
local and State projects) as flood protection, water
conservation, prevention of salt water intrusion, major drainage,
navigation and preservation of fish and wildlife resources.
57
See id. at 2. In addition, the plan for the project recognized
that preservation of Everglades National Park was consistent with
the project. 58
59
The first phase of the comprehensive plan was
authorized as part of the Flood Control Act of June 30, 1948. It
consisted of the canals, locks, reservoirs, spillways and other
improvements necessary to afford flood protection to the
agricultural areas south of Lake Okeechobee and the highly
developed urban area along the lower east coast of Florida. The
cost of the project was shared with the State of Florida.
The rest of the comprehensive plan was authorized by
the Flood Control Act of September 3, 1954, and the project was
modified in 1958, 1962, 1965, 1968 and 1970. The 1968 Flood
Control Act provided inter alia for the raising of Lake
Okeechobee levees; the recovery of excess water from the lower
east coast for later use by backpumping into Lake Okeechobee and
the Water Conservation areas; and the improvement of water
distribution. The House document recommending the modifications
explicitly noted that preservation of Everglades National Park is
a project purpose, stating:
The need for water and related land-resource
development in the study area are dependent
upon the economic activity in which the
population is engaged and the restoration and
preservation of Everglades National Park.
60
Water Resources for Central and Southern Florida, House Document
No. 369, 90th Cong., 2d Sess. at 31 (July 30, 1968) (emphasis
added) [hereinafter House Document No. 369] (Exhibit
27). 59
Subsequent legislation required a guarantee that not less than
315,000 acre-feet of water be delivered annually from the C&SFP
to Everglades National Park. River Basin Monetary Authorization
and Miscellaneous Civil Works Amendments Act of 1970, Pub. L. No.
91-282, § 2, 84 Stat. 310.
The regulation schedules, which generally set the outer
parameters of water management in the C&SFP, are established by
the Corps after consultation with the District. Final approval
of the regulation schedules rests with the Corps. However,
management of water levels in the project within the ranges set
by the regulation schedules is subject to the discretion of the
SFWMD:
Corps of Engineers has not prescribed
regulations which restrict the District's
ability to make discharges or convey water
for purposes other than flood protection,
when water levels are beneath the regulation
61
schedule discharge criteria. Thus, no direct
conflict with federal law would be created by
a state law which prescribes conditions on
"non regulatory" discharges which might be
made by the District.
Memorandum from S. Niego, Litigation Attorney, to S. Walker,
District Counsel, at 7 (Aug. 5, 1987) (Exhibit 29). See also
Memorandum from J. Rader to S. Walker, District Counsel, and I.
Quincy (July 29, 1986) (Exhibit 30).
Congress has never altered the project purposes from
the first congressional authorization in 1948, although it has
since made more explicit the need to heed water quality concerns
and to protect and preserve native Everglades ecology. At no
point in this litigation have the defendants demonstrated that
adherence to regulation schedules or other federal laws or
regulations concerning the C&SFP prevents them from complying
with and enforcing Florida state water quality standards and
other state water quality laws.
2. The District and DER Have Known About Impacts of
Nutrient-Polluted Drainage on Everglades
Ecosystems for at Least Fifteen Years Without
Taking Corrective Action
The defendants' history of inaction on nutrient
pollution of the Everglades, despite at least fifteen years of
ecosystem studies and consideration of regulatory and
technological strategies directed at the problem, is
distressing. 60
District
staff had observed sure signs of
62
nutrient-related degradation of the Everglades marsh by 1971, and
had recommended remedial measures, still not implemented today,
as early as 1975. Nonetheless, nutrient pollution in the
Everglades has worsened since the mid 1970s. The United States
therefore views skeptically the defendants' representations that
they are now ready to tackle this urgent problem.
In a 1971 memorandum, the Chief of Environmental
Services at the District's predecessor observed:
[D]ata . . . indicates [sic] that vegetation
can remove considerable amounts of "waste"
nutrients. I do fear, though, that
Everglades marshes can quickly become over-
enriched. We cannot depend upon the marshes
of the Glades to handle our excess nutrient
problems because at this time we are unaware
of "how much is too much." My observations
in the marsh of [WCA-2] indicates [sic] that
excessive nutrients may be manifested in
dense growths of periphyton seen in recent
years. . . . Lush growths of bladderwort
(Utricularia) appear throughout the slough
systems in [WCA-2] and immediately are coated
with periphyton, adding to the organic debris
when it sinks. . . . Detritus deposits of up
to 14 inches in depth are causing the
rootstocks of the white water lily to
actually "let go" of the bottom and float to
the surface. These are indications of
degradation of the marsh environment.
Memorandum from J.W. Dineen to D. Morgan (June 16, 1971)
(emphasis added) (Exhibit 57). 61
By 1972, the District staff was
63
aware of "pretty good evidence that the north end of [WCA-2] is
receiving a high loading of nutrients" and that an "apparent
front of high nutrient containing vegetation" was moving south in
WCA-2. Letter from K. Steward to W. Dineen (Nov. 14, 1972)
(Exhibit 58). The District noted as early as 1975 that "changes
in water chemistry due to the influence of agricultural runoff
probably cause significant changes in algal flora [in the
Refuge]." P. Gleason et al., Preliminary Report on the Effect of
Agricultural Runoff on the Periphytic Algae of Conservation Area,
at 2 (1975) (Exhibit 60).
District staff by 1973 was formulating policy options
for dealing with pollution of the WCAs:
Conservation Area 2 is currently in
environmental difficulty. . . . [N]ew data
are continually arising which indicate that
CA-2A is actually becoming polluted. The
high phosphorus in the sawgrass, the high
chloride levels in the water, the species
composition of periphyton in CA-2A, are all
good indications of pollution in the
Conservation Areas by backpumped water. . . .
Much more thought and discussion needs to be
put into permitting private drainage
districts to backpump to the Conservation
Areas. . . . If we are to develop water
quality standards for waters discharged into
[District] waterways then we had better get
at it. If someone else is to do it, then
they had better get at it.
64
Memorandum from W. Dineen to B. Storch (April 10, 1973) (emphasis
added) (Exhibit 61). Following through on the recommendation to
permit drainage districts, District staff recommended
unsuccessfully that a 1975 surface water management permit for a
sugar grower be conditioned on both implementation of a water
quality monitoring program and a construction of a retention or
impoundment area to clean nutrient-laden drainage.
These recommendations pertaining to the
retention area are based upon the staff's
opinions . . . that the work proposed under
the subject application will result in a
higher concentration of nitrogen and
phosphorus in the discharge water and an
increase in nitrogen to C-51. This is
because higher concentrations of nitrogen (N)
are found in water drained from sugar cane
producing muckland. It was found by the
staff that discharge resulting from the
proposal would degrade water quality in C-51
and will , if this basin is ever backpumped to
the conservation areas, increase the loading
of nutrients to the Everglades region.
In re Application No. 23660 by Sucrose Growers & Roger Hatton for
Water Use, Surface Water Management and Right of Way Occupancy,
Case No. 75-1636, at 2-3 (Fla. Div. Admin. Hearings, Oct. 20,
1975) [hereinafter In re Application No. 23 660] (Exhibit
62). 62
Water retention areas and detention areas have
continued to be considered as an option for cleaning agricultural
drainage in the EAA. In 1978, the Florida State Planning
65
Director recommended to the Executive Director of the District
that the District undertake:
systematic evaluation of all potential
retention areas to achieve optimum storage
and recycle of water now backpumped.
Consideration of storage of a percentage of
water now pumped from the southern half of
the Everglades Agricultural Area to
Conservation Area 3 in the retention areas
should be a part of the planning process as
should water which present plans intend to
route from the Everglades Agricultural Area
and adjacent areas into Conservation Area 3.
Letter from R.G. Whittle, Jr., State Planning Director, to J.
Maloy, Executive Director SFWMD, at 4 (Aug. 30, 1978) (Exhibit 63).
Similarly, the Florida Game and Fresh Water Fish Commission
stated in a letter to the Secretary of DER:
The Holey Land reservoir may provide some
degree of water quality and quantity relief
to Lake Okeechobee, but the long-range
solution to many of these problems is closely
entwined with the types of land uses
established in the EAA and their water needs .
We recommend that considerable emphasis be
placed on the demonstration and research
values of currently developed State lands for
developing and implementing water quality and
quantity management techniques such as
agricultural Best Management Practices,
alternate agricultural crops more tolerant of
water conditions, integrated pest management,
or on-site storage.
SFWMD, Executive Summary Addendum, Water Quality Management
Strategy for Lake Okeechobee (November 1982) (Attachment 1),
Letter from Col. R. Brantly to V. Tschinkel, at 4 (May 18, 1982))
(emphasis added) (Exhibit 64). In 1985, the Director of the
Environmental Sciences Division at the District offered a
specific proposal for a half-mile wide flow-way in the EAA to
66
clean agricultural drainage, noting that "[t]his concept is not
new . . ." Memorandum from J.W. Dineen, Director Environmental
sciences, to P.B. Rhoads, Director Resource Planning, at 1
(Nov.18, 1985) (Exhibit 65).
The defendants have also considered and rejected for
many years an aggressive regulatory program for the EAA. When
the District in 1982 considered the use of the Holey Land, a
state-owned wetland within the EAA, to purify agricultural
drainage, District counsel stated:
Pursuant to the recent stormwater delegation
from DER, all agricultural operations can
be required to obtain "stormwater discharge
permits" from this District. Under this
option, the District would define those
agricultural operations which would be served
by the Holeyland project, and require the
same to obtain stormwater discharge permits
from the District. As a condition for
obtaining such a permit, the applicant would
be given the option of providing adequate
mechanisms on-site for retaining or detaining
stormwater run-off from the operation, or
signing up with the District for the use of
the Holeyland project.
Memorandum from S. Niego, Office of Counsel, to S. Reel, Director
Special Projects, at 1 (Sept. 8, 1982) (emphasis added) (Exhibit
66).
Nonetheless, District staff in 1985 reported that "the
[District's] regulatory program has approached the [water
quality] issue cautiously, requiring general or passive kinds of
systems that are primarily justified for their hydrologic value
rather than their pollution abatement value." SFWMD, Draft
Resource and Process Issues, at 3 (November 1985) (Exhibit 67).
District counsel in 1985 identified the various permitting
67
options available to regulate the EAA, but conceded that "[i]n
the long run, it is not our intent to use the permitting process
to specifically regulate individual agricultural interests."
Memorandum from S. Walker, District Counsel, to P. Rhoads et al.,
at 1 (Dec. 5, 1985) (Exhibit 68). More recently, the District
again conceded that "[t]here is absolutely no question in our
minds that we can regulate the Everglades Agricultural Area."
63
Nonetheless, the District admits that it "did not under take an
enforcement program to require all the existing development to
seek permits." 64
Despite the defendants' awareness of the ecological
devastation that nutrient-polluted agricultural drainage from the
EAA for many years has caused and continues to cause in the
Everglades, they remain tentative and seemingly uncommitted to
solving the problem. The Final Everglades SWIM Plan does not
guarantee such a solution. Instead an aggressive remedial
strategy is urgently needed. The first step in forging such
relief is to establish the defendants' liability. The following
sections demonstrate that the defendants are liable under Florida
law for the ongoing pollution they allow in the Everglades.
68
IV. ARGUMENT
The defendants have caused or allowed serious water
quality problems in the Everglades to persist and continue
despite stringent Florida water quality statutes and contractual
agreements between the District and agencies of the United States
which place responsibility on the defendants to prevent
degradation of Everglades water. Specifically, the Florida
legislature has enacted two statutes that govern water quality:
the Florida Water Resources Act of 1972, Fla. Stat. Ch. 373, and
the Florida Air an d Water Pollution Control Act of 1975, Fla.
Stat. Ch. 403. 65
In 1987,
Chapter 373 was amended to add the
Surface Waters Improvement and Management Act ("SWIM Act"), Fla.
Stat. Ann. §§ 373.451-373.503 (1988). These statutes, which are
to be construed liberally, Fla. Stat. § 373.6161 (1988), require
the defendants to protect the water quality in the Park and
Refuge by establishing and enforcing water quality standards and
by placing and enforcing appropriate restrictions in various
69
permits governing the use of waters in the State. 66 The License
Agreement between the District and the U.S. Fish and Wildlife
Service and the MOA between the District, the Corps of Engineers
and the National Park Service place additional duties on the
District to safeguard water quality in the Park and Refuge. By
allowing nutrient-polluted water to flow into the Everglades, the
defendants breach these statutory and contractual obligations.
Accordingly, the United States is entitle d to partial summary
judgment on liability. 67
70
A. Count I - Defendants Have Breached Their Duty To
Enforce Florida's Water Quality Statutes,
Damaging the
Park and Refuge
The Park and Refuge receive the highest level of water
quality protection under Florida law. This stringent level of
protection is implemented through water quality standards
68 which
DER promulgated under Chapters 403 and 373. See Fla. Stat. Ann.
§ 403.061(11) (1986 & Supp. 1988). The State Water Policy
provides that "[w]ater quality standards shall be enforced
pursuant to Chapter 403 . . . to protect waters of the State from
point and non-point sources of pollution." F.A.C. § 17-40.060(l)
(1990). Florida law obligates the defendants to enforce these
standards through permitting schemes that they administer. In
violation of this enforcement mandate, the District and DER for
years knowingly have allowed and continue to allow widespread
breach of water quality standards designed to safeguard the
unique ecological features of the Park and Refuge. Accordingly,
the United States is entitled to judgment on count I of the
Second Amended Complaint alleging the defendants' failure to
control water pollution.
71
The Park and Refuge are classified as Class III waters,
which are to be maintained for recreation and the "propagation
and maintenance of a healthy, well-balanced population of fish
and wildlife." F.A.C. § 17-3.121 (1990). 69 By allowing
nutrient-polluted drainage to invade the Park and Refuge, the
defendants violate at least four water quality standards which
must be met in Class III waters: 1) the numerical dissolved
oxygen standard; 2) the standard prohibiting substances in
concentrations which result in the dominance of nuisance species;
3) the numerical standard of biological integrity; and 4) the
standard prohibiting nutrients in concentrations that cause an
imbalance in natural populations of aquatic flora or fauna.
F.A.C. § 17-3.061(3)(g)(q); F .A.C. § 17-3.121(7),(11),(13), and
(19) (1990). In addition, nutrient-polluted inflows to the Park
and Refuge contravene DER's policy "to limit the introduction of
man-induced nutrients into the waters of the State" and the
72
directive to give "particular consideration . . . to the
protection from nutrient enrichment of those waters presently
containing very low nutrient concentrations: less than 0.3
milligrams per liter total nitrogen or less than 0.04 milligrams
per liter total phosphorus." F.A.C. § 17-3.011(11) (1990).
Aside from these Class III water quality standards,
both the Refuge and the Park are Outstanding Florida Waters
("OFWs"), for which State policy affords "the highest
protection.m F.A.C. § 17-3.041(l) (1990). OFW standards thus
are designed to provide even more stringent protection than Class
III water quality standards. DeCarion v. Department of Environ.
Regulation, 445 So.2d 619, 621 (Fla. App. 1 Dist. 1984). The OFW
standard prohibits the lowering of the ambient water quality
below the quality that existed on either property during the year
prior to March 1, 1979. F.A.C. §§ 17-3.041(5), 17-4.242(2).
70
Analysis of Park and Refuge inflow concentration data collected
since 1979 evinces clear violations of the OFW standard in both
the Park and the Refuge.
Finally, the District violates the specific provision
in the Surface Water Improvement and Management ("SWIM") Act,
Fla. Stat. Ann. §§ 373.451-373.4595 (1988), directing the
defendant District to prevent nutrient-polluted inflows from
degrading the water quality in the Park. Specifically, the SWIM
73
Act, passed in 1987, requires each water management district to
devise and implement plans and programs for surface water
improvement and management. In light of the legislative finding
"that efforts to reduce nutrient levels in Lake Okeechobee have
resulted in diversions of nutrient-laden waters to other
environmentally sensitive areas, which diversions have resulted
in adverse environmental effects," Fla. Stat. Ann. §
373.4595(2)(a)(1) (1988), the SWIM Act provides that "[t]he
[SFWMD] shall not divert waters to . . . the Everglades National
Park [] in such a way that the state water quality standards are
violated [or] that the nutrients in such diverted waters
adversely affect indigenous vegetation communities or wildlife
. . ."
1. Defendants Have Failed to Enforce Water Quality
Standards Applicable to the Refuge
The water quality impacts of nutrient-polluted water
are to date even greater in the Refuge than in the Park. As a
result, numerous violations of Class III water quality standards
and the OFW anti-degradation standard occur in the Refuge. The
defendants are liable for failing to enforce these water quality
standards.
a Water Quality in Loxahatchee Violates Class
III Water Quality Standards
Following DER's 1987 water quality investigation in the
Refuge, DER documented numerous Class III water quality standard
violations in the Refuge. Specifically, DER found that water in
the Refuge suffered from 1) the dominance of nuisance species, 2)
74
an imbalance in the aquatic community, 3) a 25 percent decrease
in the biological integrity (diversity) of the ecosystem, and 4)
decreased levels of D.O. DER Interoffice memorandum from R.
Frydenburg & L. Ross to P. McVety, at 1 (Nov. 24, 1987)
[hereinafter DER WCAs Memorandum] (Exhibit 72). DER's research
showed that "[s]ubstantial evidence exists that nutrient inputs
are creating conditions harmful to the biota in the Water
Conservation Areas and are resulting in violations of state water
quality standards." Id. at 4. Each of these violations is
discussed in more detail below.
i. Water Entering the Refuge Violates the
Numerical Dissolved Oxygen Standard.
In assessing the water quality in the WCAs, DER
documented violations of the D.O. standard. A DER technical
report on water quality violations in the WCAs admits that "there
are violations of Chapter 17-3 standards for dissolved oxygen,
pH, specific conductance and bacteria in both the rim canal and
interior marsh in the Refuge. DER Water Quality, Assessment, at
10-11 (Exhibit 47). Moreover, the DER Report found that "[a]
long-term annual trend of degrading water quality [in the Refuge]
is obvious for dissolved oxygen, total nitrogen and total
phosphorus." Id. at 10. The documented loading of peat in the
Refuge with phosphorus has set the stage for ongoing dominance of
nuisance species in the Refuge. Jones Decl., at ¶ ¶ 11
(Attachment A).
75
ii. Concentrations of Nutrients which Result
in the Dominance of Nuisance species are
Present in Water Entering the Refuge.
Both cattails on the macrophytic scale and oxygen-
depleting algae on the microscopic scale are nuisance species in
nutrient-enriched areas of the Everglades. The conversion of at
least 6,000 acres of Refuge habitat from sawgrass and wet prairie
marshes to cattails is an obvious violation of the Class III
water quality standard prohibiting water entering the Refuge from
causing the dominance of nuisance species. SFWMD Board Meeting
Overheads, at 37 (Exhibit 46). In addition, DER's review and
assessment of water quality violations in the WCAs, including the
Refuge, concluded that this standard is violated in nutrient-
enriched areas of the WCAs, such as exist in vast portions of the
Refuge. Specifically, the DER memorandum states:
Nutrient inputs were shown to produce
conditions which resulted in the dominance of
pollution indicator algal species and
anaerobic decomposer microbes.
DER WCAs Memorandum, at 1 (Exhibit 72).
iii. The Biological Integrity of the Refuge
is Being Impaired by Saturation With
Nutrients.
Both District and DER staff scientists have found that
the biological integrity of the Refuge is impaired by the
introduction of nutrients which cause species diversity to
decline. DER notes in the 1987 water quality assessment that
nutrient enriched areas of the Refuge violate F.A.C. § 17-
3.121(7). DER WCAs Memorandum, at 4 (Exhibit 72). Specifically,
DER verified that
76
[m]oderate to severe water quality problems
were found in the Conservation Areas as
evidenced by high nutrient and oxygen demand
concentrations, and low dissolved oxygen
concentrations and macroinvertebrate
biological diversity....
DER Water Quality Data Assessment, at 2 (emphasis added) (Exhibit
47).
In addition to DER's research, District scientists have
found that "[p]eriphyton species diversity in the interior of
WCA-1 [the Refuge] were [sic] significantly higher than those
recorded in WCA-2A, WCA-3A, and the peripheral marsh of WCA-1.
Lowest diversity indices occurred in nutrient rich waters...."
SFWMD Technical Publication 87-2, at vi (Exhibit 45). This
reduction in periphyton species diversity constitutes a violation
of the biological diversity standard applicable to the Refuge.
iv. Nutrient Concentrations In Water
Entering Loxahatchee are Causing an
Imbalance in the Natural Populations of
Aquatic Flora and Fauna.
An imbalance in the natural populations of aquatic
flora and fauna can be determined from a test which measures
significant changes in organism abundance, species richness,
diversity, or community compositions DER WCAs Memorandum, at 2
(Exhibit 72). When DER conducted such tests in nutrient-
enriched areas in the WCAs, such as exist in the Refuge, they
found both "imbalances in the aquatic community" and a "25%
decrease in biological integrity (diversity)." Id. at 1. DER
cited numerous significant nutrient-related imbalances in the
algal community, the benthic community, freshwater shrimp
77
populations and other aquatic faunal communities. Id. at 2. The
conversion of 6,000 acres native marsh in the Refuge to cattails,
as well as the extensive excess phosphorus loading in Refuge
soils and other nutrient-related impacts affecting up to 24,000
total acres in the Refuge must also be considered imbalances
within the meaning of this water quality standard.
b. Defendants Have Failed to Enforce the OFW
Standard in the Refuge
The OFW regulation is designed to prevent degradation
of surface waters by prohibiting the lowering of water quality
below the ambient water quality that existed in the OFW during
the year preceding the effective date of the OFW designation.
F.A.C. § 17-4.242(l) (1990). The Refuge was designated an OFW as
of 1979. Thus, under Florida law, direct discharges into the
Refuge from inflow stations such as pumps S-5A and S-6 must not
lower ambient water quality below that which existed in the
Refuge from March 1978 to March 1979.
Despite DER's acknowledgement that the Refuge's status
as an OFW "subjects its waters to more stringent criteria" than
Class III water quality standards alone, the defendants allow
violation of this paramount standard. DER Water Quality Data
Assessment, at 8 (Exhibit 47). DER admits that in the Refuge,
"[a] long term annual trend of degrading water quality is obvious
for dissolved oxygen, total nitrogen and total phosphorous." Id.
at 9. DER's technical report substantiated that "[t]rend
analysis of Conservation Area 1 [Refuge] rim canal data revealed
worsening water quality conditions during the 1970-1987 time
78
period." Id. at 2. These documents demonstrate that the ambient
water quality levels in the Refuge have been lowered in direct
contravention of DER's OFW standard.
2. Defendants Have Failed to Enforce water Quality
Standards Applicable to the Park
The enhanced growth of cattails and other nutrient-
tolerant species in the northern reaches of the Park and the
extensive loading of the peat soils six kilometers into the Park
constitute violations of the Class III water quality standards
applicable to the Park. In addition, the Park's OFW standard is
violated by the steady increase in nutrient concentrations in
Park inflows since 1979. The District and DER are liable for
failing to enforce these standards.
a. The Defendants Allow Violations of Class III
Water Quality Standards in the Park
DER's water quality regulations mandate that
"[s]ubstances in concentrations that result in the dominance of
nuisance species . . . shall [not] be present" in Class III
waters. F.A.C. § 17-3.061(3)(q) (1990). "Dominance" in this
context means:
the presence of species or communities in
greater numbers, biomass, or areal extent
than competing species or communities, or a
scientifically accepted tendency of species
or communities to achieve such a status under
existing or reasonably anticipated
conditions.
F.A.C. § i7-3.021(10) (1990) (emphasis added). 71 By displacing
79
vast sawgrass marshes and wet prairies and interfering with the
"propagation and maintenance of a healthy, well-balanced
population of fish and wildlife," F.A.C. § 17-3,121 (1990),
72
cattail becomes a nuisance species. Nutrient pollution already
has invaded the Park, loading the peat soils to the point where
cattails can dominate other species. Jones Decl., at ¶ 17
(Attachment A). Thus, under "existing or reasonably anticipated
conditions" nuisance species such as cattails and lower-level
nuisance species, such as oxygen-depleting algae, will interfere
with the designated use of the Park under Florida's water quality
regulations. The damage caused by nutrient loading in Park soil
and the continuing threat posed by the expansion of the nutrient
front toward the Park constitute a violation of DER's water
quality standards.
b. The Steady Trend of increasing Nutrient
Concentrations in Park Inflows Violates the
Park's OFW Anti-Degradation Standard
Because of its exceptional ecological significance, the
Park, like the Refuge, was designated an OFW as of March 1, 1979.
F.A.C. § 17-3.041(5) (1990). Thus, the baseline year for
assessing the ambient water quality in the Park is March 1, 1978
to March 1, 1979. Despite the Park's anti-degradation
designation, the defendants since 1979 have allowed the average
80
phosphorus concentration in Park inflows to increase an average
of 4 to 21 percent annually. By allowing this degradation trend,
defendants violate the OFW standard applicable to the Park.
B. Count II - Defendants' Intentional Diversion of
Polluted Water Constitutes a Nuisance Under
State Law
Count II alleges in part that the District's delivery
of nutrient-laden water to the Park and the Refuge constitutes a
nuisance. Under Florida law, a nuisance is activity which
"annoys or disturbs one in free use, possession or enjoyment of
his property or which renders its ordinary use or occupation
physically uncomfortable." Town of Surfside v. County Line Land
Co., 340 So.2d 1287, 1289 (Fla. Dist. Ct. App.), cert. denied,
352 So.2d 175 (Fla. 1977). Since 1889 the Florida Supreme Court
has recognized that water pollution is a nuisance . Pensacola Gas
Co. v. Peblev, 25 Fla. 381, 5 So. 593 (1889) [percolation from
refuse which pollutes and makes the water in the wells of an
adjoining landowner unfit for household and stock uses is a
nuisance.] More recent examples abound. In St. Regis Paper Co.
v. Pollution Control Board, 298 So.2d 217 (Fla. Dist. Ct. App.
1974), the court enjoined operation of a mill that colored affected
waters. In Wetzel v. Duda & Sons, 306 So.2d 533 (Fla.
Dist. Ct. App.), cert. denied, 316 So.2d 289 (Fla. 1975),
riparian property owners on Lake Apopka successfully sued
farmers for abrogating their duty to operate their farming operations
without injuring neighboring property by discharging noxious
substances into the lake. And in Bunvak v. Clyde Yancey and Sons
Dairy, Inc., 438 So.2d 891 (Fla. Dist. Ct. App. 1983), cattle
81
farmers were awarded compensatory and punitive damages for
injuries caused by liquefied cow manure flowing onto their
property.
Florida's water quality statutes also proscribe as
nuisances activities that pollute state waters. Specifically,
under Florida law:
Any stormwater management system, dam,
impoundment, reservoir, appurtenant work, or
works which violates the laws of this state
or which violates the standards of the
governing board or the department shall be
declared a public nuisance.
Fla. Stat. Ann. § 373.433 (1988).
Under this Florida case and statutory law, the
defendants' intentional introduction of nutrient pollution that
causes the wholesale conversion from sawgrass marshes and wet
prairies to cattail-dominated marshes and other ecosystem changes
that precede cattail invasion is clearly a nuisance. Knowing
that the nutrient-laden water causes ecological damage,
defendants deliberately decided in the 1979 Interim Action Plan
to stop backpumping nutrient polluted water into Lake
Okeechobee. 73
Instead of
cleaning the water, defendants annually
divert over fifty additional tons of phosphorus into the Refuge,
the other WCAs and ultimately the Park. 74
First Draft SWIM Plan,
82
Vol. 1, at 4 (Exhibit 5). The District reaffirmed this decision
in the 1988 Lake Okeechobee SWIM Plan. The SFWMD's intentional
diversion of nutrient-polluted water onto federal. property, which
to date has caused conversion of at least 26,000 acres of native
Everglades to cattail-dominated marsh and countless additional
acres of ecological damage that precedes cattail conversion,
constitutes a nuisance which must be abated.
C. Counts I and II - Defendants Fail to Fulfill Their
State Law Duty to Require and obtain Permits
Counts I and II allege in part that the defendants
violate Florida law by failing to require of others, or
themselves apply for and obtain, permits adequately protecting
water quality in the Park and Refuge. The state law permitting
provisions plainly require the protection of water quality. The
defendants breach these permitting provisions by failing to
require permits for activities in the EAA that pollute the Park
and Refuge with nutrients and by failing to incorporate adequate
water quality-based restrictions in the permits they do issue.
The District also violates state law by not having obtained
necessary permits for its pumps and structures that discharge
into the Refuge and south toward the Park. Accordingly, the
United States is entitled to judgment on those parts of counts I
and II alleging the defendants' failure to exercise their
permitting authority adequately.
83
1. Defendants Fail Adequately to
Consider Everglades
Environmental Impacts Before Issuing Permits
For
Use and Management of Waters
Chapter 373 establishes a consumptive use permitting
system to govern the allocation, use and management of water
resources. The statute required the governing board of each
water management district, by October 31, 1983, to implement a
consumptive us e permitting program, including appropriate
monitoring efforts. Fla. Stat. Ann. § 373.216 (1988). Under the
consumptive use provisions, SFWMD or DER "may require such
permits for consumptive use of water and may impose such
reasonable conditions as are necessary to assure that such use is
consistent with the overall objectives of the district or
department and is not harmful to the water resources of the
area." Fla. Stat. Ann. § 373.219(l) (1988) (emphasis added).
An applicant for a consumptive use of water must
establish that the proposed use of water "[w]ill not interfere
with any presently existing legal use of water . . . and is
consistent with the public interest." Fla. Stat. Ann. §
373.223(l) (1988). 75
Thus,
consumptive use permits may impose
restrictions based on water quality impacts. See Zellwood
[upholding St. Johns Water Management District's denial of
84
consumptive use permit based on impact on water quality in
receiving waters] (Exhibit 71).
The State of Florida has long recognized the obligation
of its agencies, including the water management districts, to
protect water quality under authority of Chapter 373. In 1975,
the Florida Attorney General told the Central and Southern
Florida Flood Control District (SFWMD's predecessor):
As a general rule, your agency is required by
law to prevent harm to water resources within
the district. While no specific reference is
made in Ch. 373, F.S., to the district's
authority to control water quality, it is
implicit in the act that the district should
not, by permit, authorize unlawful
degradation of water quality.
Op. Atty. Gen. 075-16 (Jan. 29, 1975).
The Attorney General correctly reasoned that the
District has authority to issue consumptive use and surface water
management and storage permits only for activities that will not
be harmful to the water resources of the area, and that "it is
axiomatic that lowering water quality would be harmful to the
water resources of the district." Id. at 24. Thus, he
concluded, Nit is clear that the district's permitting procedures
must take into consideration water quality. . . . especially
. . . when considering the general policy of creation of the
water management district under the Florida water Resources Act
85
of 1972, and the fact that the statute is to be liberally
construed for effectuating the Act's purposes." Id. at 24.
76
Although Chapter 373 authorizes both DER and the water
management districts to issue consumptive use permits, DER
delegated to SFWMD its consumptive use permitting authority,
including the authority to regulate nonpoint source pollution,
such as agricultural wastewater, through consumptive use permits.
F.A.C. § 17-101.040(12)(1) (1990). The SFWMD Board "may impose
on any [consumptive use] permit . . . such reasonable conditions
as are necessary to assure that the permitted use or withdrawal
will be consistent with the overall objectives of the District
and will not be harmful to the water resources of the District
. . ." F.A.C. § 40E-2.381(l) (1990). SFWMD rules also require a
consumptive use permittee to mitigate to the satisfaction of the
District any adverse impact on existing legal uses caused by
withdrawals. When adverse impacts occur, or are imminent, [the
SFWMD] reserves the right to curtail withdrawal rates. Adverse
impacts include . . . change in water quality that causes
impairment or loss of use of a well or water body." F.A.C. §
40E-2.381(2)(d)(4) (1990).
Defendant SFWMD has issued numerous consumptive use
permits in the EAA. As evidenced by the continued nutrient-
86
induced loss of native Everglades habitat, the spread of cattails
in both Loxahatchee and WCA-2A, and the ecologically systemic
adverse nutrient-induced changes affecting countless thousands of
acres in the Everglades, adequate water quality considerations
are not incorporated in the decision whether and under what
conditions to issue a consumptive use permit. Moreover, these
facts demonstrate that the upstream EAA uses interfere with the
Park and the Refuge's legal uses of the water, also in
contravention of the consumptive use permitting requirements.
Thus, defendant SFWMD violates its statutory mandate by
continually issuing consumptive use permits without adequately
considering water quality impacts on the receiving waters.
2. Defendants Fail to Consider Everglades
Environmental Impacts Before Issuing EAA
Stormwater and Surface Water Management and
Storage Permits
Defendant SFWMD has authority to issue permits under
Fla. Stat. Ann. § 373.416 (1990) for stormwater and surface water
management and storage. This state program recognizes that the
operation, maintenance, alteration or construction of stormwater
management systems, dams, impoundments, and other surface water
management systems may be permitted by the state. The permits
may impose conditions designed to ensure that the facilities
"will not be harmful to the water resources of the district."
Fla. S tat. §§ 373.413(l) and 373.416(l). The state's regulations
recognize that the permits should require, among other things,
that the systems "will not cause adverse water quality and
quantity impacts upon receiving waters and adjacent lands" and
87
"will not cause adverse environmental impacts . . ." 40
F.A.C. § 40E-4.301(l). 77
As shown by the continued spread of cattails in both
the Refuge and WCA-2A, as well as the numerous other adverse
ecosystem changes which occur in the Refuge and the Park, water
quality considerations are not being adequately incorporated in
the decision whether and under what conditions to issue
stormwater and surface water management and storage permits in
the EAA. Indeed, the SFWMD admits that it imposes water quality
limitations - which to date have been unsuccessful in meeting
water quality standards in the Everglades - only on surface water
permits for new construction, leaving the massive number of
existing facilities unregulated with respect to water quality:
The District has applied its surface water
permitting process primarily to new
construction. Permits are generally required
for existing, unpermitted systems only when
changing land uses or specifically identified
water management problems dictate alterations
of the existing system. This approach of
applying the permit program primarily to new
development was taken to prevent the growth
of water resource management problems. It
takes advantage of the construction process
to implement the required design features.
Finally, it recognizes that, in many cases,
correcting existing problems will be a large
undertaking involving a scope of activities
much broader than the regulatory process.
88
SFWMD Report, Review of the Rules and Enforcement Programs of the
South Florida Water Management District Pertaining to the
Pollution of Surface Waters, at 3-4 (Feb. 12, 1988) [hereinafter
SFWMD Report, Review of the Rules and Enforcement Programs]
(Exhibit 77). That insistence on water quality conditions will
be complicated, far-reaching or controversial in no way excuses
the District from exercising its duty to impose them on EAA water
users.
Despite the District's longstanding authority to
require water quality conditions in surface water and stormwater
management and storage permits, this policy only recently
replaced a policy of incorporating no meaningful water quality
conditions on such permits. 78
Moreover, even the new policy
89
exposes the District's unwillingness to take the heat for an
aggressive regulatory approach that would force existing
facilities to internalize the costs of their pollution. Instead,
the District appears willing to let unique Everglades resources
pay the ecologically devastating price of the District's
inaction. 79
SFWMD's conscious failure properly to consider water
quality in its permitting decisions for stormwater and surface
water management and storage, and to enforce any such conditions
which have been incorporated into permits, contravenes the
explicit language and underlying intent of the regulations
governing such permits. The result of this regulatory failure
has been the continued degradation of water quality to the
detriment of federal property.
3. The Defendants Fail To Require Adequately
Protective Discharge Permits for EAA
Discharges
Chapter 403, "Florida Air and Water Pollution Control
Act," passed in 1975, requires DER to "[e]stablish a permit
system whereby a permit may be required for the operation,
construction, or expansion of any installation that may be a
source of air or w ater pollution and provide for the issuance and
revocation of such permits ...." Fla. Stat. Ann. § 403.061(14)
90
(1986). Also under Chapter 403, DER may "[i]ssue such orders as
are necessary to effectuate the control of air and water
pollution and enforce the same by all appropriate administrative
and judicial proceedings." Fla. Stat. Ann . § 403.061(8) (1986).
The law further provides:
No stationary installation which will
reasonably be expected to be a source of air
or water pollution shall be operated,
maintained, constructed, expanded, or
modified without an appropriate and currently
valid permit issued by the department . . . .
Fla. Stat. § 403.987(l). The term "source" is defined in § 403-
031(9) as "any and all points of origin" of "contaminants." The
statute similarly prohibits persons from discharging without a
permit:
No person, without written authorization of
the department, shall discharge into waters
within the state any waste which, by itself
or in combination with the wastes of other
sources, reduces the quality of the receiving
waters below the classification established
for them.
Fla. Stat. § 403.088(1).
The private pumps in the fields of the EAA which
discharge into the SFWMD canals are installations that require
DER discharge permits. Indeed, in an administrative enforcement
case by DER against Deseret Ranches of Florida, Inc., DER
maintained that agricultural pumps require permits for operation.
State of Florida Department of Environmental Recrulations v.
Deseret Ranches of Florida, Case No. 78-2040, (Fla. D.E.R. Sept.
13, 1989) (Exhibit 73). The District itself concedes that
"[t]h ere is absolutely no question in our minds that we can
91
regulate the Everglades Agricultural Area." 80 Nonetheless, the
District admits that it "did not undertake an enforcement program
to require all the existing development [in the EAA] to seek
permits." 81
The
defendants are liable for their consistent
failure to require discharge permits and to incorporate mandatory
water quality considerations in the permitting process. See
Florida Wildlife Federation v. Department of Environmental
Regulation, 390 So.2d 64 (Fla. 1980) [statute creates cause of
action to compel permitting].
4. Defendants Fail to Require Permits for Current EAA
Discharges So To Satisfy the State
Antidegradation
Water Quality Standard
DER and SFWMD are also required, by the state
antidegradation water quality standard, to evaluate existing EAA
sources that threaten the Everglades. They must refuse to issue
permits to current dischargers where substantive water quality
concerns cannot be satisfied or impose strict discharge limits
that will satisfy these water quality concerns, as well as take
enforcement action against currently unpermitted discharges which
violate the state water quality standards. These provisions, in
short, man date that DER and SFWMD may not simply continue the
92
status quo and implement only prospective regulation through
permits.
Florida's regulations explicitly require that permits
that are issued be consistent with the state's antidegradation
policy. F.A.C. § 17-242(l)(a). In particular, the
antidegradation policy is made applicable to "existing
discharges." F.A.C. § 17-3. 042(6). Thus, "[p]ollution which
causes or contributes to . . . continuation of existing
violations [of water quality standards] is harmful to the waters
of this State and shall not be allowed." F.A.C. § 17-3.042(5).
Furthermore, the DER is required to "refuse to permit the
discharge" for existing discharges which "reduce the quality of
receiving waters below the classification established for them or
violate any Department rule or standard . . . ." F.A.C. § 17-
3.042(6). Thus, the defendants' failure to regulate existing
discharges breaches their obligation to assure compliance with
the state's antidegradation standard.
5. Defendants Fail to Require or Obtain Stormwater
and Surface Water Management and Storage
Permits
for the Pumps that Discharge into the Refuge
and
South Toward the Park
Contrary to its statutory mandate, the District has not
procured adequate stormwater and surface water management and
storage permits from the DER for the District's large pumps which
transport water either directly onto or toward federal property.
As discussed above, the state regulatory program for stormwater
and surface water management and storage recognizes that the
operation, maintenance, alteration or construction of stormwater
93
management systems, dams, impoundments, and other surface water
management systems may be permitted by the state with conditions
designed to ensure that the facilities "will not be harmful to
the water resources of the districts." Fla. Stat. §§ 373.413( l)
and 373.416(l).
The pumps that discharge into the Refuge must have
stormwater and surface water management and storage permits which
will ensure that water quality is not degraded below the Class
III and OFW standards. 82
At present, DER does not require
permits that w ill necessarily ensure that discharges out of the
EAA will meet all applicable water quality standards in the
Refuge and the Park. Indeed, DER acknowledges that the
District's pumps discharge water in violation of water quality
standards:
All [five SFWMD structures which discharge
water from the EAA to the WCAs] appear to
have existing parameters which are not in
continuous compliance with all state water
94
quality standards, and two of these
structures (S-5A and S-6) discharge into
outstanding Florida Waters (Water
Conservation Area 1 - Loxahatchee National
Wildlife Refuge).
Attached Notes to Letter from R. L. Armstrong, DER, to T. K.
MacVicar, SFWMD (May 18, 1990) (Exhibit 55).
The state, in letters from the DER to the District and
the Corps in January 1990, has also conceded that pursuant to the
Stormwater Act, Chapter 89-279, Laws of Florida, a stormwater
management permit is required for the District's S-5A, S-6, S-7,
S-8 and S-150 structures which drain the EAA. Letter to J.
Wodraska from D. Twachtmann (Jan. 9, 1990) (Exhibit 76). DER
told the District that the permit application "should be designed
to comply with the provisions of both Chapters 373 and 403 [and]
to provide reasonable assurance that state water quality
standards will be met." Id. at 2. Moreover, DER has required
permits for the District's S-2, S-3, S-4 and other pumps that
discharge to Lake Okeechobee. See DER Permit No. RT 50-15769
(Dec. 10, 1979) (Exhibit 74). The District's S-5A and S-6 pumps
are indistinguishable from those pumps for permitting purposes.
DER's letter, and the District's response that it will
apply for a permit in conjunction with the SWIM plan, do not
ensure that the serious water quality violations in the Refuge
and Park will be remedied. An exchange of letters alone should
not convince the court that the defendants are now ready and
willing to take actions that they have delayed for decades.
94
Florida water quality standards are being violated in
the Refuge by nutrient-laden water that is pumped in from the
EAA. 83
DER's failure
adequately to require permits for the vast
majority of the pumps in the EAA, as well as some of the largest,
most polluting pumps operated by SFWMD, allows nutrient pollution
to continue unabated in derogation of state law and to the
detriment of federal property.
D. Defendants Are in Violation of the License Agreement
With the United States
In 1951, SFMWD's predecessor, the Central and Southern
Florida Flood Control District (CSF), entered into a "Cooperative
and License Agreement" with the United States, through the U.S.
Fish and Wildlife Service (FWS). License Agreement (Exhibit
1).
The genesis of the Agreement was the requirement of the Fish and
Wildlife Coordination Act of 1934, as amended, 16 U.S.C. §§ 661-
668ss (1985), that fish and wildlife preservation be coordinated
with the construction of flood control projects,
84 and the 1950
General Plan for the Use of Lands for Wildlife Conservation and
Management of Water Conservation Area No. 1, Central and Southern
Florida Flood Control District, between the Director of the
96
Florida Fish and Game Commission and the Secretary of the
Interior (Exhibit 79). The General Plan recognized that the CSF
had acquired certain lands for flood control and was agreeable to
having some of those lands used for wildlife conservation
purposes. Id. The General Plan further recognized that the
Secretary of the Interior had found that WCA 1 (the Refuge) had
particular value in carrying out the migratory bird management
program. Id. The parties to the Plan therefore agreed that FWS
would have use of WCA 1 as embodied in the License Agreement.
1. The License Agreement Provides for Both Wildlife
and Flood Control Uses
The License Agreement granted a 50-year license,
automatically renewable for three fifteen year terms, for the use
of lands owned by CSF in Water Conservation Area 1, to the FWS.
The Agreement contemplates that flood control objectives would be
achieved while allowing for maximum possible wildlife utilization
of the Refuge lands.
Section Two of the License Agreement describes the
purposes for which FWS was to utilize the Refuge:
The Service shall use said property as a
Wildlife Management Area, to promote the
conservation of wildlife, fish, and game, and
for other purposes embodying the principles
and objectives of planned multiple land use.
License Agreement, at 2 (Exhibit 1). While the Agreement states
that "flood control and other allied purposes" are the primary
purposes of the proposed multiple use, Section 18 mandates that
these purposes be carried out in a manner consistent with the
purposes described in section Two, such as wildlife use and
97
protection, development of breeding and feeding grounds for fish
and wildlife, recreational opportunities for the public and
associated endeavors:
It is understood and agreed that in the
operation and management of the Conservation
area lands for the primary purpose of flood
control and other allied purposes, the lands
and waters will be managed and operated in
the manner most consistent with Section 2
hereof, so far as it is not inconsistent with
the said primary purpose.
License Agreement, at 6 (Exhibit 1).
Thus, under the License Agreement, flood control in the
Refuge is to be conducted so as to interfere as little as
possible with wildlife preservation. Flood control and wildlife
preservation can be highly complementary in this context. Native
Everglades species have historically experienced periods of high
and low water and have adapted to seasonal changes in hydroperiod
which are not dissimilar to those that are caused by utilizing
the Refuge for flood control. See Maffei Decl., at ¶ 6
(Attachment B). The License Agreement clearly contemplates that
flood control can be achieved and wildlife preservation
benefitted at the same time. Although wildlife objectives may
have to bow to flood control needs in certain instances, the
License Agreement provides that where flood control management
needs may be achieved by any of several methods, those "most
consistent with wildlife preservation must be pursued. Under
the License Agreement, then, wildlife preservation is clearly
intended to be more than an incidental benefit of utilizing
the area for flood control.
98
2. SFWMD Violates Section Two of the
Agreement by
Polluting Wildlife Habitat
The water regulation schedule set by the Corps of
Engineers for the Refuge implemented the flood control and water
storage purposes of the CSF Project. That schedule is roughly
patterned after the normal seasonal wet and dry cycle of the
Everglades, based on rainfall patterns. Nevertheless, under the
1979 IAP, SFWMD began diverting additional waters polluted with
nutrients into Loxahatchee. 85
The delivery of this pollution
serves neither a flood control nor any "allied purpose" -- the
existence of this nutrient loading in the water provides no flood
protection in times of rain and does nothing to assist in water
storage in times of drought. Accordingly, the pollution of EAA
discharges may not receive any priority under the multi-use
arrangement specified by the License Agreement. Furthermore, it
is completely inconsistent with the wildlife purposes of Section
Two of that Agreement.
It has been shown that nutrient enrichment of these
areas causes imbalances in the natural flora of the Refuge,
ultimately culminating in the development of dense cattail
stands. SFWMD Board Meeting Overheads, at 37 (Exhibit 46);
Maffei Decl., at ¶ 19 (Attachment B). Over 6,000 acres of the
land and waters of Loxahatchee have already converted to
cattails, totally losing their utility for wildlife preservation
99
and protection. Characteristic Everglades wildlife avoid these
cattail areas and do not use them for any purpose. SFWMD Board
Meeting Overheads, at 37 (Exhibit 46); See Maffei Decl., at ¶ ¶
21-23 (Attachment B). An additional 24,000 acres -- roughly one-
sixth of the entire Refuge -- have suffered nutrient pollution.
SFWMD Board Meeting Overheads, at 37 (Exhibit 46); Maffei Decl.,
at ¶ ¶ 18, 20, 24 (Attachment B). It is inevitable that, absent
remedial action, more and more acreage will suffer the adverse
ecological ramifications of nutrient pollution and ultimately
become infested with cattail. SFWMD Board Meeting Overheads, at
38 (Exhibit 46).
The central purpose for the creation of wildlife
refuges such as Loxahatchee is the protection and provision of
habitat suitable for wildlife. without such habitat, numerous
endangered and other species cannot survive. At a time when all
effort should be made to protect the rapidly diminishing
available wading bird habitat in South Florida, cattail
encroachment and other adverse ecosystem impacts continue.
This loss of significant portions of Refuge wildlife
habitat has unnecessarily and without sufficient connection to
any legitimate flood control purpose abrogated and will continue
to abrogate the wildlife purpose of the Refuge. See Maffei
Decl ., at ¶ ¶ 24 (Attachment B). Under the License Agreement
(Exhibit 1), SFWMD agreed that it would operate its flood control
program within Water Conservation Area No. 1 (now Loxahatchee)
for all the wildlife purposes set forth in Section Two, "in the
100
manner most consistent with Section 2." The License Agreement
does not contemplate use of the Refuge as a nutrient dumping
ground, and that use has no priority at all which would permit
SFWMD lawfully to harm or degrade the wildlife use. SFWMD may
not subject the wildlife use, even though it is secondary, to
this significant abrogation if it has alternatives to achieving
flood control. The SFWMD has never demonstrated that it can
achieve flood control objectives only by delivering polluted
waters to Loxahatchee. Accordingly, SFWMD is in breach of the
License Agreement.
E. The District Has violated the memorandum of
Agreement
In 1979, and subsequently in 1984, the District entered
into a MOA (Exhibit 2) with the United States, through the Corps
and NPS, to protect the purity of water entering the Park. Under
the MOA, water quality criteria for 27 parameters as set forth in
Appendix A to the MOA applied to all surface waters delivered to
the Park. In addition the MOA states:
Federal, State, and local water quality criteria which
are more stringent than those appended criteria shall
continue to apply.
SFWMD's deliveries of nutrient-laden water to the Park are in
violation of the state water quality standards incorporated into
the MOA.
The defendants' violation of state water quality
standards applicable to the Park and Refuge is demonstrated
above. The MOA incorporates and relies on those standards when
applicable. Nutrient pollution has invaded the Park and Refuge,
101
causing systemic vegetative changes and wholesale destruction of
vast areas of marsh. SFWMD's continued delivery of water in
violation of state water quality standards is, by inclusion, also
a violation of the MOA.
V. CONCLUSION
For the foregoing reasons, the United States is
entitled to partial summary judgment declaring the defendants
liable under all counts of the Second Amended Complaint. By
granting the United States' motion, the court will significantly
accelerate the forging of a remedy that will provide the Park and
the Refuge with the protection they urgently require and to which
the law entitles them.
Respectfully submitted,
___________________
RICHARD B. STEWART
Assistant Attorney General
Environment and Natural Resources
Division
____________________
DEXTER W. LEHTINEN
United States Attorney
Southern District of Florida
____________________
SUZAN HILL PONZOLI
(Fla. Bar No. 0272450)
RICHARD W. HARRISON
B.J. THRONE-CONTE
MAUREEN DONLAN
Assistant United States Attorneys
Southern District of Florida
155 South Miami Avenue
102
Miami, Florida 33130
(305) 536-5477
___________________
GEOFFREY A. GARVER
BEVERLY SHERMAN NASH
U.S. Department of Justice
Environment and Natural Resources
Division
General Litigation Section
P.O. Box 663
Washington, D.C. 20044-0663
(202) 272-4692
Attorneys for Plaintiff
JEREMY D. NEWMAN
MARY LOU FOLWER
Paralegals
Environment and Natural Resources
Division
General Litigation section
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