Petitioners, Sugar Cane Growers Cooperative of Florida,
(Cooperative), Roth Farms, Inc. (Roth), Wedgworth Farms, Inc.
(Wedgworth), by and through undersigned counsel, herewith
petition for formal administrative proceedings pursuant to
Section 373.4592(3)(b), and Section 120.57(l), Florida Statutes,
to challenge a proposed action of the Respondent, South Florida
Water Management District (District).
Objection to these Proceedings
This petition is filed in order not to lose the point of
entry afforded for a Section 120.57(l) hearing, and subject to
petitioners' objection to the District's initiation of agency
action while under the coercive influence of Federal court
2
litigation - United States of America, et al. v. South Florida
Water Management District, et al., Case No.
88-1886-CIV-Hoeveler
over which the Federal courts had and have no
Case-or-Controversy
jurisdiction.
The objectives of the Federal litigation were and are to move
the State administrative SWIM plan lawmaking process to
Federal
Court, at the instance of the United States, or by the expense
and attrition of litigation to coerce the District to sponsor
insistent demands by the United States for radically severe
regulation of farmers in the Everglades Agricultural Area. As
is
more particularly alleged in paragraphs 21-24 hereof, the
District agreed to sponsor such radically severe regulation,
and
agreed to be ordered by that Court to do so, subject to
further
supervision by that Court. The result is the present proposal
for agency action. Chapter 120 processes cannot remedy that
continuing coercive influence, by intervention of a DOAH
hearing
officer or otherwise, because the District's Final Order
authority in the premises remains under the coercive influence
of
such unlawful litigation and the District's fear of renewed
demands by the United States and more Federal court
litigation.
The District having repeated opportunities to object
effectively to the Federal court's unlawful exercise of such
judicial power, declined to object, and voluntarily submitted
to
that unlawful power.
3
Subject to their objection, Petitioners state, as grounds for
their Petition:
Identification of Parties:
1. The name and address of the District:
South Florida Water Management District
3301 Gun Club Road
Post Office Box 24680
West Palm Beach, Florida 33416-4680
2. The names and addresses of the Petitioners:
Sugar Cane Growers Cooperative of Florida
Post Office Box 666
West Sugar House Road
Belle Glade, Florida 33430
Roth Farms, Inc.
Post Office Box 1330
Belle Glade, Florida 33430
and
Wedgworth Farms, Inc.
Post Office Box 2076
Belle Glade, Florida 33430
Standing of Petitioners
3. Petitioner Cooperative is a
cooperative association
formed and operating pursuant to Chapter 618, Florida Statutes.
Petitioner Roth is a Florida corporation and a member of
Petitioner Cooperative. Petitioner Wedgworth is a Chapter 607,
Florida Statutes, family farming corporation, and also a member
of Petitioner Cooperative. The substantial interests of
Petitioner Cooperative and its members will be affected by the
Surface Water Improvement and Management Plan for the Everglades
(SWIM Plan) that was approved by the Governing Board of the
District on March 12, 1992 and noticed in the Florida
4
Administrative Weekly on March 27, 1992. (See Exhibit A hereto).
4. The 54 members of the Cooperative,
including Roth and
Wedgworth, cultivate sugar cane and vegetable crops in the
Everglades Agricultural Area (EAA), which is located east and
south of Lake Okeechobee. That cultivation involves the use and
management of surface waters for irrigation purposes. Certain of
these surface waters are pumped by the District from the EAA into
Water Conservation Areas 1, 2 and 3 (WCA-1, WCA-2, WCA-3) and the
federally owned Everglades National Park (ENP). Such waters
contain chemical constituents, which originate to a great extent
from atmospheric deposition and from soils naturally found in the
EAA. The SWIM Plan envisions implementation of numerous measures
to reduce the amount of phosphorus discharged from the EAA to the
WCAs, and to the ENP. Those measures involve, inter alia, the
imposition of farm level Best Management Practices (BMPs) and the
acquisition through condemnation or otherwise of approximately
36,000 acres of EAA lands, including certain lands presently
owned and farmed by Cooperative members, for the construction of
Stormwater Treatment Areas (STAs) at a cost exceeding
$300,000,000. The BMP component would impose and enforce a 25%
phosphorus reduction requirement on discharges of stormwater from
individual farms at an indeterminate cost to the farms and their
crops. Moreover, the economic burden associated with the
acquisition and construction of the STAs to be borne by
Petitioners' members could exceed many millions of dollars.
5
Thus, the SWIM plan affects the! substantial interests of the
Cooperative and its members, including Petitioners Roth and
Wedgworth.
History of EAA and WCAs
5. The Florida agricultural industry has
been a major
feature of the historical development of the EAA. It was
recognized near the turn of this century that areas immediately
south and east of Lake Okeechobee contain some of the richest
soils in the country, if not the world. However, at that time
beneficial farming of the area was largely frustrated by natural
flooding on the one hand and natural dry spells on the other.
The flooding tendencies led to major losses of life and property
in the 1920s and as late as the 1940s. In 1948, as part of the
Federal Flood Control Act (Public Law 80-858), Congress
established the Central and Southern Florida Project for Flood
Control and Other Purposes (the Project) for which the State of
Florida became the local sponsor.
6. The primary purpose of the Project was to
build and
operate new artificial channels, structures and systems to
control, drain, conserve and allocate water over an area of
2,300,000 acres so as to reduce losses to floods and fires that
naturally recurred, to relieve drought, supply needed water to
control salt water intrusion, recharge the fresh ground-water
tables serving coastal populations, and supply agricultural
needs, while holding and protecting large parts of the Everglades
6
which remained suitable for preservation of fish and wildlife.
The project was authorized despite reservations of the Fish and
Wildlife Service, Department of Interior, that "The extensive
changes wrought in the Everglades areas will result in the loss
of certain unique wildlife habitats. The Fish and Wildlife
Service decries this loss even though it may be overshadowed by
benefit to the fishery." House Document No. 643, 80th Congress,
2d Session, Comprehensive Report on Central and Southern Florida
for Flood Control and Other Purposes (The 1948 Corps Report).
7. Fundamental components of the Project
include: the
creation of the three WCAs lying between the EAA, and the
developing East Coast and the ENP; the construction or
improvement of canals and structures to facilitate draining and
pumping of excess waters in the EAA to Lake Okeechobee, to the
WCAs, to the ENP, and/or to the ocean; and, the creation of large
pumping stations at several locations around the perimeter of the
EAA and around the southeastern bank of Lake Okeechobee. It was
anticipated that the Project would give flood protection, better
drainage, and enhanced water supply during dry periods to
approximately 700,000 acres of developed and potentially
productive agricultural lands within what is now known as the
EAA. The impounding levee on the east side of the WCAs was also
intended to prevent the overflow of water to the coastal area
from the Everglades. A schematic depiction of the Project is
shown in Exhibit B.
7
8. The 1948 Corps Report also observed that
the original
condition of the "Everglades" had been greatly altered by
drainage and flood-control works of the state and local
interests, and later by the Federal Government. For example, in
the area south of Lake Okeechobee, over-drainage had caused the
muck soils to oxidize, decompose and subside several feet.
Although improved water control resulting from the Project was
expected to reduce such problems, extensive additional changes in
the Everglades area were nevertheless predicted. The Department
of the Interior advised, when discussing the need to direct
further investigations of water quality by the Geological Survey,
as follows:
... [The] Report brings up certain questions relating to
the water investigational program of the Geological
Survey, particularly in the Everglades and the lower
east coast of Florida. ... It is considered highly
important that such investigations be assured not only
continuity but proper expansion leading up to a well
coordinated network of water measurements, ground-water
observations, and chemical sampling stations, which are
adequate for all future needs ...
It is apparent that the characteristics of the waters
with respect to their occurrence, movement, and quality,
will be appreciably changed by the proposed flood
control and other works in Southern Florida ...
... The past records of stream and canal flow, water-
table elevations, and variations in chemical quality
would, in many areas, remain of value only as records of
the antecedent conditions. The new, characteristics
produced by the proposed physical works would
necessarily be redefined in order to determine the
availability of water under all conditions of flood and
drought for the many interested parties in the numerous
activities referred to above....
... The Department concurs in the comprehensive plan of
8
improvement proposed in the report designed to remove
excess water from urban, pasture, and farmlands, to
conserve water for control of ground-water level during
dry periods, and to prevent overflow of the coastal area
by water from the Everglades. (Emphasis added). Id. at
IX-X.
9. The 1948 Corps Report deemed agricultural development of
the EAA to be in the national. interest. It emphasized that the
Project would provide flood protection and water control to
prevent a repetition of the recent destructive flooding, and to
provide water conservation facilities needed to stabilize the
existing agricultural economy of the region and promote its
ultimate development. Id. at 2. With regard to the WCAs, the
rationale underlying water conservation was the growing demand
for municipal water supply. The WCAs were viewed as a practical
rectification of the problem through the establishment of
conservation areas on "wild lands in the Everglades which are
unsuitable for agriculture. Maintenance of these large areas in
a wet condition would contribute largely to recharge the fresh
ground water tables along the east coast." Id. at 35.
10. Over one-half of the estimated economic
benefits of the
Project were attributed to the Lake Okeechobee/Everglades area,
which included existing pasture and farmlands and vast areas of
potential new farmlands and pasture. The proposed improvements
would provide the basic flood protection and water control
essential to develop and use over 725,000 acres of rich
agricultural land which was then virtually unused.
11. In 1951, the District's predecessor and
the U.S. Fish
9
and Wildlife Service executed a license agreement relating to
WCA-1. That agreement permitted WCA-1 to be used as the Arthur
R. Marshall Loxahatchee National Wildlife Refuge (Refuge) so long
as wildlife practices and recreational use of the lands were not
inconsistent with the use of the land for the flood control and
water retention purposes described above. While overall wildlife
preservation benefits were an expected secondary benefit of the
Project, it was generally understood that the Project would
change wildlife habitats in the WCAs, and that the WCAs were
created fundamentally to promote water conservation.
Adoption and Implementation of Chapters 403 and 373
Florida Statutes
12. Chapters 403 and 373, Florida Statutes,
were adopted in
1967 and 1972, respectively, as Florida began to focus attention
on surface water quality and management. Among other things,
these statutes authorized DER's predecessor to adopt water
quality standards and institute a permitting system for
discharges to waters of the state, and superseded the Central and
Southern Florida Flood Control District with the South Florida
Water Management District. The District's initial role was
regulating the consumptive use of water, managing water, and
operating the Project.
13. In the late 1970's the Environmental
Regulation
Commission (ERC) continued to update Florida water quality
standards to reflect recommendations of the U.S. Environmental
Protection Agency. As part of that program, the ERC adopted more
10
stringent water quality standards for surface waters in
general. The ERC established a new category of water called
"Outstanding Florida Waters," that included the Refuge and
the
ENP, and simultaneously established various regulatory moderating
provisions to assure that its standards were applied
practicably. The rules state that:
(a)
The Department's rules... regarding water
quality standards ... have been established taking into
consideration the use and value of waters of the State
for agricultural, industrial, and other purposes ...
(b) 2.
The mixing zone.... site specific
alternative criteria, exemption and equitable allocation
provisions [moderating provisions] are designed to
provide an opportunity for future consideration of
factors relating to localized situations..., including
economic and social consequences attainability,
irretrievable conditions, natural background, and
delectability.
(c) This is an
even-handed and balanced approach to
attainment of water quality objectives. The Commission
has specifically recognized that the social, economic
and environmental costs may, under certain special
circumstances, outweigh the social, economic and
environmental benefits if the numerical criteria are
enforced statewide. It is for this reason that the
Commission has provided for the [moderating provisions]
in Chapters, 17-302, 17-4, and 17-6, F.A.C.
Furthermore, the continued availability of the
moderating provisions is a vital factor providing a
basis for the Commission's determination that water
quality standards applicable to water classes in the
rule are attainable taking into consideration
environmental, technological, social, economic and
institutional factors.
(d) Without the
moderating provisions
described ... above, the Commission would not have adopted
the revisions ... nor determined that they are attainable
as generally applicable water quality standards. Rule
17-302.100(10), F.A.C.
14. Also in the 1970's DER began to take steps
to reduce the
allowable amounts of phosphorus and nitrogen (nutrients),
11
discharged into Lake Okeechobee from surrounding areas, including
the EAA. In 1981, DER limited EAA irrigation backpumping into
Lake Okeechobee to that needed solely for flood control
purposes. Water that was previously sent from the northern part
of the EAA to Lake Okeechobee for water conservation purposes was
now required to be sent directly to the WCAs, in order to
minimize perceived adverse impacts caused by the addition of
nutrients to Lake Okeechobee. This change, called the Interim
Action Plan (IAP), was implemented with the District's
foreknowledge that the incremental increase in nutrients
delivered to the WCAs could promote the growth of cattails in
those areas.
Early SWIM Plan Development
15. In 1987, the legislature adopted the
Surface Water
Improvement and Management Act, Section 373.451-373.4595, Florida
Statutes to remedy or prevent degradation of surface waters that
adversely alter natural systems (SWIM Act). The SWIM Act
directed each of the state water management districts to
prioritize water bodies within their boundaries and to develop
information concerning the extent to which state water quality
standards were being met in those water bodies and strategies for
bringing sources of water pollution into compliance with such
standards. In 1989, the legislature specifically required
preparation of a SWIM plan for Lake Okeechobee (Section 373.4595,
F.S.).
12
16. By 1987, the District also began
developing a SWIM plan
for the EAA, WCAs, and the ENP. During that process, in 1988,
the Acting U.S. Attorney sued the District and DER in the Federal
District court for this Southern District of Florida, seeking,
among other things, the imposition of more stringent water
quality requirements for discharges of the project into WCA-1 and
the ENP. U.S.A. v. South Florida Water Management District,
infra.
17. On September 28, 1990, the District
distributed a draft
of the Everglades Surface Water Improvement and Management Plan
(ENR) (Plan 1). Plan 1 identified alterations in hydroperiod as
the major factor that contributed to adverse impacts to WCA
ecosystems. Plan 1 also noted that water entering the ENP was of
high quality. Plan 1 contemplated that the District would
potentially acquire four areas within the EAA for the
construction and operation of nutrient uptake (i.e., treatment)
and water management systems. These were the Everglades Nutrient
Removal Project (ENR Project) and Water Management Areas 2, 3 and
4. Plan 1 was forwarded to the Florida Department of
Environmental Regulation (DER) for further review under Section
373.456, F.S.
18. Soon after the inauguration of Governor
Lawton Chiles
in early 1991, it became public knowledge that the federal
government, the District, and DER were conducting settlement
discussions with regard to the federal lawsuit. Although various
13
agricultural interests, including Petitioner Roth, had intervened
in the federal lawsuit, they were excluded from participating in
these settlement negotiations.
19. The 1991 Florida Legislature amended
Chapter 373,
Florida Statutes, through the adoption of the Marjory Stoneman
Douglas Act, Section 373.4592, Florida Statutes (Douglas Act).
Among other things, the Douglas Act added a provision requiring
the District to develop an Everglades SWIM plan that includes
"strategies for developing programs and projects designed to
bring facilities into compliance with applicable water quality
water standards and restore the Everglades hydroperiod...".
(Emphasis added). Section 373.4592 (3)(a) l.F.S. The District
was authorized to establish stormwater utilities as a method of
financing the acquisition and operation of lands and facilities
needed for treatment of waters entering the Water Conservation
Areas. Section 373.4592(3), F.S., specifies that the SWIM plan
shall constitute an order of the District subject to the
provisions of Section 120.57, F.S. However, the legislation
provides that prior to approval of the SWIM plan, nothing shall
prohibit the District from acquiring, constructing or operating
the ENR project or the project specifically referred to as Water
Management Area 3 in Plan 1. See Section 373.4592(3)(c), F.S.
20. Importantly, the Douglas Act directed the
District to
apply for DER permits for stormwater management systems for its
structures discharging to the WCAs and the ENP. See Section
14
373.4592 (b)(a), F.S. The applications are to include
recommended phosphorus concentrations and discharge limitations
appropriate to achieve compliance with "applicable state water
quality standards," and proposed "interim
concentration levels
designed to achieve compliance to the maximum extent
practicable." (Emphasis added) Id.
Federal Court Settlement Agreement
21. Apparently prior to the adoption of the
Douglas Act, the
state agencies and Governor Chiles elected to cease their defense
against the federal claims. Instead, the state parties entered
into a Settlement Agreement which constitutes the underlying
basis for the SWIM plan challenged herein. Without supporting
technical or scientific documentation, the Settlement Agreement,
which was filed with the federal District Court on or about July
11, 1991, completely reshaped the SWIM planning process
envisioned by the Douglas Act by essentially ignoring the
hydroperiod restoration component and requiring both the District
and the Department to support imposition and enforcement of the
following major initiatives:
A. Expansion of the ENR project and STAs
(formerly
referred to as Water Management areas) to a total size
of approximately 36,000 acres.
B. Adoption of specific numerical interim and
long
term phosphorus water quality standards for the Refuge
that fail to take into account practicability or the
15
moderating provisions (of ERC water quality standards
regulations.
C. Adoption of specific numerical interim and
long
term phosphorus discharge limitations for the waters
entering the ENP that fail to take into account
practicability or the moderating provisions of ERC water
quality standards regulations.
D. Implementation of an EAA Regulatory Program
assumed
capable of reducing phosphorus loads by 25% at the basin
and farm level.
E. Adoption of a discharge limitation of 50
parts per
billion on the phosphorus concentration of waters
discharged from the STAs into the WCAs.
F. The establishment of a Technical Oversight
Committee, composed of three federal and two state
representatives, charged with determining compliance
with Settlement Agreement provisions, and with
numerically interpreting Florida's phosphorus water
quality standard, which if not met by July 1, 2002, in
the Refuge and ENP will trigger the need to expand the
STAs and/or impose further farm level phosphorus
reductions, regardless of costs.
Post-Settlement Agreement SWIM Plan
22. In December, 1991, the District's
Governing Board
approved, by a 6 - 1 vote, a draft SWIM plan for submittal to DER
16
under Sections 373.451-373.4595, Florida Statutes (Plan 2). Plan
2 incorporated all of the substantive requirements of the
proposed Settlement Agreement, with the exception of the
Technical Oversight Committee provisions, with little or no
additional scientific documentation.
23. The proposed Settlement Agreement was
approved by order
of the Federal District Court dated February 24, 1992. That
order, while approving the Settlement Agreement, states that the
Water Management District is not bound to its substance if the
Section 120.57, F.S. process results in conflicting findings.
Id. at 8. Accordingly, Settlement Agreement based provisions of
the SWIM plan are not entitled to a presumption of correctness.
24. The SWIM plan was brought to the Board
for final action
on March 12, 1992. At that hearing, representatives of
agriculture urged the Board to delay implementation of the STAs,
the rigid 25% farm level Phosphorus reduction and other aspects
of the plan until the ENR Project was demonstrated to be
successful. However, several lawyers from the U.S. Attorney's
offices spoke and insisted that the Board was required by the
Settlement Agreement to adopt the plan as proposed. The Board
approved the plan without significant changes by a 5-3 vote.
Disputed Issues of Material Fact
25. The SWIM plan is comprised of three
volumes of material
containing numerous factual statements with which Petitioners
disagree. While a listing of those facts in a notice pleading is
17
impractical, Petitioners will endeavor below to put the District
on fair notice with regard to the nature of the factual matters
in the SWIM plan with which they disagree. Accordingly,
Petitioners dispute the following issues of material fact:
A. Whether, and the extent to which, the
District has
established the causes of adverse changes to the WCA and ENP
ecosystems brought about by construction and operation of the
Project and equitably allocated responsibility for abatement
of such conditions to the users and beneficiaries of the
Project that have contributed to such conditions including,
but riot necessarily limited to, agricultural users, water
supply users (such as East Coast cities) the ENP, the Refuge,
and those protected from floods.
B. Whether, and the extent to which, the
District has
analyzed the environmental impacts to the pre-Project WCA and
ENP ecosystems caused by alterations to the pre-Project
hydroperiods that the Project brought about.
C. Whether, and the extent to which, the
District has
analyzed the environmental impacts to the existing WCAs and
ENP ecosystem, including changes in water quality,
vegetation, and other values, that will be brought about by
the hydroperiod changes associated with implementation of the
SWIM Plan.
D. Whether, and the extent to which, the
District has
defined the "natural" hydroperiods of the WCAs and ENP and
18
the degree of restoration of these hydroperiods that the SWIM
plan will accomplish.
E. Whether, and the extent to which, the
District has
demonstrated that agriculturally produced phosphorus levels
contained in waters released from the EAA create or will
create adverse environmental impacts to the WCAs or the ENP.
F. Whether, and the extent to which, the
District has
demonstrated that any adverse environmental impacts created
by phosphorus presently discharged from the EAA into the WCAs
or ENP are increasing.
G. Whether the design and performance
assumptions utilized
by the District in developing the proposed STAs are valid.
H. Whether construction and operation of the
proposed STAs
is practicable.
I. Whether the District's decision to
immediately purchase
and construct approximately 36,000 acres of STAs prior to
establishing design and performance criteria through testing
of the ENR Project is technically justifiable.
J. Whether the District's proposed interim
and long term
phosphorus concentration limits for the Refuge are
technically valid.
K. Whether the District's proposed interim
and long term
phosphorus concentration limits for the Refuge reflect a
proper application of Florida water quality standards.
L. Whether the phosphorus reductions
proposed for pump
19
stations S-5A and S-6 still result in compliance with the
District's proposed short term and long term phosphorus
concentration limits within the Refuge.
M. Whether the proposed phosphorus
reductions to be imposed
at District pump discharges are environmentally necessary or
necessary to comply with regulatory requirements.
N. Whether in developing the SWIM plan the
District has
properly applied pertinent provisions of Florida water
quality standards including, but not limited to, the
moderating provisions enumerated in Section 17-302.100(10),
F.A.C.
O. Whether the District has an adequate
scientific basis
for determining that the Best Management Practices envisioned
in the EAA Regulatory Program will achieve a 25% basinwide
and farm level reduction in phosphorus loadings.
P. Whether the District has, as a result of
the federal
litigation and resulting Settlement Agreement, proposed SWIM
plan components that go beyond technical justification.
Q. Whether the SWIM plan would require
phosphorus loads
in EAA discharges to be reduced to levels that are lower than
background levels of the Project.
R. Whether the District has included in its
proposed agency
action provisions explicating the role and powers of the
Technical Oversight Committee established in the Settlement
Agreement.
20
S. Any other issue of material fact that is
disclosed in
the discovery process, or that is put into dispute by other
parties to this proceeding.
Ultimate Facts Which Petitioners Believe
Entitle Petitioners to the Relief Sought
Including the Rules and Statutes Which Support
Petitioners Claim for Relief
26. Petitioners allege the following ultimate
facts which
entitle them to relief:
A. The District has failed to establish the
causes of
changes to the WCA and ENP ecosystems brought about by
construction and operation of the Project, and to equitably
allocate responsibility for abatement of such conditions to
the users and beneficiaries of the Project.
B. The District has failed to analyze the
environmental
impacts in the pre-Project WCA and ENP ecosystems caused by
alterations that the Project brought about to the Pre-Project
hydroperiods of those areas.
C. The District has failed to analyze the
environmental
impacts to the existing WCAs and ENP ecosystems including
changes in the water quality, vegetation, and other values,
brought- about by the hydroperiod changes that would be
associated with SWIM Plan implementation.
D. The District has failed to establish the
"natural"
hydroperiods of the WCAs and ENP, and the degree of
restoration of those hydroperiods that the SWIM Plan would
accomplish.
21
E. The present agriculturally related
phosphorus levels
released from the EAA to the WCAs and the ENP have not been
validly shown to have caused adverse environmental impacts to
the WCAs.
F. The District has failed to demonstrate that
phosphorus
contained in EAA waters have created adverse environmental
impacts in the WCAs or ENP that are increasing.
G. The design and performance assumptions
relied on by the
District in developing the proposed STAs are scientifically
invalid.
H. Construction and operation of the proposed
STAs is not
practicable.
I. The decision to proceed to construct
approximately
36,000 acres of STAs prior to establishing the performance
and technical feasibility of the STAs through experimental
work on the ENR project or otherwise is scientifically
unjustifiable.
J. The District's proposed interim and long
term phosphorus
concentration limits for the Refuge are technically invalid.
K. The District's proposed interim and long
term phosphorus
concentration limits for the Refuge reflect an improper
application for water quality standards.
L. The phosphorus reductions proposed for pump
stations S-
5A and S-6 will, if achieved, not result in compliance with
the District's proposed short term and long term phosphorus
22
concentration limits within the Refuge.
M. The proposed phosphorus reductions to be
imposed at
District pump discharges are not environmentally justifiable
or required to comply with applicable regulatory
requirements.
N. In developing the SWIM Plan, the District
has failed
to properly apply pertinent provisions of Florida water quality
standards including, but not limited to, the moderating
provisions enumerated in Section 17-302.100(10), F.A.C.
O. There is no adequate scientific basis for
assuming that
the Best Management Practices envisioned in the proposed EAA
Regulatory Program will achieve a 25% basinwide and farm
level reduction in phosphorus loadings.
P. The District has been forced by the federal
litigation
and the resulting Settlement Agreement into proposing SWIM
plan components that go beyond what it can technically
justify.
Q. The proposed SWIM plan requires a reduction
in
phosphorus loading from EAA discharges to levels that are
lower than background levels of the Project.
R. The District has improperly excluded from
its proposed
agency action provisions explicating the role and powers of
the Technical Oversight Committee established in the
Settlement Agreement.
23
S. Any other issues of ultimate fact
that may arise during
these proceedings.
Rules and Statutes Which
Support Petitioner's Claim for Relief
27. In each of the particulars described in
paragraph 26 and
in their totality, petitioners contend that the SWIM plan is
arbitrary, capricious, and an abuse of discretion, or that it
exceeds the statutory authority of the District. The District
has failed, in the SWIM Plan, to scientifically develop a balance
between hydroperiod alterations and water quality improvements
contrary to the intent of the Douglas Act and contrary to the
rationale underlying the Florida water quality standards. The
exclusion from the SWIM plan (of provisions of the Settlement
Agreement that will be used to determine compliance with the plan
and its future modifications -- i.e., the Technical Oversight
Committee -- conceals that critical component of the plan from
chapter 120 scrutiny, thereby vitiating the rights of Petitioners
to challenge the legality of the intended action.
28. Petitioners' claim for relief is supported
by the
following:
A. Chapter 40E, including Rule 40E-1.521,
Florida
Administrative Code;
B. Chapters 17-3, 17-4, 17-6 and 17-302,
Florida
Administrative Code;
C. Chapter 403, Florida Statutes;
D. Chapter 373, Florida Statutes;
24
E. Chapter 120, Florida Statutes;
F. The Constitutions of the State of Florida
and the
United States.
Other Information Which The Petitioners
Contend Is Material
29. Similarly situated members of the sugar
cane industry
have filed or will file one or more Petitions for Formal
Administrative Hearing Pursuant to Section 120.57, Florida
Statutes, through separate counsel on or about April 10, 1992.
Petitioners hereby adopt and incorporate by reference the
Material Facts In Dispute and Issues of Law presented in such
Petition(s).
30. Petitioners support controls of
agriculturally-produced
phosphorus in EAA discharges to the extent environmentally
necessary and practicable. Their dispute with the SWIM Plan
involves aspects of the Plan that go beyond either scientific
justification or practical necessity. The SWIM Plan should not
go forward prior to the completion of a systemwide analysis that
determines the extent to which hydroperiod, water quantity and
water quality factors have created changes in the WCA and ENP
ecosystems, and which establishes an equitable allocation of
abatement responsibilities for any unacceptable ecosystem changes
among the present beneficiaries and users of the Project, and
which validly projects the ecosystem and hydroperiod changes that
will occur if the SWIM Plan is implemented. Additionally, the
extent of any required phosphorus reductions should be based upon
25
full consideration of the moderating provisions of state water
quality regulations rather than the apparent presumption of the
Settlement Agreement and the resulting SWIM plan that water
quality in the WCAs and ENP should be restored to the state that
existed prior to man-made alterations to the Everglades.
Petitioners object to (i) the provisions aimed at acquisition and
construction of the 36,000 acre STA areas prior to a full,
successful demonstration of the effectiveness of the presently
underway ENR Project and the fair development and consideration
of alternatives, (ii) the imposition of a rigid 25% Phosphorus
reduction for Best Management Practices in the face of such
meagre supporting data concerning feasibility and costs, and
(iii) the imposition of phosphorus limitations and standards
prior to further research on the appropriate nutrient levels and
hydroperiods, and the proper application of Florida water quality
standards, for the ENP and WCAs. If the District satisfactorily
addresses the concerns of Petitioners in these areas, this
challenge would be unnecessary.
Demand for Relief
WHEREFORE, Petitioners respectfully request that the South
Florida Water Management District grant this Petition, and
A. Initiate a formal Section 120.57(l), Florida
Statutes proceeding; and
B. Provide such other relief as may be
appropriate.
26
Respectfully submitted this _________ day of April, 1992.
HOPPING BOYD GREEN & SAMS
___________________
William K. Green
Florida Bar Number: 168276
Gary V. Perko
Florida Bar Number: 0855898
123 South Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32312
904/222-7500
Attorneys for Sugar Cane Growers
Cooperative of Florida, and
Roth Farms, Inc.
Wedgworth Farms, Inc.
Of Counsel:
Jeffrey J. Ward, Esquire
Counsel to Sugar Cane Growers
Cooperative of Florida
Post Office Box 666
Belle Glade, Florida 33403
27
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that an original and two copies of the
foregoing Petition for Formal Administrative Proceedings Pursuant
to Section 120.57(l), Florida Statutes, were hand-delivered to
the Office of the Clerk, South Florida Water Management District
and one copy was hand-delivered to Irene Quincy, South Florida
Water Management District this ____ day of April, 1992.
____________________________
William H. Green
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