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 mov |