MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff, v.
UNITED STATES OF AMERICA, et al., Defendants.
CASE NO. 95-0533-CIV-DAVIS
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA,
MIAMI DIVISION
1998 U.S. Dist. LEXIS 15838
September 11, 1998, Decided
September 14, 1998, Filed
COUNSEL: [*1]
For MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, plaintiff: Dexter Wayne Lehtinen, Sonia
Escobia O'Donnell, Lehtinen O'Donnell Cortinas Vargas & Reiner, Miami, FL.
For FRIENDS OF THE EVERGLADES, intervenor-plaintiff: John E. Childe, Palmyra, PA.
For UNITED STATES OF AMERICA, defendant: Wendy A. Jacobus, United States Attorney's
Office, Miami, FL. Jon M. Lipshultz, United States Department of Justice,
Environment & Natural Resources, Washington, DC. Catherine A. Winer, United States
Justice Department, Environmental Protection Agency, Washington, DC.
For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, defendant: Lisa Beth Hogan,
United States Attorney's Office, Miami, FL. Jon M. Lipshultz, United States
Department of Justice, Environment & Natural Resources, Washington, DC. Charles
Thomas Collette, Department of Environmental Protection, Tallahassee, FL. Catherine
A. Winer, United States Justice Department, Environmental Protection Agency,
Washington, DC.
For CAROL BROWNER, JOHN HANKINSON, JR., defendants: Lisa Beth Hogan, United States
Attorney's Office, Miami, FL.
For FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, defendant: Charles Thomas
Collette, F. Perry Odom, [*2] Department of Environmental Protection,
Tallahassee, FL.
JUDGES: EDWARD B. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE TURNOFF.
OPINIONBY: EDWARD B. DAVIS
OPINION: OMNIBUS ORDER
THIS MATTER is before the Court on the following motions: (1) the Joint Motion by
Defendants United States Sugar Corporation and Sugar Cane Growers Cooperative of
Florida for Summary Judgment (D.E. # 115); (2) the same two Defendants' Motion for
Leave to File Motion and Accompanying Memorandum of Law in Excess of Twenty Pages
D.E. # 130); (3) Defendant United States' Motion for Summary Judgment (D.E. # 117);
4) Plaintiff Miccosukee Tribe of Indians of Florida's Motion for Summary Judgment
filed July 6, 1998, and not properly docketed by the Clerk's Office); (5) the Tribe's
Motion to File Summary Judgment Motion and Accompanying Memorandum of Law in Excess
of Twenty Pages (D.E. # 120); (6) the Tribe's Motion to File Oversized Response to
D.E. # 117 (D.E. # 137); (7) the Tribe's Motion to File Oversized Response to D.E.
# 115 (D.E. # 138); (8) the Tribe's Motion to File Oversized Reply to United States'
Opposition (filed July 27, 1998); and (9) the Tribe's Motion to File Oversized Reply
to Defendant-Intervenors' [*3] Joint Response (filed July 27, 1998).
The substance of all these motions is the validity of the State of Florida's Everglades
Forever Act ("the EFA" or "the Act"), passed by the Florida Legislature in 1994 as part
of federal and state efforts to clean up the Everglades. Plaintiff Miccosukee Tribe of
Indians of Florida ("the Tribe") subsequently filed suit against the United States
Environmental Protection Agency ("the EPA"). The complaint alleged the EFA changed
Florida's water quality standards, and that the EPA had ignored its duty under the
federal Clean Water Act to review the EFA to determine whether it altered those
standards.
The Tribe's summary judgment motion asks the Court to declare that the EFA changes
Florida's water quality standards and violates the Clean Water Act. The Defendants'
motions ask the Court to uphold a later EPA finding that the EFA does not change
Florida's water quality standards, and dismiss the suit for lack of subject matter
jurisdiction. For the reasons discussed below, the Court will deny the Defendants'
summary judgment motions and partially grant the Tribe's motion. The Court finds
the EFA constitutes a change in state water quality standards, [*4] and remands
the case to the EPA to take appropriate action.
FACTUAL AND PROCEDURAL BACKGROUND
I. GENERAL BACKGROUND
A. The Parties
The Miccosukee Tribe is a federally recognized Indian Tribe occupying three separate
parcels of land in and around Everglades National Park in Dade, Broward, and Collier
counties. The EFA and Everglades restoration efforts directly affect the Tribe's land.
Complaint at PP 5-12. The original Defendants were the United States, the EPA, and two
EPA administrators, Carol Browner and John Hankinson. Id. at PP 13-16. The EPA is the
federal agency charged with enforcing the Federal Water Pollution Control Act, popularly
known as the Clean Water Act ("the CWA"). Id. at PP 1-4. Browner is the EPA
Administrator. Id. at P 15. Hankinson is the EPA Administrator for Region IV, which
oversees the Everglades. Id. at P 16.
The Court granted three Defendants permission to intervene in the case last year.
Defendant United States Sugar Corporation farms sugar cane on more than 140,000 acres
in the Everglades Agricultural Area ("the EAA") at the northern edge of the Everglades.
D.E. # 28 at 2. Defendant Sugar Cane Growers Cooperative [*5] of Florida is a group
of 56 sugar cane growers who farm approximately 67,000 acres of land in the EAA. D.E.
# 55 at 1. Defendant Virginia Wetherell, Secretary of Florida's Department of
Environmental Protection, is charged under Florida law with administering and enforcing
the EFA. D.E. # 47 at 3.
B. The Affected Area
The Everglades is an extensive and unique wetlands system consisting of millions of
acres of shallow sawgrass marshes, wet prairies, aquatic sloughs, and tree islands.
A.R. at 4861, 6073. n1 Approximately half the original Everglades has been converted to
agricultural and urban use. Id. The area provides a home for wading birds, as well as for
threatened and endangered species such as wood storks, snail kites, bald eagles, Florida
panthers, and American crocodiles. Id. at 6073.
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n1 Citations to the Administrative Record appear as "A.R. at ."
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The Everglades extends south from Lake Okeechobee to Florida Bay. Id. at 6073-74. At
its northern end is the EAA -- 553,000 acres [*6] of land used to farm sugar cane,
vegetables, and sod. Id. Also part of the area are the Arthur R. Marshall
Loxahatchee National Wildlife Refuge ("the Refuge"), Everglades National Park
"the Park"), and several water conservation areas -- large tracts of land set aside
to help provide flood protection, water supply storage, and environmental resource
protection to the Everglades. Id.
C. The Clean Water Act
Congress passed the CWA, 33 U.S.C. §§ 1251-1376, in 1972 to "restore and maintain the
chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a).
Its goal was to eliminate the discharge of all pollutants into navigable waters by 1985.
Id. at § 1251(a)(1). While the EPA and the states share duties in achieving this
still-unmet goal, primary responsibility for establishing appropriate water quality
standards rests with the states. Id. at § 1251(g); NRDC v. U.S. EPA, 16 F.3d 1395, 1399
4th Cir. 1993).
The CWA requires each state to adopt water quality standards and review them at least
once every three years. 33 U.S.C. § 1313. States must first classify the uses for each
body of water, then determine the level of water [*7] quality necessary to protect
those uses. Id. The standards must include three components: (1) the designated use(s)
for each body of water, such as recreational, agricultural, or industrial; (2) water
quality criteria -- specific limits on pollutants to protect the designated uses
-- expressed either as a narrative standard or a numeric concentration level; and (3)
an antidegradation policy to protect existing uses and high-quality water. Id. See
also 40 C.F.R. § 131 (EPA regulations enforcing the CWA).
If a state changes its water quality standards, it must submit them to the EPA. 33
U.S.C. § 1313(c)(2)(A). The EPA must approve the standards within 60 days, or
disapprove them within 90 days. Id. at § 1313(c). If the EPA disapproves the state's
new standards, the agency has an additional 90 days to promulgate substitute standards,
unless the state first comes up with standards that meet with EPA approval. Id. Thus,
the EPA must review any new state standards, but has discretion whether to approve or
disapprove them. Id. The EPA also has discretion under the CWA to promulgate new
standards for a state at any time "the Administrator determines that a revised [*8]
or new standard is necessary to meet the requirements of this chapter." Id. at
§ 1313(c)(4)(B).
The CWA also establishes the National Pollutant Discharge Elimination System ("NDPES")
permit program. Id. at § 1342. Under this program, either the EPA or states that have
received EPA approval administer permits to specific entities that discharge chemicals
into the nation's waters. Id. These entities -- industrial companies, for example --
are known as point sources. Id. Each permit identifies the types and amounts of
pollutants that a point source may discharge. Id.
Other types of pollution, such as agricultural runoff, are termed nonpoint sources and
are not subject to the NDPES permit program or any other direct EPA regulation. Id.
at §§ 1342, 1352(14). See also Oregon Natural Resources Council v. U.S. Forest Serv.,
834 F.2d 842, 849 (9th Cir. 1987). Instead, the CWA leaves regulation of nonpoint
sources to the states by encouraging them to develop area-wide waste treatment management
plans. 33 U.S.C. § 1288. But although the EPA does not directly regulate nonpoint sources,
state water quality standards still apply to them. A.R. at 11364-65. The [*9] EPA's
Water Quality Standards Handbook states that nonpoint sources may not cause a violation
of state water quality standards. Id. Finally, the CWA grants individual citizens the
right to sue the EPA to force the agency to perform any CWA-mandated duty. 33 U.S.C.
§ 1365(a)(2). This citizen suit provision is the statute under which the Tribe is suing.
D. Florida's Water Quality Standards
Florida approved the water quality standards applicable to this action in 1989. A.R. at
11398. The EPA approved those standards in 1991 and 1992. n2 Id. at 11398-99. The relevant
provisions are found in Florida Statutes Chapter 403, Florida Administrative Code ("FAC")
Chapter 62-302, and FAC Chapter 62-4. Id. at 10851, 11157.
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n2 Following passage of the EFA, Florida revised its water quality standards in 1995.
A.R. at 11399. The EPA approved those minor revisions in May 1995. Id. The 1989 and 1995
standards are essentially the same.
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Consistent with the CWA and EPA regulations, FAC Chapter 62-302 contains [*10] five
categories of designated water uses, water quality criteria necessary to protect those
uses, and an antidegradation policy. FAC § 62-302.400 (classifying waters); § 62-302.530
listing surface water quality criteria); and § 62-302.300 (antidegradation policy).
Florida's five classes of water are: I -- potable water supplies; II -- shellfish
propagation or harvesting; III -- recreation, propagation and maintenance of a healthy,
well-balanced population of fish and wildlife; IV -- agricultural water supplies; and
V -- navigation, utility and industrial use. Id. at § 62-302.400(1). The state has
designated Everglades waters as Class III waters, entitling them to the protection
necessary to sustain recreation and a healthy, well-balanced population of fish and
wildlife. Id. at § 62-302.600.
The focus both of this litigation and overall Everglades cleanup has been the levels of
phosphorous and other nutrients running from EAA farms into Everglades waters. See
generally A.R. at 6092-6101. The water quality criteria for nutrients -- the level
of nutrients that can be present in Everglades waters and still have those waters meet
Class III standards -- are stated [*11] as a narrative standard, rather than specific
numeric concentration levels:
(48)(a) Nutrients -- The discharge of nutrients shall continue to be limited as
needed to prevent violations of other standards contained in this Chapter.
Man-induced nutrient enrichment (total nitrogen or total phosphorous) shall
be considered degradation in relation to the provisions of Sections 62-302.300,
62-302.700, and 62-4.242 F.A.C.
(48)(b) Nutrients -- In no case shall nutrient concentrations of a body of water
be altered so as to cause an imbalance in natural populations of aquatic flora
and fauna.
FAC § 62-302.530.
The state has designated waters in the Park and the Refuge as Outstanding Florida Waters.
Id. at §§ 62-302.700(2)(a), (9)(a) and (9)(b). State standards do not allow water quality
in those areas to be degraded beyond the level that existed in 1979, with certain minor
exceptions not relevant here. Id. at §§ 62-302.700(1), (7), and (8), and 62-4.242.
Florida's antidegradation policy also speaks specifically about nutrients. A.R. at 10854:
(3) The Department finds that excessive nutrients (total nitrogen and total
phosphorous) constitute one of the most [*12] severe water quality problems facing
the State. It shall be the Department's policy to limit the introduction of
man-induced nutrients into waters of the State. Particular consideration shall be
given to the protection from further nutrient enrichment of waters which are
presently high in nutrient concentrations or sensitive to further nutrient
loadings....
(4) Existing uses and the level of water quality necessary to protect the existing
uses shall be fully maintained and protected....
(5) Pollution which causes or contributes to new violations of water quality
standards or to continuation of existing violations is harmful to the waters of the
State and shall not be allowed.
FAC § 62-302.300.
II. EVERGLADES RESTORATION
A. General Deterioration and Cleanup Efforts
Historically, the fresh water that nourished the Everglades began its journey in the upper
Kissimmee chain of lakes. A.R. at 10369. Water collected in this basin and slowly snaked
its way south through the winding Kissimmee River and adjacent wetlands, eventually
reaching Lake Okeechobee. Id. Water overflowed the lake's southern marsh banks to fill the
Everglades wetlands. Id. Combined with [*13] rainfall, this water slowly traveled south
until it reached the Atlantic Ocean, Florida Bay, and the Gulf of Mexico. Id.
The Everglades became an oligotrophic wetlands system -- one earmarked by low levels of
nutrients and low productivity. Jones Depo. of June 2, 1998, at 23-24; A.R. at 1689-90.
Phosphorous is the defining characteristic of the Everglades, in that the system contains
very low levels of it. Jones Depo. at 23-26; A.R. at 1689-90. Even small changes in
phosphorous levels can cause vast changes and imbalances in the entire system. Id.
Development throughout this century drastically altered both the water-flow patterns and
water quality of the Everglades. A.R. at 1689-93, 1772-79, 10369. Developers drained
marshes at the eastern edges of the Everglades to make room for cities. Id. at 10369. The
federal and state governments built a series of canals, pumps, and levees to redirect
water away from coastal communities and control flooding. Id. Water runoff from farms in
the EAA contained excessively high levels of phosphorous and other nutrients. Id. at
1692-93, 1772-73.
The combination of reduced water flow and increased nutrients resulted in extreme [*14]
changes to the Everglades ecosystem. Id. at 1814-23, 10369. Certain wading bird
populations declined, non-native plants such as cattails began crowding out native
sawgrass, and microorganisms that form the base of the Everglades food chain were altered.
Id. Florida undertook cleanup efforts throughout the 1980s, but in 1988 the federal
government sued the state and the South Florida Water Management District
"the District"), alleging those agencies were not enforcing water quality standards in
the Refuge and the Park. Id. at 6089-97, 10359. The lawsuit alleged that agricultural
water runoff entering the Refuge and the Park violated state water quality standards.
Id. at 6097.
B. The Settlement
In July 1991, the parties to the lawsuit reached a comprehensive settlement designed to
institute a massive Everglades cleanup effort, with the goal of insuring that all
Everglades waters met Florida's Class III standards by 2002. Id. at 6100-01. The Hon.
William Hoeveler approved the settlement as a consent decree in 1992. See United States
v. South Fla. Water Management Dist., 847 F. Supp. 1567 (S.D. Fla. 1992); aff'd in part,
28 F.3d 1563 (11th Cir. 1994). [*15]
In the settlement agreement, the State of Florida acknowledged that water flowing from
the EAA into the Refuge and the Park contained excess nutrients that violated Florida's
water quality standards by causing imbalances in the natural aquatic flora and fauna.
Settlement Agreement at 7-8. These violations were so severe that they threatened "the
ecological integrity and ultimately the survival of the Park and Refuge." Id. at 7. The
water flowing from the EAA was causing "potentially devastating degradation" of
Everglades waters, and "threatens to devastate the ecosystems in the Park and Refuge."
Id. at 8. The settlement established a schedule for insuring that EAA runoff into the
Everglades met state water quality standards by 2002. A.R. at 6100-01; Settlement
Agreement at 9. The agreement required the state and the District to undertake a number
of steps to achieve this goal. A.R. at 6100-01; Settlement Agreement at 8-28.
III. THE EVERGLADES FOREVER ACT AND THIS CASE
A. The Act
As the settlement agreement required, the District developed a plan to reduce phosphorous
loads. A.R. at 10359. However, several farming groups filed an administrative challenge
to the [*16] plan with the state, contending it was too harsh on them. Id. at 6129,
10360. In addition, other entities filed thirty-six lawsuits challenging the cleanup plan.
Id. at 10360. In an attempt to resolve the litigation and develop a comprehensive cleanup
plan once and for all, the Florida Legislature passed the Everglades Forever Act in 1994
codified at Fla. Stat. § 373.4592). Id. at 6133, 10360.
The Legislature found that water flowing into the Everglades contained excessive levels
of phosphorous, which were endangering the area's unique flora and fauna. Fla. Stat.
§ 373.4592(1)(a) and (d). The purpose of the EFA was to "bring to a close 5 years of
costly litigation" and "promote Everglades restoration and protection." Id. at § 373.4592
1)(c) and (d). The EFA defines the Everglades Protection Area to include the Refuge, the
Park, and the water conservation areas. Id. at 373.4592(2)(h). The Act contains many of
the same requirements as the settlement agreement, but establishes different timetables.
See generally Fla. Stat. § 373.4592.
Section 4 of the EFA directs the District to establish the Everglades Construction
Program, which contains some eighteen [*17] separate projects. Id. at § 373.4592(4)(a);
A.R. at 2622. The primary component of the project is the construction of six Stormwater
Treatment Areas, or STAs, by 2003. Id. The STAs are 44,000 acres of man-made marshes
designed to filter phosphorous and other nutrients out of the EAA water runoff before it
flows into the Everglades. A.R. at 2622.
The EFA also directs the District, in conjunction with EAA farmers, to develop and enforce
a regulatory program known as Best Management Practices, or BMPs. Fla. Stat. § 373.4592(4)
f). BMPs are farming practices, such as stormwater retention, sediment control, and
restrictions on use of fertilizers and pesticides, that the District determines to be the
most effective way of "improving water quality in agricultural discharges to a level that
balances water quality improvements and agricultural productivity." Id. at § 373.4592(2)
a). Another provision establishes an Agricultural Privilege Tax on farmers doing business
in the EAA and nearby areas. Id. at § 373.4592(6); A.R. at 2709. Farmers who use BMPs and
achieve at least a 25 % reduction in the amount of phosphorous coming from their land are
entitled to a reduction [*18] in the tax. Id.
The most controversial EFA provision is its program for reducing phosphorous loads to the
point where they no longer cause an imbalance in the natural aquatic flora and fauna. Like
the settlement agreement, the EFA establishes a long-term research and monitoring program
to develop a numeric concentration level of phosphorous that will not cause an imbalance.
Fla. Stat. § 373.4592(4)(d) and (e). However, the deadlines are different. Id. Under the
EFA, the state and the District "shall employ all means practicable to complete by
December 31, 1998" all necessary research to numerically interpret the existing narrative
standard. Id. at § 373.4592(4)(e). However, the EFA does not require the agencies to
finish their research until 2001, and does not require the state to develop a numeric
concentration level until 2003. Id. If the state does not develop a number by then, the
default level of phosphorous allowed in the Everglades Protection Area will be 10 parts
per billion (ppb). Id.
Perhaps most significantly, EAA farmers do not have to comply with the numeric level until
December 31, 2006. n3 Id. at § 373.4592(4)(f). The EFA is quite [*19] clear that farmers
who implement BMPs and pay their Agricultural Privilege Tax "shall not be required to
implement additional water quality improvement measures, prior to December 31, 2006...."
n4 Id.; A.R. at 2622, 3476, 3481-83. In fact, it is not until that date that anyone
discharging phosphorous into the Everglades must comply with state water quality
standards. Fla. Stat. § 373.4592(4)(f) ("as of [December 31, 2006], no permittee's
discharge shall cause or contribute to any violation of water quality standards in the
Everglades Protection Area"), § 373.4592(10) ("by December 31, 2006, the department and
the district shall take such action as may be necessary so that water delivered to the
Everglades Protection Area achieves state water quality standards...").
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n3 In some cases, farmers have to meet an interim discharge limit of 50 ppb. Jones Depo.
at 84; McGhee Depo. at 126; A.R. at 2622, 3476, 3481-83.
n4 The sentence goes on to state "other than those required by subparagraph 2." However,
subparagraph 2 imposes no water quality standard limits on farmers. It merely requires
farmers to implement BMPs that consider water quality standards.
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In addition to the language of the EFA, there are representations throughout the case
record that water quality standards do not have to be met until 2006. Depo. of Fritz
Wagener of the EPA at 26 ("Q: So simplified what you're saying is that perhaps
water quality standards are not being met but they'll be met in the year 2006? A: I
think that's a short characterization of that, yes."); Depo. of Robert McGhee of the EPA
at 142 ("We reviewed the compliance schedules in the Everglades Forever Act and we
recognized that water quality standards have been violated, are being violated and will
continue to be violated until all of the actions that are necessary to prevent those
violations have been taken."), 154-55 ("it directs them to be in compliance
with water quality standards by such and such a date. So they are continually up to that
point in a violation mode of water quality standards. Q: It allows them to be in a
violation mode until the year 2006, right, basically? A: Yes."); A.R. at 203 testimony of
Frank Nearhoof of the Florida Department of Environmental Protection) ("Q: And structures
that are not in compliance do not have to be in compliance until 2006 under the statute.
Isn't [*21] that correct? A: That's correct"), 3989, 4013, 4105, 4107 (Department of
Environmental Protection report) (intent of the EFA is that by December 31, 2006, the
state and the District shall take necessary action so that water delivered to the
Everglades complies with state water quality standards), 6150 (U.S. Army Corps of
Engineers report) ("the District will ... ensure that all discharges, from both public and
private interests, to the Everglades achieve compliance with applicable state water
quality standards by December 31, 2006").
B. Procedural History of this Case
On June 21, 1994, a month after the EFA became law, the Tribe notified the EPA that the
Act changed Florida's water quality standards because it permitted discharges of
phosphorous above the levels that cause an imbalance in the natural aquatic flora
and fauna until 2006. Miccosukee Tribe of Indians of Fla. v. United States, 105 F.3d 599,
601 (11th Cir. 1997). The Tribe also alleged the EFA violated the Clean Water Act's
antidegradation standards, and that Florida had failed to comply with the CWA by not
submitting the EFA to the EPA for review. Id. at 601.
On September 15, 1994, the EPA informed the Florida [*22] Department of Environmental
Protection of the Tribe's allegations. Id. The department responded that the EFA did not
change the state's water quality standards. Id. On April 12, 1995, the EPA wrote the
department a letter agreeing with its assessment. Id. However, four weeks prior to the
letter, the Tribe filed the instant action against the EPA under the CWA's citizen suit
provision. Id. The Tribe's complaint sought to compel the EPA to treat the EFA as a
change in state water quality standards, to require Florida to initiate notice and
public hearings on the change, and to find the EFA in violation of the CWA's
antidegradation requirements. Id.
This Court granted the United States' motion to dismiss the case for lack of subject
matter jurisdiction on July 26, 1995. The Court found the EFA had not changed Florida's
water quality standards, and, as a result, the EPA had no mandatory duty to review the
Act. Therefore, the Court concluded it did not have subject matter jurisdiction under the
citizen suit provision because that provision authorizes suits only to enforce the EPA's
mandatory duties.
The Eleventh Circuit subsequently reversed, finding the Court should [*23] not have
relied solely on the state's representations that the Act did not change its water
quality standards. Id. at 602-03. In remanding the case, the Eleventh Circuit held the
Court should have conducted its own factual findings to determine whether the EFA changed
Florida's water quality standards and invoked a mandatory duty of review by the EPA. Id.
Following remand, the EPA undertook the very review of the EFA the Tribe sought to compel.
The agency concluded in January of this year that the EFA does not change the state's
water quality standards. A.R. at 11392-11421. Following intervention of the additional
Defendants and discovery, the parties filed the instant cross motions for summary
judgment.
C. The EPA's Findings
The EPA found that because the EFA does not change Florida's water quality standards, it
is consistent with the CWA. Id. Therefore, the EPA concluded there was no need to
exercise its discretionary duty to promulgate new water quality standards for Florida.
Id.
The primary contention of the EFA's opponents is that the Act changes Florida's water
quality standards by allowing phosphorous discharges into the Everglades that cause
imbalances [*24] in flora and fauna until 2006. The EPA did not agree. It found that
the EFA, in allowing phosphorous discharge limits of 50 ppb or more until 2006, is merely
a compliance schedule for achieving state water quality standards by that date. Id. at
11401-06. See also Wagener Depo. at 114-17; McGhee Depo. at 24-25, 40-41 ("the Act
provides a legislatively provided compliance schedule for bringing existing sources
of pollution into compliance with state water quality standards"), 99-103. According to
the EPA, the state's narrative standard remains in effect until 2006, or such earlier
date as the state numerically interprets that standard. A.R. at 11401 ("it is EPA's
determination that the EFA does not establish new water quality standards or revise
existing standards, and that the previous standards remain in effect for the waters
addressed by the EFA").
Furthermore, even though the EFA gives the state until 2003 to develop a numeric
interpretation of the narrative standard, and gives dischargers until 2006 to comply
with that number, the EPA concluded the Act does not preclude earlier adoption and
enforcement of a numeric standard:
EPA does not agree that the EFA precludes [*25] development of a numeric
criterion until December 31, 2003. Subsections 4(d) and (e) of the Act do provide
a timetable within which certain events are to occur, with respect to research,
monitoring, evaluation of effectiveness of certain measures, consideration of
existing water quality standards applicable to the area and proposal of a rule
establishing a numeric criterion for phosphorous. The dates set forth in the EFA
are, however, "maximum" dates by which certain events have to occur. There is no
indication in the Act that those dates are anything other than deadlines.
A.R. at 11403. Because the dates represent only maximum deadlines, the EPA concluded
that the EFA's schedule for achieving compliance with state water quality standards is
reasonable. McGhee Depo. at 158-59. n5
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n5 The EPA added that "even if arguendo, the EFA did preclude adoption of a numeric
criterion before 2003, that would not change existing standards. It would at most
represent a decision not to revise standards. Such as decision is not one EPA is
required to review ...." A.R. at 11404.
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This conclusion assumes that the Clean Water Act and the accompanying EPA regulations
allow states a reasonable compliance period to meet water quality standards. A.R. at
11409 ("where EPA finds that there is a bona fide effort by the State to develop criteria,
it is consistent with the policies of the Clean Water Act for EPA to give the State a
chance to act ..."); Wagener Depo. at 45-46 ("Q: Do you have internal regulations that
have certain time limits requiring the states to meet their goals? A: No."), 114-17
("there is no specific language in the Clean Water Act which says how long a compliance
schedule should be ... it is something that you have to make judgments on based on each
individual situation"); McGhee Depo. at 158-62:
Q: Does the Clean Water Act have any sort of reasonableness standard with regard to
compliance schedules?
A: Not specifically in the Act that I know of, but ... we do allow in our
regulations states to adopt reasonable compliance schedules and that it's typical
for us in NDPES program to allow up to three years for compliance with adoption of
a new water quality standard.
* * * *
Q: But from where do you draw your authority to [*27] decide what's reasonable?
A: Well, it really goes back to the Act itself, and I think it's in 301(b)(1)(C) of
the Act which really requires that water quality standards be met by July 1977. So
when we construct permits, we require immediate compliance with water quality
standards' base requirements unless the provision of that permit is based on a new
water quality standard where we would allow up to a three-year compliance schedule.
Id. (emphasis added). McGhee, the EPA official who decided that the EFA does not change
Florida's water quality standards, acknowledged that the EPA has no compliance schedules
for anything other than new standards, and that Florida's existing water quality
standards do not allow for compliance schedules. Id. at 161-62 ("Q: The existing water
quality standards in Florida require immediate implementation? A: Yes. Q: There is no
schedule? A: Right. . . . Q: Is there a compliance schedule in the water quality
standard statutes of Florida for anything? A: To my knowledge there are none.").
In making their findings, EPA officials drew a distinction between violations of water
quality standards and revision of the standards. Both EPA [*28] and state officials
repeatedly acknowledged throughout the EFA review that phosphorous discharges into the
Everglades Protection Area violate the narrative standard by causing imbalances in the
natural aquatic flora and fauna. Wagener Depo. at 26, 30-31 ("I can conclude that all of
the criteria that apply to the waters addressed by the EFA, that all water quality
standards provisions including the criteria are not being attained at this time");
McGhee Depo. at 42, 60-62 ("there are violations of water quality standards in the
Everglades"), 76, 99-103 ("the goals of the Clean Water Act are not currently being
attained"), 139-41, 154-57, 168-69, 174; A.R. at 101-02, 108, 110-11, 113-18, 123,
208-09, 479-85, 492-94, 4326, 7603-05, 9592, 9623-25, 9636-38, 9648, 9661-63.
However, the EPA concluded that just because standards are being violated does not mean
the standards have changed. Wagener Depo. at 63, 135-36 ("there are situations where
applicable criteria may not be met, but those are still part of the applicable water
quality standards for that water body"), 141; McGhee Depo. at 30-32, 50-56 ("you may have
a designated use and the water body may or may not be meeting that use at [*29] any
particular time, but that is not relevant to whether or not the standard has changed"),
79-83 ("causing a violation of water quality standards or a water quality standard
violation is not a change in water quality standards; it's a change in water quality"),
133. Because EPA officials concluded the EFA retains the existing narrative standard for
phosphorous and other nutrients, they decided the Act does not change water quality
standards, even though actual phosphorous levels still cause imbalances in flora and
fauna. Id.
Another bone of contention by EFA opponents is Section 4(f)(3) of the Act, which states
that farmers who implement BMPs and pay their Agricultural Privilege Tax "shall not be
required to implement additional water quality improvement measures, prior to December
31, 2006, beyond the requirements of subparagraph 2." Fla. Stat. § 373.4592(4)(f)(3). The
Tribe contends this represents a de facto change in water quality standards because (1)
everyone involved with the EFA acknowledges that agricultural runoff is still causing an
imbalance in Everglades' flora and fauna, and (2) by allowing that imbalance to continue
until 2006, the EFA, in effect, sets new standards. [*30]
The EPA, however, found otherwise. A.R. at 11409-11. First, the agency found the
qualifying language, "beyond the requirements of subparagraph 2" requires farmers to meet
the narrative water quality standards until 2006. Id. at 11410. That's because
subparagraph 2 n6 requires agricultural interests to implement BMPs that "address all
water quality standards" in the Everglades. Id. The EPA concluded that the combination
of Sections 4(f)(3) and 4(f)(2) mean farmers do not have to meet water quality standards
beyond existing ones until 2006. Id.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Subparagraph 2 is Section 4(f)(2) of the Act.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Second, because agricultural runoff is considered a nonpoint source not subject to direct
EPA regulation, the agency concluded that even if the combination of the two sections
exempted EAA farmers from meeting state water quality standards until 2006, the EPA would
be powerless to force the farmers to meet the standards. Id. at 11411 ("even if EPA were
to promulgate a nutrient standard, it could not [*31] enforce the standard against such
agricultural sources under the Clean Water Act"). Because of these limits on the EPA and
the "ambitious BMP program already in place to address attainment of water quality
standards as a result of the EFA" the EPA concluded it should not try to enforce any
stricter standard on agricultural runoff until 2006. Id.
Next, the EPA rejected the claim of EFA opponents that the Act changes Florida's water
quality standards by failing to institute an immediate phosphorous discharges limit of
10 ppb. Id. at 11407-09. Although a number of scientists have concluded that 10 ppb is
the maximum level of phosphorous allowable to maintain a balance in the natural flora
and fauna (Jones Depo. at 53-58, 60-61, 97-98; A.R. at 492-94, 10219-10229, 11093-95),
many others say the standard is scientifically uncertain. Nearhoof Depo. at 116-17; Ex.
D to Intervenors' response at 2-5; Jones Depo. at 17, 65; A.R. at 3503-04, 6765-66,
7544-46, 7571. Because of this uncertainty, the difficulty of numerically interpreting
the narrative standard, and the extensive research and monitoring program underway, the
EPA concluded it would be unreasonable to promulgate a numeric [*32] standard sooner
than the EFA requires. A.R. at 11409.
DISCUSSION
I. THE STANDARD OF REVIEW
A moving party is entitled to summary judgment only where no genuine issue of material
fact exists and the party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). On a motion for
summary judgment, a court must view all the evidence in a light most favorable to the
non-moving party. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330
(11th Cir. 1988). All reasonable doubts as to the facts are to be resolved in favor of
the party opposing summary judgment. United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991). If a reasonable fact finder evaluating the evidence
could draw more than one inference from the facts, and if that inference introduces a
genuine issue of material fact, then the court should not grant summary judgment.
Augusta Iron and Steel Works v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.
1988). If reasonable minds can differ on the inferences arising from the facts, then a
court should deny summary judgment. Id. [*33] at 856.
While the burden on a party seeking summary judgment is great, the opposing party has a
duty to present affirmative evidence in order to defeat a properly supported motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202,
106 S. Ct. 2505 (1986). A mere sliver of evidence in favor of the party opposing the
motion, or evidence that is merely colorable or not significantly probative, is
insufficient to defeat a properly supported motion. Id. Despite the presumption in favor
of the non-moving party, the Court must bear in mind that the purpose of Rule 56 is to
eliminate the needless delay and expense of unnecessary trial. Celotex, 477 U.S. at
322-23.
II. JURISDICTION
A. The Eleventh Circuit Mandate
As previously discussed, this Court originally granted the United States' motion to
dismiss the case for lack of subject matter jurisdiction, holding that because the EFA
did not change Florida's water quality standards, the EPA had no mandatory duty to
review the Act. In reversing and remanding, the Eleventh Circuit held that because the
EPA had not reviewed the EFA, the Court should have conducted its own factual findings
[*34] to determine whether the Act changed Florida's water quality standards:
In the absence of action by the Administrator, we conclude that the district court
should have conducted its own factual findings. Because citizen suit jurisdiction
depended on whether or not the EFA constituted new or revised state water quality
standards, invoking a mandatory duty of the Administrator, the district court had
to decide independently the effect of the EFA on existing state standards. ...
Without determining the effect of the EFA, the district court could not decide, in
this case, whether jurisdiction existed under the CWA citizen suit provision.
Miccosukee, 105 F.3d at 603.
Circumstances have since changed. The EPA undertook the review the Tribe originally
sought to compel, and found the EFA does not change the state's water quality standards.
The United States and the other Defendants argue the EPA review has satisfied the
mandate, because the Eleventh Circuit's order to make factual findings on the effect of
the EFA was directed only at the issue of whether the EPA had a mandatory duty to review
the Act. Since the agency has conducted a review and found the EFA does not change [*35]
state water quality standards, the Court need not make any further factual findings on
the effect of the Act, the Defendants argue.
The Defendants further contend that because the EPA has satisfied its mandatory duty to
review the EFA, the Court no longer has jurisdiction over the Tribe's complaint under
the CWA's citizen suit provision. They claim the only way the Tribe may challenge the
EPA's decision that the EFA does not change Florida's water quality standards is through
the Administrative Procedures Act, 5 U.S.C. §§ 701-706 ("the APA").
The Tribe, on the other hand, argues the EPA review is irrelevant in the face of the
mandate. It contends that regardless of the EPA's action, the Court must do what the
Eleventh Circuit has ordered: review the EFA and make factual findings as to its effect
on Florida's water quality standards. Only after the Court has determined whether the
EFA changes those standards, the Tribe argues, can it decide whether it has jurisdiction.
The Tribe overstates the effect of the mandate. It does not require the Court to
independently determine whether the EFA changes Florida's water quality standards under
any circumstances. The key phrase is "in the [*36] absence of action by the
Administrator." The mandate required the Court to make factual findings because the EPA
had not reviewed the Act. Only now the EPA has reviewed the Act. Under those
circumstances, the Court need no longer make its own factual findings, and cannot proceed
under the citizen suit provision of the CWA.
The Tribe's allegation that the EPA ignored its mandatory duty to review the EFA is moot.
The Tribe now is in the position of challenging the sufficiency of the review and the
substance of the EPA's findings, not whether the EPA fulfilled any mandatory duty. The
EPA has no mandatory duty to reach a particular conclusion after reviewing state
standards; it has discretion to approve or disapprove them. National Wildlife Fed'n v.
Browner, 326 U.S. App. D.C. 451, 127 F.3d 1126, 1128-30 D.C. Cir. 1997) (EPA had no
mandatory duty to review state actions that did not change water quality standards);
City of Las Vegas v. Clark County, 755 F.2d 697, 704 (9th Cir. 1985) ("it is within the
discretion and expertise of the EPA, under the CWA, to determine first whether a state
has properly promulgated water quality standards").
The CWA's citizen suit provision [*37] is only available to force the EPA to perform a
mandatory duty, not to challenge the substance of an EPA decision. City of Las Vegas, 755
F.2d at 704; Scott v. City of Hammond, 741 F.2d 992, 995 (7th Cir. 1994) ("the content of
water quality standards cannot ordinarily be challenged through a citizen's suit");
United States Steel Corp. v. Train, 556 F.2d 822, 836 (EPA has discretion whether to
approve state water quality standards). The only way to challenge a decision involving
the EPA's discretion is through the APA. City of Las Vegas, 755 F.2d at 704 (district
court might have jurisdiction to consider challenge to EPA's approval of Nevada's water
quality standards under the APA); Scott, 741 F.2d at 995 ("the only recognized avenue for
challenge to the substance of EPA's action taken with respect to [state] submissions is
a suit for judicial review under the Administrative Procedure Act"); Train, 556 F.2d at
836.
For the foregoing reasons, the Court finds it no longer has jurisdiction to consider
this case under the CWA's citizen suit provision. But that does not end the matter. The
Court has jurisdiction to consider the Tribe's challenge to the results [*38] of the
EPA's review under the APA. Because the parties have extensively briefed the issues and
submitted voluminous factual documentation in support of their motions, the Court has no
trouble ruling on the instant motions under APA standards. As a practical matter,
converting this case to an APA challenge will not affect the outcome because even under
the APA's deferential approach towards federal agencies, the Court finds the EPA's
decision that the EFA does not change Florida's water quality standards is incorrect.
B. The APA Standard of Review
The APA accords great deference to agency actions. Preserve Endangered Areas of Cobb's
History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir. 1996);
Organized Fishermen of Fla. v. Franklin, 846 F. Supp. 1569, 1573 (S.D. Fla. 1994). This
is true even at the summary judgment stage. Cobb's History, 87 F.3d at 1246. The APA
provides that a reviewing court shall "hold unlawful and set aside agency action,
findings, and conclusions found to be -- (A) arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law ...." 5 U.S.C. § 706(2).
Under this standard, a reviewing court should overturn [*39] an agency action only
when it concludes there has been a clear violation of duty by agency officials. Latecoere
Int'l, Inc. v. U.S. Dept. of the Navy, 19 F.3d 1342, 1356 (11th Cir. 1994). If the court
finds a reasonable basis for the agency's action, it should "stay its hand even though it
might, as an original proposition, have reached a different conclusion ...." Id. at 1356
(quotation and citation omitted). The Court should not generally conduct a de novo inquiry
nor reach its own conclusions. Cobb's History, 87 F.3d at 1246 (citing Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 744, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985)). Rather,
the court should decide on the basis of the record the agency provides whether there is a
rational basis for the agency's decision. Lorion, 470 U.S. at 744.
Conversely, if the record before the court does not support the agency action, if the
agency has not considered all relevant factors, or if the reviewing court cannot evaluate
the challenged action on the basis of the record before it, it may set aside the
agency decision. Cobb's History, 87 F.3d at 1246. In those circumstances the usual action
for the court is to [*40] remand the case to the agency for further explanation or
investigation. Id. To determine whether an agency action is arbitrary and capricious:
The reviewing court must consider whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error of judgment. This
inquiry must be searching and careful, but the ultimate standard of review is a
narrow one.... Administrative decisions should be set aside in this context ...
only for substantial procedural or substantive reasons as mandated by statute ...
not simply because the court is unhappy with the result reached. The agency must
use its best judgment in balancing the substantive issues. The reviewing court is
not authorized to substitute its judgment for that of the agency concerning the
wisdom or prudence of the proposed action.
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541-42 (11th Cir. 1996) (quoting North
Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir. 1990)). To prove an
agency's decision was arbitrary and capricious, the challenging party must show the
record is devoid of reasonable evidence supporting the agency's decision. Franklin,
[*41] 846 F. Supp. at 1573.
Ordinarily, a court should confine its review to the administrative record, which
consists of all materials before the agency at the time of decision. Id; James Madison
Ltd. v. Ludwig, 317 U.S. App. D.C. 281, 82 F.3d 1085, 1095 (6th Cir. 1996),
cert. denied, 519 U.S. 1077, 136 L. Ed. 2d 676, 117 S. Ct. 737 (1997). Review beyond the
administrative record is justified if (1) the record does not adequately explain the
agency's action, (2) it appears the agency relied on materials not included in the record,
(3) it is necessary to clarify complex, technical terms involved in the decision, or (4)
the challenging party has made a strong showing of bad faith or improper behavior by the
agency. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir. 1988); Franklin,
846 F. Supp. at 1573.
In this case, the Court has considered evidence beyond the administrative record -- the
depositions taken after the EPA's review. The Court finds this necessary because they
provide a better explanation of the EPA's decision, and because they helped clarify
complex, technical terms dealing with water quality criteria that were integral to the
EPA's conclusions. Under Hodel [*42] and Franklin, this is a permissible use of
materials outside the administrative record.
III. THE EPA'S CONCLUSION THAT THE EFA DOES NOT CHANGE FLORIDA'S WATER QUALITY
STANDARDS IS ARBITRARY AND CAPRICIOUS
A. The Act is not just a Compliance Schedule
The EPA concluded that rather than changing Florida's water quality standards, the EFA
is a reasonable compliance schedule for achieving standards by 2006. A.R. 11401-06. As
support for this view, the EPA cites Section 11(a) of the Act, which states that "Except
as otherwise provided in this section, nothing in this section shall be construed: 1. As
altering any applicable state water quality standards." According to the EPA, this
language means that until the state enforces a numeric standard for nutrients, the
narrative standard remains in effect.
This conclusion contravenes the language of Section 11(a) and other portions of the EFA.
First, Section 11(a) states "except as otherwise provided in this section ...." To
interpret this language, it is necessary to understand the Florida Statutes' numbering
system, described in the preface to each volume of the statutes. Under the system, the
three numbers to the left of the [*43] decimal point in a statute denote a chapter, the
three or four numbers to the right denote a section, and the numbers in parentheses denote
subsections. Hence, Section 11(a) is actually a subsection, because its complete title is
373.4592(11)(a). Thus, the word "section" here refers not just to Section 11(a) of the
Act, but to the entire Act -- Chapter 373, Section .4592 of the Florida Statutes.
Therefore, the interpretation of Section 11(a) is that except as provided elsewhere in the
EFA, nothing in the EFA alters applicable water quality standards. As discussed below,
language elsewhere in the EFA alters water quality standards by effectively suspending
enforcement of the narrative standard for nutrients until 2006. Therefore, the EPA's
conclusion as to the effect of Section 11(a) is arbitrary and not supported by the record.
Section 4(f) of the Act exempts farmers in the EAA from having to meet water quality
standards until 2006. n7 Subsection 4(f)(3) flatly states that farmers within the EAA
and nearby areas who have paid their Agricultural Privilege Tax and have implemented BMPs
"shall not be required to implement additional water quality measures, prior to December
31, 2006 [*44] ...." There is unanimous agreement that even today, those farmers are
discharging phosphorous into the Everglades at levels that cause an imbalance in the
natural aquatic flora and fauna. Wagener Depo. at 26, 30-31 ("I can conclude that all of
the criteria that apply to the waters addressed by the EFA, that all water quality
criteria standards provisions including the criteria are not being attained at this
time."); McGhee Depo. at 42, 60-62 ("there are violations of water quality standards in
the Everglades ... violations of water quality standards, the way I would describe it,
means that the goals of the Clean Water Act are not being met"), 76, 99-103, 139-41 ("we
recognized that water quality standards in the Everglades have been violated, are being
violated, and will continue to be violated"), 154-57, 168-69, 174; A.R. at 186-88, 3865,
3876, 3880-81, 6745-46, 6800, 9592, 9623-25, 9648, 9661-63, 10219-29.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 See Section C, infra, for a more complete discussion of the EPA's conclusion that
Section 4(f) does not exempt farmers from meeting the narrative standard until 2006.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*45]
By not requiring farmers to implement additional water quality measures until 2006, the
EFA allows those discharges of phosphorous that violate Florida's narrative standard for
nutrients to continue until 2006. This is not a compliance schedule; it is a de facto
suspension of; and therefore a change in, water quality standards. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 The fact that in some cases farmers have to meet an interim phosphorous discharge
level of 50 ppb does not change this conclusion. State and federal authorities have
stated that levels of 50 ppb cause an imbalance in natural flora and fauna. A.R. at
492-94 (1992 report of state scientist Frank Nearhoof) ("the weight of evidence ...
indicates that the total phosphorous concentrations ultimately necessary to fully
achieve and maintain compliance with applicable Class III criteria are well below
50 ppb"), 6138 (Army Corps of Engineers' report indicating discharges of 50 ppb could
lead to further cattail expansion), 9592, 9623-25, 9636-38, 9648, 9661-63. Thus, even
if the EFA established a discharge limit of 50 ppb throughout the Everglades, it still
would represent a change in Florida's water quality standards.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*46]
Furthermore, neither the Clean Water Act nor Florida state law authorize compliance
schedules for achieving state water quality standards. Therefore, even if the Court were
to view the EFA as a compliance schedule, it would represent a change in state water
quality standards and would violate the CWA. First, water quality standards in Florida
before the EFA required immediate implementation. See generally FAC § 62-302; McGhee
Depo. at 161-62 ("Q: The existing water quality standards in Florida require immediate
implementation? A: Yes. Q: There is no schedule? A: Right.... Q: Is there a compliance
schedule in the water quality standard statutes of Florida for anything? A: To my
knowledge there are none."). It would change state standards, then, to say dischargers
do not have to immediately comply with water quality criteria.
In addition, federal law does not authorize anything like a twelve-year compliance
schedule, which is what the EFA would be if one regarded it as a schedule (the Act took
effect in 1994, but compliance is not required until 2006). The Clean Water Act
originally required all states to meet water quality standards by 1977. McGhee Depo. at
43, 159. The EPA, [*47] in its regulations, allows states three years to comply with
new water quality standards. Id. However, if as the EPA maintains, the EFA is not a new
standard, then there should be no need for a three-year compliance schedule. And if it is
a new standard, there is nothing in the record showing that the CWA or the EPA allow
states twelve years to comply with their water quality standards. n9 Hence, the EPA's
conclusion that the EFA represents a reasonable compliance schedule is not supported by
the administrative record, and is therefore arbitrary and capricious.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 The language of the EFA does not support the EPA's conclusion that Florida could adopt
a numeric standard for nutrients and require compliance with it before 2006. Section 4(f)
(3) exempts farmers and other dischargers from complying with any standard until that
date.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
B. Violation of Existing Standards Versus Establishment of New Standards
Another conclusion the EPA drew is that just because water quality standards are being
violated [*48] does not mean the standards have changed. This would be true for the EFA
if the language of the Act did not specifically authorize violations of the narrative
standard for nutrients until 2006. However, as detailed throughout this opinion, the Act
authorizes such violations. Section 4(f)(3) authorizes farmers to discharge levels of
phosphorous and other nutrients that cause imbalance in flora and fauna into the
Everglades until 2006. In addition, Section 4(f)(4) states that by December 31, 2006, no
one holding a discharge permit "can contribute to any violation of water quality standards
in the Everglades Protection area." The impact of this language is that until 2006,
entities holding a discharge permit may violate water quality standards.
This language does not support the EPA's conclusion that there is a difference in this
case between violation of water quality standards and changing the standards. When a
state statute authorizes people to take actions that directly violate an earlier
state law, the only logical conclusion is that the state has changed its law. It would
be as if the state speed limit were "everyone must drive at a safe speed," then the state
passed a law that [*49] said (1) we recognize that everyone is now driving at
unsafe speeds, (2) we will set a speed limit and require everyone to obey it by 2006,
but (3) until then, everyone can keep driving at the same speed they are now, which we
previously have recognized is unsafe. The clear force of that law would be to change the
speed limit, just as the clear force of the EFA is to change state water quality
standards.
C. EFA Section 4(f)(3)
Another EPA finding was that Section 4(f)(3) does not authorize EAA farmers to violate
narrative standards for phosphorous and other nutrients because of qualifying language at
the end of the section. The section states that farmers who have paid their Agricultural
Privilege Tax and have implemented BMPs "shall not be required to implement additional
water quality measures, prior to December 31, 2006, beyond the requirements of
subparagraph 2." Fla. Stat. § 373.4592(4)(f)(3) (emphasis added).
Subparagraph 2 (Section 4(f)(2) of the Act) requires all farmers to implement BMPs that
"address all water quality standards" in the Everglades. Id. at § 4(f)(2). The EPA
reasoned this language meant farmers still had to comply with the narrative standard
[*50] until 2006. However, the overall thrust of Section 4(f)(2) does not support this
interpretation. The section deals with development and state regulation of BMPs, not
establishment and enforcement of water quality standards. The relevant language requires
the state, in conjunction with EAA farmers, "to implement a comprehensive program of
research, testing, and implementation of BMPs that will address all water quality
standards within the EAA and the Everglades Protection Area." This requires nothing more
than developing programs which consider water quality standards. It does not compel
farmers to meet any particular standard, at least until 2006. The logical reading of
Sections 4(f)(2) and (3) together is that farmers who pay their Agricultural Privilege
Tax and implement BMPs do not have to meet any other water quality standards until 2006,
but must ensure the BMPs they implement consider any applicable water quality standards.
This reading of the statute is supported by several EPA and state officials, who
contradicted the EPA's written findings regarding Sections 4(f)(2) and 4(f)(3). Those
officials acknowledged that EAA agricultural runoff continues to violate Florida's
narrative [*51] standard for nutrients, and will not have to meet state water quality
standards until 2006. Wagener Depo. at 26 ("Q: So simplified what you're saying is that
perhaps water quality standards are not being met but they'll be met in the year
2006? A: I think that's a short characterization of that, yes."); McGhee Depo. at 142
("We reviewed the compliance schedules in the Everglades Forever Act and we recognized
that water quality standards have been violated, are being violated and will continue to
be violated until all of the actions that are necessary to prevent those violations have
been taken."), 154-55 ("it directs them to be in compliance with water quality standards
by such and such a date. So they are continually up to that point in a violation mode of
water quality standards. Q: It allows them to be in a violation mode until the year 2006,
right, basically? A: Yes."); A.R. at 203 (Nearhoof testimony) ("Q: And structures that
are not in compliance do not have to be in compliance until 2006 under the statute. Isn't
that correct? A: That's correct."), 3989, 4013, 4105, 4107 (Department of Environmental
Protection report) (intent of the EFA is that by December 31, 2006, the state [*52]
and the District shall ensure that water delivered to the Everglades complies with state
water quality standards), 6150 (U.S. Army Corps of Engineers report) ("the District will
... ensure that all discharges, from both public and private interests, to the Everglades
achieve compliance with applicable state water quality standards by December 31, 2006").
Given those statements, the administrative record does not support the EPA's finding that
EFA Section 4(f)(3) requires EAA farmers to meet state water quality standards before
2006.
D. Point and Nonpoint Sources
The EPA's final conclusion was that the EFA is consistent with the Clean Water Act because
even if the EFA allows agricultural runoff to violate water quality standards, the EPA
does not regulate nonpoint source discharges. A.R. at 11411. While the CWA only allows
the EPA to directly enforce standards against point sources, the CWA still applies to
nonpoint sources. As discussed earlier, the EPA's own Water Quality Standards Handbook
states that nonpoint sources may not cause a violation of state water quality standards.
Id. at 11364-65.
The CWA would be nothing more than a paper tiger if it didn't apply to nonpoint [*53]
sources. It would make no sense to have an act that tightly regulated the sources of some
pollutants, but gave others carte blanche to pollute at will. The congressionally stated
goals of the CWA show it applies to all sources of pollutants. 33 U.S.C. § 1251(a) (CWA
goal is to "restore and maintain the chemical, physical and biological integrity of the
Nation's waters"), § 1251(a)(1) (CWA's goal is to eliminate the discharge of all
pollutants into navigable waters by 1985). Again, the record does not support the EPA's
conclusion that the EFA is consistent with the CWA. By allowing nonpoint sources to
violate state water quality standards until 2006, the EFA violates both the letter and
the spirit of the Clean Water Act.
CONCLUSION
The foregoing discussion demonstrates that the EFA changes Florida's water quality
standards by authorizing continuing violations of the narrative standard for phosphorous
and other nutrients. By allowing continued harmful discharges of nutrients into the
Everglades, the EFA also violates the state's antidegradation policy, which says:
(3) The Department finds that excessive nutrients (total nitrogen and total
phosphorous) [*54] constitute one of the most severe water quality problems facing
the State. It shall be the Department's policy to limit the introduction of
man-induced nutrients into waters of the State. Particular consideration shall be
given to the protection from further nutrient enrichment of waters which are
presently high in nutrient concentrations or sensitive to further nutrient
loadings....
(4) Existing uses and the level of water quality necessary to protect the existing
uses shall be fully maintained and protected....
(5) Pollution which causes or contributes to new violations of water quality
standards or to continuation of existing violations is harmful to the waters of the
State and shall not be allowed.
FAC § 62-302.300. As the EFA allows pollution which continues existing violations of
Florida's narrative standard for nutrients, it violates the state's antidegradation
policy.
For all those reasons, the EPA's finding that the EFA does not change Florida's water
quality standards is arbitrary, capricious, and not supported by the administrative
record. Pursuant to 5 U.S.C. § 706(2), the Court will set aside the EPA's decision.
Normally when a court takes that action, it [*55] should remand the case to the agency
for further explanation or investigation. Cobb's History, 87 F.3d at 1246.
The Tribe asks the Court to bypass that step, and declare that Florida's new nutrient
standard should be 10 ppb. The Court finds that to be an inappropriate remedy, however.
First, although there is a great deal of evidence that 10 ppb is the level at which
imbalances start to occur in the natural aquatic flora and fauna, that evidence is not
undisputed. Some scientists feel the standard could be safely higher. Nearhoof Depo. at
116-17; Jones Depo. at 17, 65; A.R. at 3503-04, 6765-66, 7544-46, 7571. Second, in
reviewing EPA decisions under the CWA, this court "does not sit as a scientific body,
meticulously reviewing all data under a laboratory microscope." NRDC, 16 F.3d at 1401.
Any decisions on the numeric interpretation of Florida's narrative standard for nutrients
are better left to the federal and state authorities best equipped to make them.
Under the CWA, when a state changes its water quality standards, it must submit them to
the EPA for review. The EPA then has 60 days to approve them, or 90 days to disapprove
them. Given the strictures of the APA and the [*56] procedures of the CWA, the most
appropriate action in this case would be for the Court to remand this case to the EPA,
order it to treat the EFA as a change to Florida's water quality standards, and order the
agency to approve or disapprove those changes as the CWA requires. That will end the
Court's involvement in this case. If the Tribe feels aggrieved by any future EPA decision
to approve or disapprove Florida's new standards, it may take the appropriate action.
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the following motions are GRANTED: (1) the Joint Motion by
Defendants United States Sugar Corporation and Sugar Cane Growers Cooperative of Florida
for Leave to File Motion and Accompanying Memorandum of Law in Excess of Twenty Pages
(D.E. # 130); (2) Plaintiff Miccosukee Tribe of Indians of Florida's Motion to File
Summary Judgment Motion and Accompanying Memorandum of Law in Excess of Twenty Pages
(D.E. # 120); (3) the Tribe's Motion to File Oversized Response to D.E. # 117 (D.E. #
137); (4) the Tribe's Motion to File Oversized Response to D.E. # 115 (D.E. # 138); (5)
the Tribe's Motion to File Oversized Reply to United States' Opposition (filed July 27,
[*57] 1998); and (6) the Tribe's Motion to File Oversized Reply to Defendant-Intervenors'
Joint Response (filed July 27, 1998). It is
FURTHER ORDERED AND ADJUDGED that the following motions are DENIED: (1) the Joint Motion
by Defendants United States Sugar Corporation and Sugar Cane Growers Cooperative of
Florida for Summary Judgment (D.E. # 115); and (2) Defendant United States' Motion for
Summary Judgment (D.E. # 117). It is
FURTHER ORDERED AND ADJUDGED that the Tribe's Motion for Summary Judgment (filed July 6,
1998, and not properly docketed by the Clerk's Office) is GRANTED IN PART and DENIED IN
PART. The motion is granted to the extent that the Court finds the Everglades Forever Act
changes Florida's previous water quality standards, and orders Defendant United States
Environmental Protection Agency to comply with its duty under the Clean Water Act to
approve or disapprove those changes.
DONE AND ORDERED in Chambers in Miami, Florida, this 11th day of Sept., 1998.
EDWARD B. DAVIS
CHIEF UNITED STATES DISTRICT JUDGE
FINAL JUDGMENT
THIS MATTER is before the Court on its own initiative. The Court has this day, by separate
order, partially granted [*58] summary judgment in favor of the Plaintiff and against
the Defendants. As there remain no justiciable issues in the case, it is therefore,
ORDERED AND ADJUDGED that judgment is granted in favor of the Plaintiff and against the
Defendants in accordance with the Court's Omnibus Order of this date. This action is
remanded to Defendant United States Environmental Protection Agency to treat the
Everglades Forever Act as a change in Florida's water quality standards. It is
FURTHER ORDERED AND ADJUDGED that the Clerk's Office shall CLOSE THIS CASE. (1) Defendant
United States Sugar Corporation's Motion to Compel Production of Documents (filed July 2,
1998), (2) the Plaintiff's Motion in Limine to Bar Proposed Testimony
(filed July 6, 1998), (3) Defendant United States' Motion to Strike Portion of Affidavits
(filed July 24, 1998), and (4) the Plaintiff's Motion to Accept Proposed Joint Pretrial
Stipulation (filed August 3, 1998), and all other pending motions not otherwise addressed
are DENIED AS MOOT.
DONE AND ORDERED in Chambers in Miami, Florida, this 11th day of Sept, 1998.
EDWARD B. DAVIS
CHIEF UNITED STATES DISTRICT JUDGE