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EPA vs Florida

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Judiciary is called upon to decide the (many) cases of disputes concerning Florida Everglades. Both State and Federal case issues are involved - only major and currently outstanding ones are mentioned here.

Judge MORENO 1991 Consent Decree sets out steps Florida should take to preserve water quality in the Everglades. The Technical Oversight Cmt. (SFWMD) is to oversee the compliance. Both federal Gold and Moreno cases are somewhat intertwined. Case #88-1886-civ-Moreno Originally, Judge Hoeveler Reservoir-A1 construction allowed stopped (March 23, 2011)	Moreno - Special Master Judge Moreno appointed the Special Master (John M. Barkett) to determine if the water quality standards in the ENP and the Loxahatchee NWR were met. There were 3 recent hearings: Aug. 31, 2010: Construction of A1 reservoir (Talisman) Oct. 25, 2010: Loxahatchee (NWR) exceeded P-limits Feb. 14-17, 2011: Continued - Loxahatchee P-exceed. remedies	Judge GOLD July 2008 - the EPA was found violating its duties under the Clean Water Act. April 2010 - EPA ordered to craft an enforceable plan with Florida to cut P levels - water quality milestones to be met and enforced: Case #1:04-cv-21448-ASG : Miccosukee Tribe of Indians and Friends of the Everglades vs. USA et al. Dec17/10: SFWMD appealed.	EPA NN-Criteria Aug.19, 2009 EPA Consent Decree bound it to propose federal criteria for FL in January 2010, adopting such rules by October 2010. Judge R.L. Hinkle, US Distr. Court: Case #4:08cv00324-RH-WCS: FWF (+4 envir. groups) vs EPA. Criteria for coastal waters and estuaries should follow and be finalized by Aug.15, 2012. Judge Hinkle is currently consolidating appeal cases.	Back-pumping into LO On December 11, 2006, Federal District Judge C.M. Altonaga in Miami ruled that the SFWMD must comply with the Clean Water Act. June 14, 2007 fed. court injunction required the SFWMD to apply for pollution discharge permits for pumping into Lake Okeechobee. Case #9:02-cv-80309-CMA Friends of the Everglades vs. SFWMD "Back-pumping must stop"

Public Access to Court Electronic Records - pay-for-page
The most comprehensive record of judiciary documents.

Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts, and the PACER Case Locator via the Internet. PACER is provided by the federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service.

Selected cases and litigation documents have been collected at the University of Miami Law Library.
Not all the documents desired may be available for dowmloading from outside of the UM.

JUDICIAL	Milestone Cases	CASE LIBRARY - Full Texts	Milestone decisions establishing whole trends in Everglades development are most often made by courts - at Federal and State levels
LIBRARY OF selected CASE MATERIALS Full Texts COMMENTARY: Curtis Morgan Miami Herald	Allow the POP-UP feature on your browser. Some links have mouse-over pop-up pictures - example : see Judge Moreno below : Judge F.A. MORENO (earlier - Judge Hoeveler) *Consent Decree* The US District Court, Southern District of Florida. Case #88-1886-civ-Moreno: USA vs. South Florida Water Management District. Special Master (John M. Barkett) appointed holding hearings on Loxahatchee P exceedence and advising the Judge.	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. Judge Moreno appointed the Special Master (John M. Barkett) to determine if the water quality standards in the Everglades National Park and the Loxahatchee National Wildlife Refuge were met. During the last 9 months, there were 3 hearings: (1) Aug. 31, 2010: concerned the construction of a deep reservoir on the Talisman properties (A1) in the Everglades Agricultural Area (EAA). (2) Oct. 25, 2010: dealt with broader issues related to Loxahatchee water quality violation that occurred on June 2009 and whether the SFWMD used inappropriate data in calculating discharges to ENP during Water Year 2008 to conform with the discharge limits for the water year. Other issues related to the inadequate source controls implemented in the western basin were also addressed. (3) Feb. 14-17, 2011: discussed the remedies for 2 Loxahatchee phosphorus exceedence “excursions” that occurred in 2008 and 2009. STA-1E design and operation problems were also discussed. It was also obvious through the discussion that the Gold and Moreno cases are intertwined. Both cases are dealing with the main issues at hand: 1) how to reach the 10 ppbP long term geometric mean in the marsh of the Everglades Protection Area (EvPA), and 2) how to determine the Water Quality Based Effluent Limits (WQBEL) for the STAs discharging into the EvPA. During the Consent Decree hearing, all the agencies were already discussing issues related to the Gold case (see below). The Technical Oversight Committe (TOC-SFWMD) coordinates the compliance with the Consent Decree (see Calendar for meetings - March 1, 2011- and quarterly ) *A-1 Reservoir: Reservoir-A1 construction allowed stopped (March 23, 2011) - Work on new shallow* reservoir initiated in 2013. Following one P exceedence in 2005, the SFWMD suggested a series of possible remedies that Judge Moreno approved. Among the remedies was: 1) expansion of STA-2 (compartment B) 2) expansion of STA-6 (compartment C), and 3) construction of A-1 reservoir on the former Talisman properties. SFWMD started working on these remedial actions. Because of the new strategic development called “The River of Grass”, reflected in developing the purchase of US-Sugar land (2008), the SFWMD halted work on A-1 reservoir. This action provoked a new motion from the Miccosukee Tribe asking the SFWMD to continue A-1 construction as originally approved by Judge Moreno. After the hearing in spring 2010, the Special Master and Judge Moreno eventually agreed with the SFWMD to discontinue further work on A-1 and allowed its eventual change into a shallow reservoir or an STA (ruling by Judge Moreno in March 2011). Work on a new-design shallow hybrid reservoir (Flow Equalization Basin) in place of a deep A-1 was initiated in late 2013. Groundbreaking for the renewed work on A-1 was on January 16, 2014.
	Clean Water Act
COMMENTARY: Kurt Anderson Miami Herald	Judge Alan S. GOLD Case #1:04-cv-21448-ASG Miccosukee Tribe of Indians and Friends of the Everglades vs. USA et al. (Lead case #04-21448-civ-Gold consolidated with #04-cv-22072, and #05-cv-20663). The US District Court, Southern District of Florida.	In July 2008 Judge Gold had entered an Order finding that EPA violated its duties under the Clean Water Act. In the April 2010 Order, Judge Gold ordered EPA to craft an enforceable plan with Florida to cut phosphorus levels and if the Florida State does not do so, ordered EPA to draft such a plan itself. Judge Gold required EPA and FDEP to develop and meet specific water quality milestones with an enforceable framework: (1) - by 9/3/10 EPA must draft an Amended Determination directing the State to correct the deficiencies of the Amended Everglades Forever Act. (2) - by 11/3/10 EPA shall conform all NPDES permits for Stormwater Treatment Areas (STAs). (3) - by 7/1/ 2011 EPA must promulgate amended standards for the State if Florida has not done so by January 2011. In September 2010, EPA filed an amended determination setting the WQBEL (Water Quality Effluent Based Limit) for the discharges of the Stormwater Treatment Areas (STAs). The 2-pronged approach to the WQBEL derivation that uses the Long Term Geometric Mean as well as the Flow-Weighted Mean is to ensure that the long-term 10 ppbP limit value of the phosphorus criterion will be met. Currently, the SFWMD filed an appeal to the 11th Circuit arguing that the Judge overstepped his jurisdictional reach. This step may result in taking the edge off the EPA criteria introduction by delaying and suppressing the issue. FURTHER DEVELOPMENT: April 26, 2011: US District Judge Alan Gold's decision expressed urgency for the conservation of the Everglades, and attempts to end 23 years of litigation over water quality in Florida. July 1, 2011 deadline is set for the parties to submit a description of progress made. July 10, 2012: US District Judge Alan S. Gold has scheduled a July 18 hearing in Miami on a framework agreement for restoration proposed by gov. Scott in 2011. The $880 million, 12-year agreement was approved by the US EPA on June 13. Setting a national precedence ? "Nutrient standads under the Clean Water Act" Blog by Alex Basilevski - attorney with the Environmental Department of Obermayer Rebmann Maxwell & Hippel in Philadelphia, PA.
	EPA Water Quality	As of Jan.8, 2014, the state of Florida allowed to set its water quality standards
(some) EXPLANATION: "Agriculture Wading into Troubled Waters in Florida" COMMENTARY: Meline MacCurdy Marten Law	Federal judge rules on Fla water pollution limits (Feb.19'12) : *EPA Numeric Nutrient Criteria:* Case #4:08cv00324-RH-WCS: Florida Wildlife Federation (+4 envir. groups) vs EPA, *Judge Hinkle*	In 2008, the Earthjustice (representing environmental groups) challenged the EPA on not enforcing the CWA in FL. Indeed, until now, FL has only narrative nutrient criteria which allow degradation of many water bodies (fresh and coastal). Aug.19, 2009 EPA Consent Decree (Judge Hinkle) bound it to propose federal criteria for FL in January 2010, adopting such rules by October 2010. The US-EPA divided their work into 2 phases: NN-Criteria for fresh waters (streams, rivers and lakes). The EPAQ rule was promulgated in Dec.2010 and its implementation has been delayed by 15 months. 2) Coastal waters and estuarine NN-criteria are being developed and the TN and TP figures are supposed to be announced by Aug.15, 2012. In a response to the fresh-water rules, over a hundred lawsuits have been initiated that are currently being consolidated by Judge Hinkle. Judge Hinkle has consolidated appeal cases. "Federal judge rules on Fla water pollution limits" (Feb.19, 2012) - Judge Hinkle's judicial ORDER (Feb.18, 2012, Full TEXT) "Florida water rules delayed" (March 6, 2012) - based on Judge Hinkle's order, EPA delays rule application until JULY 6, 2012. "Judge (Hinkle) clears way for DEP to set state water standards" (January 8, 2014) - After a 15-year-old war, US-EPA can lift remaining federal hurdles to allow the FDEP to set new water standards within the state. Environmentalists worry and vow a counter-attack..
	LO Contamination	As of June 14, 2007, backpumping contaminated water into LO is forbidden
COMMENTARY: David GUEST, Earthjustice.org	Back-Pumping into Lake Okeechobee Case #9:02-cv-80309-CMA (#02-80309-CIV-ALTONAGA) Judge Cecilia M. ALTONAGA	On December 11, 2006, a federal district judge in Miami ruled that the SFWMD must comply with the Clean Water Act. June 14, 2007 fed. court injunction required the SFWMD to apply for pollution permits to engage in pumping dirty water into Lake Okeechobee. FINAL JUDGMENT - June 14, 2007 This cause came before the Court upon the Order on Remedies issued separately on this date. Pursuant to the Order on Remedies and the Court’s December 11, 2006 Order Setting Forth Findings of Fact and Conclusions of Law [D.E. 636], it is - ORDERED AND ADJUDGED as follows: (1) A declaratory judgment is issued in favor of Plaintiffs. In the absence of a NationalPollutant Discharge Elimination System (“NPDES”) permit, the South Florida Water Management District’s (“SFWMD[’s]”) operation of the S-2, S-3, and S-4 pump stations to backpump pollutant containing waters from the canals in a northerly direction into Lake Okeechobee is in violation of the Clean Water Act. (2) A permanent injunction is issued in favor of Plaintiffs. The SFWMD’s Executive Director shall apply to the Florida Department of Environmental Protection for a NPDES permit forthwith. (3) The Court shall retain jurisdiction, including to the extent allowable in light of the parties’ anticipated appeal, to ensure compliance with this Judgment. Furthermore, the Court retains jurisdiction over Plaintiffs’ request for the award of attorney’s fees and costs.
RECENT	Impaired Waters	Impaired Waters & Clean Water Act		As of Jan.8, 2014, the state of Florida allowed to set its water quality standards
	FL CLEAN WATER NETWORK versus US-EPA US District Court for the Northern District of Florida - Tallahassee Division (March 30, 2012) Judge M.C. Rodgers	The plaintiffs, Florida Clean Water Network, Inc.; Conservancy of Southwest Florida; St. Johns Riverkeeper; and Linda L. Young, filed this lawsuit against the defendants, US Environmental Protection Agency; Lisa P. Jackson, in her official capacity as Administrator of the US-EPA; US-EPA Region 4 - Case No. 4:09cv165/MCR/WCS : As FDEP released a new list of Impaired Waters and waters that have been Delisted, the state continues to use every way possible to take polluted waters off of the impaired waters list – 303(d) and to avoid setting pollution limits.This is the fourth winner lawsuit over Florida’s Impaired Waters Rule (IWR) in the past 10 years and still the Florida DEP continues to help polluters find ways around the Clean Water Act. Now, the US-EPA has to review these FL actions within the next 120 days.
RECENT	Mining	Rock Mining & Everglades
	1000 FRIENDS OF EVERGLADES versus PALM BEACH COUNTY District Court of Appeal of Florida, Fourth District, No. 4D10-60 SIERRA CLUB, INC. versus U.S. ARMY CORPS OF ENGINEERS April 8, 2011 - US Court of Appeals Eleventh Circuit #10-13613. Before MARTIN, FAY and BLACK, Circuit Judges.	Defendant, The Palm Beach County Commission issued a development order to Bergeron Sand and Rock Mine Aggregates, Inc., granting the corporation the right to mine within the "Everglades Agricultural Area" in western Palm Beach County. Bergeron sought to expand its mining operations on property designated as "agricultural production" in the comprehensive plan. After the order issued, appellants filed a complaint for declaratory and injunctive relief to challenge the development order, claiming that the order was inconsistent with a Future Land Use Element ("FLUE") policy of the comprehensive plan. The specific FLUE policy, 2.3-e.3, states that "mining and excavation activities, as applicable, shall be restricted" (as specified). The appeal was granted - NO mining ! Defendant-Appellant Mosaic Fertilizer, LLC (Mosaic), a phosphate mining company engaged in significant operations in Hardee County, FL, appeals the order by the district court remanding a mining-permit issued by the United States Army Corps of Engineers (Corps) back to the agency and further enjoining Mosaic from conducting operations approved in that permit. "Due to the unique circumstances presented by this case, we direct the District Court to stay the issuance of the permit for 90 days from the date of this order to permit the district court to proceed to a merits determination on the full record." (3) VACATED AND REMANDED.


		See some selected, important and environmentally related LAWS << (click there for a separate web-page)

LEGISLATIVE ACTIVITIES - environment related - etc.
(2015) HB 7003 - Water Resources (2015) SB 918 - Environmental Preservation and Conservation	Along with the 1/3 phosphorus reduction, little of the 600,000 tons of nitrogen coming into the lake (and released to estuaries) is going to be reduced under the state's plan. Deadlines for meeting nutrient targets are also proposed	The requirements to meet water quality standards may leave the South Florida Water Management District vulnerable to litigation. Supporters of the bill believe that the recently adopted Basin Management Action Plan's (BMAP) projection of reducing 1/3 of the phosphorous entering Lake Okeechobee is enough.
Everglades improvement and management: HB-7065 (2013)	Revises provisions for use of certain ad valorem tax proceeds; provides that certain discharges do not constitute violations of water quality standards;	Directs SFWMD to complete specified analysis; extends period time for collection of agricultural privilege tax; provides that payment of such tax & certain costs fulfills certain constitutional obligation