Introduction

The Everglades Litigation Collection contains pleadings, hearing and deposition transcripts, exhibits and document productions from over fifty lawsuits. The major portion of its contents were gathered from two large-scale civil actions:

•  United States v. South Florida Water Management District, No. 88-1886-CIV-HOEVELER (S.D. Fla.);  and            

•  Cooperative v. South Florida Water Management District, No. 92-3038; 3039; 3040, (Fla. DOAH)        

The original federal lawsuit

Together, they "constitute the southernmost and northernmost remnants of the historic Everglades," ²

The United States alleged that ENP and LNWR were losing native plant and animal habitat communities due to increased nutrient loading from agricultural runoff. Moreover, according to pleadings filed by the United States, for more than a decade, Florida regulators had ignored evidence of worsening conditions in the Park and Refuge, thereby avoiding confrontation with powerful agricultural interests. ³

United States v. South Florida Water Management District, 847 F. Supp. 1567 (S.D. Fla. 1992), aff'd in part and rev'd in part, remanded, 28 F.3d 1563 (11^th Cir. 1994), cert. denied, 115 S.Ct. 1956 (1995), was an historic effort on the part of the federal government to protect the ecological integrity of the Park and Refuge from the nutrient-polluted water which, the United States alleged in its moving papers, would eventually destroy them if not controlled.

The lawsuit, which became known as the Everglades Case, received national news coverage. The law library's Everglades Litigation Collection contains over 1,400 pleadings filed with the federal district court,  transcripts from depositions of 65 expert witnesses and from over 20 court hearings, and hundreds of thousands of pages from documents produced during the course of discovery in this case alone.

 Dense cattails have infested over 6,000 acres of LNWR
(see man standing right-center for perspective).

Credit: S.D. Jewell/ USFWS

The Settlement Agreement in the Federal Action

In 1991, after two and one-half years of litigation, the United States and the State of Florida reached a settlement agreement that recognized the severe harm the ENP and LNWR had suffered and would continue to suffer if remedial steps were not taken. The 1991 Settlement Agreement, entered as Consent Decree by Judge Hoeveler in 1992, 847 F. Supp. 1567 (S.D. Fla. 1992) sets out in detail the steps the State of Florida would take over the next ten years to restore and preserve water quality in the Everglades:

1. Form of the Agreement. The settlement is implemented by a Settlement Agreement and Order. The Agreement includes a main body as well as detailed technical appendices. The Order, issued by the district court, approves the Agreement, incorporates its terms and requires compliance with those terms. The district court retains jurisdiction over the litigation, allowing the parties to seek judicial intervention under the appropriate circumstances.

2. Commitment on water quality and water quantity. The Agreement contains a fundamental commitment by all parties to achieve the water quality and water quantity needed to preserve and restore the unique flora and fauna of the Park and Refuge. Thus, the Agreement broadly requires the SFWMD and DER (now DEP) to take such action as is necessary to achieve all state water quality standards in the Park and Refuge by July 1, 2002. The Agreement further requires the SFWMD to mitigate reductions in the quantity of water entering the Park and Refuge due to efforts to improve water quality.

3. Interim and long-term total phosphorus limits. The Agreement establishes interim and long-term total phosphorus concentration limits for Everglades National Park and Loxahatchee National Wildlife Refuge.  The interim limits, to be achieved by July 1, 1997, are established to ensure progress toward meeting the long-term limits in the year 2002.  The long-term limits are intended to ensure the restoration and maintenance of the native flora and fauna in the Park and Refuge. The Agreement also calls ultimately for numerical interpretation and implementation in the Park and Refuge of Class III Water Quality criteria, if those numerical interpretations are more stringent than the long-term limits set forth in the Agreement.

4. Remedial programs. The agreement establishes two remedial programs:  
"stormwater treatment areas" (STAs) and a regulatory program. The STAs are large, flow-through water treatment marshes designed to treat all agricultural drainage flowing into the Everglades. The agreement requires SFWMD to design and construct approximately 35,000 acres of STAs, with provision for additional acreage if needed to meet the long-term total phosphorus limits. The regulatory program will require permits for all discharges of water from the Everglades Agricultural Area located north of the Park and Refuge. It will also establish specific, long-term phosphorus load allocations for permit applicants.  A key component of the regulatory program will be the implementation of a Best Management Practice (BMP) Program designed to achieve an interim phosphorus reduction of 10% and a long-term reduction of 25%.

5. Research and monitoring. The Agreement establishes a research and monitoring program to be initiated by DEP and SFWMD. The research program is intended to interpret numerically the narrative state water quality standard for nutrients and to assess responses of the Park and Refuge ecosystems to the phosphorus levels actually achieved, and to provide data for research initiatives.

6. Enforcement contingencies. The Agreement establishes a schedule for SFWMD and DEP to complete administrative actions consistent with the terms of the Agreement. They formally acknowledge their authority to take additional action against third parties responsible for nutrient pollution of the Everglades if the schedule is not met.

7. Mutual cooperation. The Agreement adopts a commitment to federal-state cooperation, with primary responsibility resting with the State.  The Agreement establishes a joint Technical Oversight Committee (TOC) with representation of State and Federal agencies, requires mutual technical support, and mandates mediation prior to initiation of judicial proceedings to settle disputes. In order to settle the defendants' counterclaim, the United States agreed that the Army Corps of Engineers (ACOE) would apply for permits for some of its water control structures in the Everglades.

8. Force majeure. The Agreement contains a force majeure clause which explicitly recognizes natural disasters and unavoidable legal barriers as uncontrollable events that might prevent or delay commitments under the Agreement.

In order to secure federal court approval, the Settlement Agreement preserved the rights under state law of the agricultural interests to participate in and challenge the final development and implementation of the settlement's remedial program through the state administrative process.  See also, Florida Sugar Cane League v. Department of Environmental Regulation, 617 So.2d 1065 (Fla. 4^th DCA 1993).

Thus, nonsignatories had the opportunity to pursue state administrative remedies under Fla. Stat. Ch. 120 if their substantial interests were affected by implementation of the Settlement Agreement's remedial program, i.e., the final SWIM (Surface Water Improvement Management) Plan by the SFWMD and DEP.  Several agricultural interests filed challenges to the final SWIM Plan in 1992 in addition to filing several in state and federal fora.

State Administrative Proceedings

The Settlement Agreement was founded on the recently passed Marjory Stoneman Douglas Everglades Protection Act (Douglas Act), Ch. 91-80, Laws of Florida, developed with the involvement and consent of sugar interests. While sugar interests participated in the passage of the Douglas Act, nearly all agricultural interests (including the sugar interests) filed challenges to the final SWIM Plan in 1992 in addition to filing several lawsuits in state and federal fora. These challenges were extensive and varied, leading eventually to what many felt was litigation gridlock.

Three "SWIM challenges," DOAH Case Nos. 92-3038, 92-3039, and 92-3040, were consolidated by the Division of Administrative Hearings.  

The Everglades Litigation Collection contains close to 1,000 SWIM challenge pleadings filed with the court, the transcripts from the depositions of 166 experts and from 32 hearings, 144 mb of data and thousands of pages of documents produced during discovery proceedings in this action. Pleadings are also available from related Rule and Permit challenges as well as EPA administrative proceedings regarding NEPA.

The Everglades Forever Act

Settlement negotiations were held between several of the parties.  In 1993, a statement of principles was made public.

The passage of the Everglades Forever Act in 1994, Fla. Stat. ch. 373.4592, removed the underlying cause of action of the administrative challenges and all related lawsuits were closed by August of 1994 with the exception of the original lawsuit (United States v. South Florida Water Management District, No. 88-1886 (S.D. Fla.)).            

In August 1994, the United States Court of Appeals for the Eleventh Circuit affirmed the 1992 Consent Decree and remanded the case to district court for further consideration in light of the Everglades Forever Act (28 F.3d 1563 (11^th Cir. 1994), cert denied 115 S.C. 1956)).

Several hearings were held in United States v. South Florida Water Management District, No. 88-1886 (S.D. Fla.), attempting to reconcile the old Settlement Agreement with the new state law. Litigation continues, however. The Miccosukee Tribe of Indians filed several lawsuits against the federal and state governments.

Restoration

April 2003       

The Final Conceptual Plan for Achieving Long-term Water Quality Goals - March 17, 2003 draft being considered by the South Florida Water Management District and proposed legislation (PCB NR 03-01 A) in the Florida House of Representatives may amend significant portions of the Everglades Forever Act and may lead to failure in meeting key provisions of the federal Settlement Agreement. 

           Go to Restoration page