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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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).

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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

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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.

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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 mov