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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 and only the major and current 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"

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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) 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).
	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) - b y 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. NEWS: 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. 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
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 is currently consolidating appeal cases. Federal judge rules on Fla water pollution limits (Feb.19, 2012) - Judge Hinkle's judicial ORDER (Feb.18, 2012, Full TEXT)
	LO Contamination
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 - 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.


		"The leadership is rolling through a large number of things without full consideration of the implications", said Rep.(D) D. Taylor. "I don't think there was a whole lot of thought placed on the changes they're trying to make. Unfortunately, they have the numbers to do whatever they want and nobody can stop them, nobody," Taylor said.

LEGISLATIVE ACTIVITIES
Florida Supreme Court Ruling - against the Governor (No. SC11-592)	"Florida Justices: Scott Overstepped his Authority"	Associated Press - August 16, 2011
US Congress: Clean Water Cooperative Federalism Act of 2011	"Proposal in U.S. Senate would weaken efforts in Florida, nationwide to clean up waterways"	TCPalm - Editorial: August 1, 2011
A Concise Guide to What Passed in the 2011 FL Legislative Session	- - - (May 11, 2011 - by Denis Maley) - - -	The Bradenton Times
(updated February 2012)	Environmental Bills (FL)	Comments (also see original news articles)
House Bill - 7051 : Rules Establishing Numeric Nutrient Criteria	FL counterproposal to the US-EPA NNC rules was introduced in the House on January 24, 2012	This FL version of the NNC rules has to get accepted by the US-EPA
House Bill - 421 : Exemptions to Water Management Requirements Senate Bill - 604 : Limited Certification for Urban Landscape Commercial Fertilizer Application	Reportedly undermines local government's ability to implement ordinances, designed to curtail hazards posed from the runoff of fertilizers and agriculturally-based chemicals into FL waters.	"Coalitions unite in opposition of HB-421" (Sanibel-Captiva Islander, January 26, 2012))
House Bill - 1479 : Land Application & Septage	Lifts the current ban on sewage spraying on land	Audubon Florida - opposing
House Bill - 993 : Development permits and the environment	Turns around the "environmental impact" proof - the responsibility of proof is NOT on developers	Environmentalists oppose because the burden of harming the environment proof is now on the development opposition
House Bill - 991 : Environmental Regulation	Curtails local regulation of mining, weakens wetlands protections and undermines rules designed to protect groundwater from landfill pollution	Passed in 7 minutes (!) without the slightest consideration of its long-term impact
House Bill - 239 : Water Quality	Water quality standards	Will dramatically weaken water quality standards, including those for the Everglades

	SELECTED BILLS PENDING (FL)	May, 2011
*Water Quality:* House Bill 457 revises rules implementation of a statewide model ordinance for fertilizers. Would have restricted local governments from adopting regulations limiting use of fertilizers; however, it was amended last week to allow the practice to continue. Local governments across Florida, but not in Volusia or Flagler counties, have adopted rules to try to prevent the flow of nutrients into waterways where cities have to meet federal water-quality standards. Approved unanimously in the House and awaiting Senate vote. Another bill, ( SB-796) which has drawn protests from the South Florida diving industry, would delay deadlines for requiring wastewater utilities to stop discharging treated wastewater to the Atlantic Ocean. It's in the budget committee in the Senate. House Bill 13, already approved in the House and referred to the Senate, repeals a bill approved last year that required regular inspection and repair of septic tanks. The bill was designed to improve the quality of water in the aquifer, to avoid polluted water flowing into wells and springs. However, the bill was expected to be costly for homeowners, requiring them to spend several hundred dollars every few years to ensure the systems were in good working order.	Growth & Planning: In both the House and Senate, extensive bills were filed ( SB-1122 and HB-7129) to revamp the growth-management act and streamline the process. Among other things, either one or both bills limited the scope of state agencies to comment on land planning, give local governments more control, imposed a moratorium on impact fees for nonresidential development and increase the scope of projects that are required to submit to the Development of Regional Impact process. Environmental advocates say the bills would make it more difficult for citizens to challenge bad decisions. The Senate version is still in committee, but the House version is pending a second reading. One bill ( SB-174) would eliminate the Development of Regional Impact program, administered by the regional planning councils statewide. SB-1122 would allow local governments to implement their own comprehensive planning with limited state review.	Environmental Permitting: A pair of bills ( HB-991 and SB-1404) lists more than two dozen provisions regarding environmental permitting. Among the many provisions are exemptions to the Development of Regional Impact process for rock and phosphate mines, expedited permitting for biofuel plants and exemptions to the building code for farm fences. SB-332 revises provisions for lease of sovereign submerged land for docks. All three bills are still in committee. Senate Bill 934 would allow certain agencies in cities and counties to reduce or waive permit-processing fees for stormwater-management systems in urban redevelopment areas and changed requirements for permitting airside activities at airports. The bill is in the Budget committee in the Senate.
The driving forces behind much of the legislation, observers say, are the economic situation and the new, more conservative leadership in the Senate, House of Representatives and governor's office. From the beginning, Gov. Rick Scott made it clear one of his top priorities was to streamline environmental permitting and eliminate "job-killing" regulations and duplicative bureaucratic hoops. But, environmental advocates say it's "one of the worst sessions ever," that the politicians in control are rolling back protections right and left and poised to send the state careening back to the 1960s in terms of lax growth regulations and less oversight of water quality. "They're not only throwing the baby out with the bathwater," said Charles Lee with Audubon of Florida, "They're literally ripping the bathtub out of the floor and throwing it out the window too." Rep. Dwayne Taylor, a Daytona Beach Democrat, said the environmentalists are "exactly right." The leadership is "rolling through a large number of things" without full consideration of the implications, Taylor said. "I don't think there was a whole lot of thought placed on the changes they're trying to make. "Unfortunately, they have the numbers to do whatever they want and	nobody can stop them, nobody," Taylor said. The legislators are "yielding their power to him (the governor) to do whatever he wants done." Taylor's colleague in the local legislative delegation, Rep. Dorothy Hukill, R-Port Orange, doesn't agree the Legislature is anti-environment. "I'm not saying there aren't some people that feel that way," Hukill said. "There is an overall feeling that we need to reduce layers of government and make it more efficient," she said. "I understand how that can produce angst in the environmental community." The situation is more a function of the economy, Hukill said. "Government doesn't have money. Our constituents don't have money, and they're facing very, very hard times," she said. "We have to take the money we have and prioritize and do the things that are important."	Cathleen Vogel, a water-resources consultant and former lobbyist who lives in Flagler Beach, said she would characterize the Legislature as "very pro-business." "There are priorities in the state of Florida today that take precedence," she said. With unemployment so high and "people losing their homes and businesses, there are things that need immediate attention and that is what this Legislature is trying to do." The political leadership took office stating they would streamline permitting, Vogel said, to avoid seeing "business walk away from Florida because you can't get permits." Scott's 29-member regulatory-reform transition team recommended sweeping "cultural changes" to state regulatory agencies to reduce duplication, save money and create a more business-friendly approach. But, several of the bills proposed to streamline permitting and reduce regulation are problematic for local governments because they take authority away, said Scott Dudley with the Florida League of Cities.