United States v. SFWMD, et
al.,

Case
No. 88-1886-CIV-HOEVELER

SETTLEMENT AGREEMENT

Sections

| Style
| Definitions
|   Settlement
of Claims | Introduction/Background
|   Commitment
to Restoring and Maintaining Water Quality | Phosphorus
Concentration Limits for the
Park |
Phosphorus Concentration Limits for the
Refuge
| Water Quantity Requirements
|

Implementation of Storm
Water Treatment Areas |   Table
1 |  Research
and Monitoring |   Regulatory
Program

Implementation and Enforcement  Procedures
|   Preservation and Protection of the Rights of the Miccosukee
and Seminole Tribes |   Mutual
Cooperation | Technical Oversight Committee (TOC)
|  Settlement
of Disputes |   Litigation
Costs |  Integration
Clause |   Jurisdiction
|  Force
Majeure |  Signatures
|  Appendices
|

• Outline
of the Settlement Agreement |

• Notice
of Filing  Settlement Agreement
|
• Consent
Decree  847 F. Supp 1567
|
• 11th
Circuit Ct. of Appeals decision   28 F.3d
1563 (11th Cir. 1994 (cert denied
115 S.C. 1956)
|

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF
FLORIDA
MIAMI DIVISION

UNITED STATES OF AMERICA, et al.,

Plaintiff,

vs .

SOUTH FLORIDA WATER MANAGEMENT
DISTRICT; TIMER E. POWERS,
Interim
Executive Director, South
Florida Water Management

District; FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION;

and CAROL M. BROWNER,Secretary,
Florida Department of

Environmental Regulation, et al.,

Defendants.

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Case
No
88-1886-CIV-WMH

FILED by SEC D.C.
JULY 26,
1991
Docket #: 980

SETTLEMENT AGREEMENT

WHEREAS the United States, the South Florida Water Management

District and Timer E. Powers in his official capacity as Interim

Executive Director of the South Florida Water Management
District;

and the Florida Department of Environmental Regulation and Carol
M.

Browner in her official capacity as Secretary of the Florida

Department of Environmental Regulation, desire to restore,
preserve

and protect the unique flora and fauna of the Everglades National

Park and the Arthur R. Marshall Loxahatchee National Wildlife

Refuge, to maintain a cooperative relationship in accomplishing

these goals, and to settle and resolve the disputes that have

arisen between and among them without admitting or conceding

liability;

2

THEREFORE, the United States, the South Florida Water

Management District and Timer E. Powers, and the Florida
Department

of Environmental Regulation and Carol M. Browner mutually
stipulate

and agree as follows:

DEFINITIONS

1.     The following definitions shall apply
to this Settlement

Agreement ("Agreement") and the attached Appendices:

A.     "Class III water quality standards"
shall have the

meaning set forth in Florida Administrative Code Chapter
17-

302.

B.     "The DER" shall mean the Florida
Department of

Environmental Regulation.

C.     "The District" shall mean the South
Florida Water

Management District.

D.     "The Everglades Agricultural Area"
("EAA") shall mean

that area including, but not limited to, the drainage basins

of S-2, S-3, S-5A, S-6, S-7, S-8, and S-150, as further

defined in the SWIM Plan or permits to be developed pursuant

to paragraph 13.

E.     "The Everglades Protection Area"
("EPA") means Water

Conservation Areas 1, 2A, 2B, 3A, 3B, the Arthur R. Marshall

Loxahatchee National Wildlife Refuge, and the Everglades

National Park.

F.     "Imbalance in natural populations of
aquatic flora and

fauna" and "imbalance of flora and fauna" shall have the

meaning in Florida Administrative Code Rule 17-302.560:

3

"Class III Waters - Recreation, Propagation and Maintenance of

a Heathy, Well-Balanced Population of Fish and Wildlife.

(19) 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 or fauna." Imbalance

includes situations when nutrient additions result in nuisance

species as defined in Florida Administrative Code Rule 17-

302.200(14), or when nutrient additions result in violation of

other standards contained in Chapter 17-302 as defined in Rule

17-302.510(3) (j). In the case of the Park and Refuge,

imbalance specifically shall include nutrient additions that

result in, but are not limited to, replacement of native

periphyton algal species by more pollution-tolerant algal

species, loss of the native periphyton community or, in

advanced stages of nutrient pollution, native sawgrass and wet

prairie communities giving way to dense cattail stands or

other nutrient-altered ecosystems, which impair or destroy the

ability of the ecosystem to serve as habitat and forage for

higher trophic levels characteristic of the Everglades.

Numerical interpretation of imbalance shall specifically

include an array of indices to measure sensitivity of the

ecosystem to small changes in nutrients, such as nutrient

cycling processes and the basic components of the Everglades

ecosystem, including periphyton and other sensitive indicators

of nutrient enrichment. The results of the Research and

4

Monitoring Program will be used will be used to determine
numerically the

undesirable level of nutrients that cause an imbalance.

G.     "Interim concentration limits" for
the Park shall mean

the concentration limits to be measured at discharges to the

Park and attained by July 1, 1997, as determined in

Appendix A.

H.     "Interim concentration levels" for
the Refuge shall mean

the geometric mean of concentration levels to be measured at

14 interior marsh stations and attained by July 1, 1997, as

determined by Appendix B.

I.     "Long-term concentration limits" for
the Park shall mean

the concentration limits to be measured at discharges to the

Park and attained by July 1, 2002, as determined by

Appendix A.

J.     "Long-term concentration levels" for
the Refuge shall

mean the geometric mean of concentration levels to be measured

at 14 interior marsh stations and attained by July 1, 2002 as

determined by Appendix B.

K.     "Outstanding Florida Waters"
("OFWs") shall mean waters

designated by the Florida Environmental Regulation Commission

pursuant to Florida Administrative Code Rule 17-302.700.

L.     "The Park" shall mean the Everglades
National Park,

including the Park expansion area, as defined in the

Everglades National Park Expansion and Protection Act of 1989,

P.L.101-229.

5

M.     "The Parties" shall mean the United
Sates and the State

Parties.

N.     "The Refuge" shall mean the Arthur
R. Marshall

Loxahatchee National Wildlife Refuge.

O.     "The State Parties" shall mean the
South Florida Water

Management District and Timer E. Powers, in his official

capacity as Interim Executive Director, or his successors; and

the Florida Department of Environmental Regulation and Carol

M. Browner, in her official capacity as Secretary, or her

successors.

P.     "Stormwater Treatment Areas"
("STAs") shall mean the

stormwater management systems that are to be designed,

acquired, constructed and operated by the District in a manner

primarily to provide nutrient removal pursuant to this

Agreement. Use of the term "stormwater" in this Agreement

shall not limit the source or nature of the water to be

treated in the STAs in accordance with this Agreement, and

shall include all water discharged to the EPA through the
S-

5A, S-6, S-7, S-8 and S-150 structures.

Q.     "The SWIM Plan" shall mean the
Surface Water Improvement

and Management ("SWIM") Plan for the Everglades Protection

Area as defined in the Marjory Stoneman Douglas Everglades

Protection Act of 1991, Chapter 91-80, Laws of Florida.

R.     "Technical oversight Committee"
("TOC") shall mean the

committee established in paragraph 18 of this Agreement.

6

S.     "The United States" shall mean the
United States of

America and its agencies, including but not limited to the

United States Department of the Interior, the United States

Environmental Protection Agency ("USEPA"), the United States

Army Corps of Engineers ("The Corps"), and the United States

Department of Agriculture.

T.     "The Water Conservation Areas"
("WCAs") shall mean WCAs

1, 2A, 2B, 3A and 3B as described in District map dated

September
1985.

SETTLEMENT OF CLAIMS

2.     This Agreement settles all claims that
the United States

raises in the Second Amended Complaint, and all counterclaims to

the Second Amended Complaint that the State Parties raise, in

United States et al. v. South Florida Water Management
District et

al., No. 88-1886-CIV Hoeveler
(S.D. Fla.).

INTRODUCTION/BACKGROUND OF PROBLEM

3.     The Parties agree that the Park and
the Refuge are unique and

irreplaceable natural resources. As the major remnants of the

greatly diminished natural Everglades, the Park and the Refuge

contain unmatched, world-renowned examples of biologically rich
and

sensitive ecosystems. The nutrient-lean (oligotrophic) condition

of the aquatic ecosystem is one hallmark characteristic of the

unspoiled Everglades that still exists in the Park, the Refuge
and

other parts of the Everglades. These ecosystems are changed by

even slight increases in nutrient concentrations, particularly

increases in the concentration of phosphorus.

7

A.     At the preset time, the ecological
integrity and

ultimately the survival of the Park and Refuge are threatened by

the inflow of EAA drainage water containing excess nutrients.

Indeed, the high levels of phosphorus in EAA discharges
constitute

the most immediate water quality concern facing the Everglades

system. EAA drainage that flows directly into the Refuge contains

average phosphorous concentrations ten to twenty times higher
than

background concentrations of phosphorus observed at interior
marsh

sites. Water from the EAA eventually flows into the Park through

the WCAs. Thus, maintenance of state water quality standards

within the WCAs is crucial to the ecology of the Park.

B.     Excess phosphorus accumulates in the
peat underlying the

water, alters the activity of microorganisms in the water, and

disturbs the natural species composition of the algal mat

(periphyton) and other plant communities in the marsh. These

disturbed communities deplete the marsh of oxygen, and,
ultimately,

result in native sawgrass and wet prairie communities being

replaced by dense cattail stands or other nutrient-tolerant

ecosystems. The ability of the ecosystem to serve as habitat and

forage for the native wildlife is thereby greatly diminished or

destroyed. These changes constitute imbalances in the natural

populations of aquatic flora and fauna or indicators of such

imbalances.

C.     The Parties agree that surface water
entering the Refuge,

including water entering through the S- 5A and S-6 pumping
stations,

contains nutrient levels that are causing imbalances in the
natural

8

populations of aquatic flora and fauna in violation of state
water quality standards.

D.     The Parties agree that surface water
entering the Park

from the WCAs contains excessive nutrients that are being

accumulated in the soils and sediments downstream of one or more

Park water delivery structures. Once these soils and sediments
are

loaded with excess phosphorus, nuisance species that thrive on

excess phosphorus are able to invade the marsh. The presence of

these excessive nutrients is potentially harmful or injurious to

animal and plant life in the Park. Accordingly, such
nutrient-

polluted water is, or is reasonably expected to be, a source of

pollution in the Park.

E.     The Parties agree that
nutrient-polluted water threatens

to devastate the ecosystems in the Park and Refuge. The Parties

further agree that the actions set forth in this Agreement
are

necessary to halt or prevent imbalances in natural populations of

aquatic flora and fauna and other water quality violations it the

Park and Refuge.

COMMITMENT TO RESTORING AND MAINTAINING WATER
QUALITY

4.     In recognition of the serious and
potentially devastating

degradation threatening the Park and the Refuge as a result of

nutrient-laden waters, and to further a process that resolves

ongoing litigation, the Parties commit themselves to guarantee

water quality and water quantity needed to preserve and restore
the

unique flora and fauna of the Park and the Refuge.

9

5.     The State Parties shall take such
action as is necessary so

that waters delivered to the Park and the Refuge achieve state

water quality standards, including Class III standards, by July
1,

2002. The State Parties commit:

A.     To achieve interim phosphorus
concentration limits and

levels, as reflected in Appendices A and B, by July 1, 1997.

B.     To achieve long-term phosphorus
concentration limits and

levels, as reflected in Appendices A and B, by July 1,
2002.

6.     Compliance with the interim and
long-term total phosphorus

concentration limits and levels set forth in or established

pursuant to this Agreement shall be determined in accordance with

the methodologies and procedures set forth below, including the

Appendices attached to this Agreement. If a conflict arises

between the following summaries and the Appendices, the
Appendices

shall prevail.

TOTAL PHOSPHORUS CONCENTRATION LIMITS FOR THE
PARK

7.     The Parties agree that the interim and
long-term total

phosphorus concentration limits for the Park are as set forth in

Appendix A .

A.     By July 1, 1997, interim
concentration limits for Shark

River Slough must be met. The approximate annual flow-

weighted concentration limit will vary based upon total annual

flow, with a range of less than 14 ppb for a dry year to less

than 9 ppb for a wet year.

B.     By July 1, 2002, the long-term
concentration limits must

be met for the Shark River Slough, Taylor Slough and Coastal

10

Basins. The long-term concentration limits represent the

concentration levels delivered during the OFW baseline period

of March 1, 1978 too March 1, 1979, adjusted for observed

variations The approximate long-term concentration limits

for Shark River Slough also vary with flow, with a range of

less than 13 ppb for a dry year to less than 8 ppb for a wet

year. The long-term concentration limit for Taylor Slough
(S-

332 and S-175) and the Coastal basin (S-18C) is 11 ppb.

C.     Compliance with these concentration
limits is expected to

provide a long-term average flow- weighted mean inflow

concentration of approximately 8 ppb for the Shark River

Slough Basin and 6 ppb for the Taylor Slough and Coastal

Basins. Monitoring of biological responses in the Park will

determine if these limits are sufficient to prevent an

imbalance of flora and fauna; if not, these limits will be

adjusted to prevent an imbalance of
flora and fauna.

TOTAL PHOSPHORUS CONCENTRATION LEVES AND DISCHARGE
LIMITS

FOR THE REFUGE

8.     The Parties agree that the interim and
long-term total

phosphorus concentration levels for the Refuge are as set forth
in

Appendix B. Total phosphorus concentration levels for the Refuge

were calculated from water quality data by the District

from 1978 to 1983.

A.     By July 1,1997, phosphorus loads
discharged from the EAA

will be reduced by approximately 80% to the EPA and 85% to the

Refuge as compared to mean levels measured from 1979 to 1988.

11

B. Interim concentration levels for the Refuge, which are

effective July 1, 1997, are based on the relationship between

phosphorus concentrations measured at the 14 interior marsh

stations and water elevations measured at 3 gauges within the

Refuge. Compliance with these concentrations in water

samples collected monthly at 14 interior marsh stations to

values between 8 and 22 ppb when water elevations in the

Refuge are between 17.14 and 15.42 feet msl, respectively.

C.     Inflows to the Refuge must result in
compliance with

Class III water quality criteria or long-term concentration

levels, whichever are lower, by july 1, 2002, as set forth in

Appendix B. Reseaarch and monitoring will be conducted under

this Agreement to interpret what phosphorus concentration

levels comply with Class III water quality criteria.

D.     The STA and best management
practices ("BMPs") programs

are designed to limit Refuge inflow discharge concentrations

to a long-term average of 50 ppb. DER will require compliance

with a maximum annual discharge limit of 50 ppb for Refuge

inflows if the interim or the lower of the long-term marsh

concentration levels or Class III nutrient criteria are not

being met by the effective dates. By July 1, 2002, if the 50

ppb maximum annual inflow discharge limit is being met but the

lower of the long-term marsh concentration levels or Class III

nutrient criteria is being violated, DER will enforce more

stringent inflow discharge limits.

12

WATER QUANTITY REQUIREMENTS

9.     Quantity, distribution and timing of
water flow to the Park

and Refuge must be sufficient for maintaining and restoring the

full abundance and diversity of the native floral and faunal

communities throughout the Park and Refuge. The Parties shall
take

all actions within their authority necessary to provide adequate

flows to meet the water quantity, distribution, and timing needs
of

the Park and Refuge. The District shall implement mitigation

measures to offset flow reductions to the EPA resulting from

efforts to improve the water quality in the EPA. Additionaly, the

Parties through the TOC shall jointly devlop specific elements of

these actions as part of a basin-wide Everglades ecosystem

resotration plan. Nothing in this Agreement shall limit or

prejudice any rights of the park or Refuge under State or Federal

law to obtain greater or more specific water
quantity.

IMPLEMENTATION OF STORMWATER TREATMENT AREAS

10.     The District commits to purchase,
design and construct STAs as

set forth in Appendix C.

A.     The primary strategy to remove
nutrients from

agricultural runoff is the construction and operation of STAs,

which are large scale wetland treatment systems constructed by

the District. These STAs will mainly receive stormwater

directly from the primary agricultural drainage canals and

process it for the removal of nutrients through intensive

management. Deliveries may be made to the STAs from Lake

Okeechobee or other sources. These areas will be designed,

13

operated and managed primarily to purify the water before it

enters the WCAs, the Park and the Refuge. In addition, their

size and location may allow significant improvement in the

manner in which water is introduced into the natural areas.

By allowing the reintroduction of sheet flow into tens of

thousands of acres of Everglades, the completion of these

projects has the potential for improving Everglades

hydroperiod.

B.     The District agrees to acquire the
lands set forth in

Table 1. Table 1 provides an estimate of the effective

treatment acres of STAs. The design sizes and configurations

of STAs are based on the need to achieve an interim outflow

concentration of approximately 50 ppb at each STA outflow

point. The Class III phosphorus criteria when interpreted by

research will be implemented by July 1, 2002, if lower than

the long-term concentration levels. The size of each STA is

based on the assumption that the volume of flows experienced

during the 1979 to 1988 base period from each tributary basin

would be treated with no hydraulic bypass. These STA acreages

(with future adjustments as may be required based upon

performance as set forth in Appendix C) and the BMP regulatory

program provide the control programs which are anticipated to

meet both the interim and long-term Park and Refuge phosphorus

concentration limits and levels. However, notwithstanding their

implementation of these control programs, it the concentration

limits and levels are violated, then the State Parties will

14

implement additional remedies, such as any necessary expansion

of STAs, more intensive management of STAs, a more stringent

EAA regulatory program, or a combination of the above. The

State Parties shall not implement more intensive management of

the STAs as the sole additional remedy.

C. Table
1.     STA Effective Acres

Basin

STA

Approx. Total

Acres to be Acquired

Approx.
Effective
Treatment
Acres

S-5A

STA-1

12,500

11,800

S-6

STA-2

4,000

3,700

S-7

STA-3

5,270

4,950

S-8

STA-4

12,930

12,150

Total:

34,700

32,600

D.     The 11, 800 acres of STA-1 includes
7,400 effective

treatment area aces which will be constructed and in

operation by July 1, 1997, and 4,400 effective treatment area

acres which will be constructed and in operation by July 1,

2002, if the long-term phosphorus concentration levels for the

Refuge are not met by July 1, 2000. Each of the four major

drainage basins in the EAA will have a treatment system. They

will be designed to treat all the flow from the EAA with

respect to the 1979-1988 base period. If long-term

concentration limits and levels are not met by July 1, 2002,

additional acreage will be required as described in Appendix

C.

15

RESEARCH AND MONITORING

11.     The Parties agree to the research and
monitoring program set

forth in Appendix D.

A.     Several aspects necessary to achieve
compliance with this

Agreement must be defined by additional research. The

research objectives are to:

1.     Numerically interpret the
narrative Class III

nutrient water quality criteria (i.e., the nutrient

levels which cause an imbalance of flora and fauna in the

units of the EPA); and

2.     Assess current and continuing
responses of the EPA

to nutrient input levels resulting from the efforts to

achieve interim and long-term concentration limits and

levels.

B.     A key component of these research
efforts is the

development (including appropriate data collection) of models

of phosphorus dynamics in the EPA. For example, one priority

would be an understanding of the relationships between

phosphorus input and water quality at the 4 interior marsh

stations in the Refuge, including definition of the future

role of recycling of previous excess phosphorus inputs.

C.     Studies designed to test the
response of key ecosystem

components and processes to different phosphorus input rates

are another important focus on the research program. An array

of indices will be used to measure sensitivity of the

ecosystem to small changes in nutrients. These will include

16

nutrient cycling processes and the basic components of the

Everglades ecosystem, such as periphyton, and other sensitive

indicators of nutrient enrichment. These indices will be used

to determine the criteria for compliance in the EPA with the

Class III nutrient criteria under the terms of this
Agreement.

D.     Research on the performance of STAs
and BMPs is also

required to ensure achievement of the intent of this

Agreement.

E.     An intensive program of monitoring
is required to track

compliance with interim and long-term concentration limits and

levels, as well as the response of Everglades flora and fauna

to the phosphorus levels achieved. The monitoring program

will also provide data for modeling research.

F.     The State Parties shall be primarily
responsible for the

research and monitoring set forth in this Agreement, in the

Marjory Stoneman Douglas Everglades Protection Act and in the

Surface Water Improvement and Management Act, with support

from the United States. The National Park Service, the US

Fish and Wildlife Service, the USEPA and the Corps will assist

in the research and monitoring as appropriate. For example,

funds available under section 319 of the Clean Water Act can

be granted to the State parties by USEPA in support of

approved monitoring programs to assess the effectiveness of

BMPs and STAs. All aspects of the research and monitoring

programs will be directed by the TOC.

17

<REGULATORY PROGRAM

12.     The Sate Parties agree to initiate a
regulatory program as

set forth in Appendix E.

A.     The goal of the regulatory strategy
is to reduce present

total phosphorus loads from the EAA to each STA by at least 25%,
by

February 1996. An interim target reduction of 10% in total

phosphorus load from the EAA will be required by February 1994.

The District will adopt rules to implement the regulatory program

by April 1992. The rules are scheduled to be effective in May

1992. At a minimum, by July 1993 the DER or the District shall

require and issue permits under an appropriate permitting
vehicle,

regulating water quality for all discharges in the EAA, in a

manner consistent with the terms of this Agreement; or, if
permits

are not issued by that date, institute appropriate compliance and

enforcement action, as provided in paragraph 14.

B. The regulatory program will require permits for the

discharge of water from the internal drainage systems in the EAA.

Applicants that demonstrates sufficient ability and authority may
be

eligible for a Master Permit for a defined geographic area.

Applicants will be required to meet specified long-term
phosphorus

load allocations as described in Appendix E. Applicants will be

required to institute a BMP Program designed to meet the
applicable

interim and long-term phosphorus basin load allocation.
Compliance

with these basin load allocations should result in the interim
and

long-term (1996) target reduction of 10% and 25% respectively in

total phosphorus load from the EAA, being achieved. Applicants

18

will also be required to submit acceptable water quality
monitoring

plans designed to document compliance with annual load
allocation,

BMP implementation and operation, BMP effectiveness, and

identification of high episodic phosphorus events.

C.     EAA permittees will be required to
submit quarterly and

annual reports of water quality monitoring results to the
District.

Permittees will also be required to submit annual reports to the

District summarizing BMP implementation and effectiveness.

D.     Regulatory program enforcement will
strive to identify

critical problems be for unacceptable loads occur. Compliance
with

total phosphorus load allocations will be determined by measuring

appropriate adjustment for hydrologic variability with respect to

the 10 year base period, such as an adjustment for rainfall

considering that year's rainfall versus average annual rainfall

over the 10-year base period.

E.     Permittees exceeding the permitted
areal phosphorus load

allocation for February 1994 or 1996 shall be required to submit
to

the District a plan for monitoring on a continuous basis and a

proposed compliance plan and schedule designed to achieve

compliance within 6 months.

F.     The District will review the
permittee’s plan and

schedule. If they are acceptable, the District will amend the

permit accordingly. If they are unacceptable, the District will

take appropriate enforcement action as se t forth in paragraph 14
or

Appendix E.

19

IMPLEMENTATION AND ENFORCEMENT PROCEDURES

13.     The State Parties shall use the full
scope and authority of

their planning, regulatory, permitting, enforcement and public

works powers, to bring the waters in the Park and Refuge into

compliance with the interim and long-term concentration limits
and

levels in this Agreement by July 1, 1997 and July 1, 2002

respectively. Without constituting a limitation on their ability

to exercise this authority, the State Parties shall exercise such

authority as follows:

A.     The State Parties shall develop an
overall plan to

restore and protect the Park and the Refuge pursuant to the

following schedule:

(1)     The District shall develop a SWIM
Plan, consistent

with Appendices A through E, and approve it for

presentation to DER pursuant to Section 373. 456 (1), F.S.,

by the October 1991 Governing Board meeting.

(2)     DER shall submit to the District
within 30 days

after receipt of the approved SWIM Plan its determination

of consistency with state water policy and the state

comprehensive plan in accordance with Section 373.456(2),

F.S.

(3)     The District shall take final
agency action in

adopting the SWIM Plan by March 31, 1992.

(4)     The District shall apply to DER
for 5-year interim

permits by October 1, 1991, pursuant to the provisions of

Section 373.4592(6), F.S. The application shall be

20

designed to achieve the interim concentration limits and

levels as set forth in Appendices A and B. At a minimum,

the application shall include the interim concentration

limits and levels, the nutrient removal(STA) program,

proposed regulatory program and research and monitoring

program, consistent with Appendicies A through E. Prior

to expiration, the District shall apply for renewal of

the permits as provided in the Section 373.4592(6), F.S.

to achieve the long-term concentration limits and levels

set forth in Appendices A and B.

(5)     The DER shall take final agency
action on the permit

applications on or before July 1, 1992; or,

alternatively, initiate appropriate compliance and

enforcement actions set forth in paragraph 14 if

permits are not issued by then.

(6)     The District shall initiate
acquisition for the STAs

as set forth in the following table:

STA Acquisition Schedule

Basin

STA

Approx.
Total
Acres to be
Acquired

Date
Acquisition
to be
Initiated

S-5A

STA-1

12,500

October 1, 1991

S-6

STA-2

4,000

August 1, 1991

S-7

STA-3

5,270

August 2, 1882

S-8

STA-4

12,930

August 1, 1992

(7)     The State Parties all seek
expedited resolution of

any judicial or administrative proceedings with regard to

implementation of their commitments in this Agreement in

order to meet the schedules set forth in this
Agreement.

21

B.     The proper concentration limits and
levels for total

phosphorous in surface waters entering and within the Park and

Refuge and nutrient removal acreage required to improve and

protect water quality are based on the scientific and

technical evidence developed by the Parties and set forth and

referred to in the Appendices. In any administrative hearing

on the SWIM Plan or permits, the State Parties shall support

and defend the SWIM Plan and permits consistent with

Appendices A through E. The United States shall provide

technical assistance to support the State Parties in

accordance with paragraphs 17 and 18.

14.     The State Parties acknowledge that
they have the authority to

initiate compliance and enforcement action as set forth below.

This Agreement does not constitute a limitation on the ability of

the State Parties to exercises such authority.

A.     The DER acknowledges that it has the
authority to require

persons reasonably expected to be sources of pollution

affecting the Park or Refuge to undertake action necessary to

achieve and maintain compliance with water quality standards

in the Park and Refuge. Such authority includes the

following:

(1)     Initiation of administrative or
civil enforcement

action against persons responsible for source of

pollution affecting the Park and Refuge to correct or

eliminate the source of pollution, and to seek civil

penalties and recovery of damages for
violations.

22

(2)     Issuance, modification or
revocation of permits for

such persons.

B.     The District acknowledges that it
has the statutory

authority to require persons constructing, altering, operating

or maintaining surface water management or stormwater

management systems, using or withdrawing water, or connection

to or making use of works of the District, to undertake action

necessary to achieve and maintain compliance with water

quality standards in the Park and Refuge. Such authority

includes the following:

(1)     Initiation of administrative or
civil enforcement

action against persons responsible for the activities

described above to correct or eliminate the sources of

pollution and to seek civil penalties and recovery of

damages for violations.

(2)     Issuance, modification or
revocation of permits for

such persons.

C.     In the event that the schedule set
forth in this

Agreement for achieving and maintaining timely compliance with

water quality standards is not met, the State Parties commit

to exercise their authority as set forth in this paragraph to

initiate appropriate action to achieve and maintain compliance

with water quality standards.

15.     The Corps shall apply to DER for
stormwater management

permit(s) pursuant to Section 373.416, F.S., for the operation of

S-10, S-11, and S-12 water control structures, and for the

23

construction ad operation of new structures which may affect the

Park or Refuge, and shall comply with reasonable permit terms and

conditions relating to the abatement of the water quality
problems

addressed in this Agreement. For existing structures S-10, S-11,

S-12, the Corps shall apply on or before October 1, 1991. The DER

anticipates that stormwater management permits for these existing

structures may include monitoring, adjustments to regulatory

schedules and participation in research consistent with this

Agreement. The DER shall not require the Corps to construct any

STAs as a part of the operating permit(s) to be issued for the
S-

10, S-11, and S-12 water control structures. The Corps agrees to

cooperate in the modification of its regulation of the central
and

Southern Florida Project in order to support the objectives set

forth in this Agreement.  New structures to be designed
and

constructed by the Corps shall be designed and constructed in a

manner consistent with this Agreement. Nothing in this Agreement

shall alter or affect the obligations of the parties to the

Memorandum of Understanding between the Corps and DER dated

December 4, 1979, as amended. Future projects designed by the

United States which affect the Park or Refuge shall consider the

environmental and water quality commitments set forth in this

Agreement.

PRESERVATION AND PROTECTION OF THE RIGHTS OF THE

MICCOSUKEE AND SEMINOLE TRIBES

16.     Nothing in this Agreement shall
diminish or alter the

governmental authority and powers of the Miccosukee Tribe of

24

Indians of Florida and the Seminole Tribe of Florida, or diminish

or alter the rights of those tribes, including rights under any

tribal agreement with any Party to this Agreement. No land of

either the Miccosukee Tribe of Indians of Florida or the Seminole

Tribe of Florida shall be used for STAs to be established under

Appendix C of this Agreement without the consent of the Tribe

involved.

MUTUAL COOPERATION

17.     The Parties agree that mutual
cooperation is essential to

implementing the actions necessary to achieve the commitments set

forth in this Agreement. To accomplish this the Parties will

provide assistance to each other in their responsibilities under

this Agreement, including but not limited to the sharing of

information, defense of this Agreement against challenges by

others, support for the acquisition of funds to assist in the

accomplishment of these commitments, and the provision of
technical

and scientific assistance to any party seeking to defend in legal

proceedings any of the commitments in this
Agreement.

TECHNICAL OVERSIGHT COMMITTEE (TOC)

18.     Each of the persons designated in
paragraph 19A shall appoint

one technical representative, and one alternate to the TOC. The
TOC

will plan, review and recommend all research, monitoring and

compliance, conducted pursuant to the terms of this agreement,
and

will consider technical advice and assistance for each activity
as

necessary from the appropriate agencies and from other state and

federal agencies and consultants. The TOC will make technically

25

based recommendations by consensus approach; when a technically

based recommendation cannot be reached by consensus, a 4 out of 5

majority, the impasse will be reported back to the Parties for

mediation as provided for in paragraph 19.

SETTLEMENT OF DISPUTES

19.     The Parties desire and agree to use
their best efforts to work

cooperatively toward achieving the restoration and maintenance of

water quality in the Everglades. The Parties shall endeavor at
all

times to maintain a spirit of cooperation and to settle

disagreements through good faith negotiation between or among

themselves.

A.     The following persons or their
designs are responsible

for notifying their respective counterparts of the initiation

of the procedures set forth in this paragraph:

(1)     Superintendent of the Park;

(2)     Manager of the Refuge;

(3)     Secretary of DER;

(4)     Executive Director of the
District; and

(5)     District Engineer, Jacksonville
District, U.S. Army

Corps of Engineers.

B.     The Party seeking to utilize these
provisions must notify

all other Parties, counsel of record for the United States,

and the general counsels for the State Parties, of the

initiation of these procedures.

C.     The Party seeking relief shall first
notify the other

Parties to this Agreement in writing by certified mail, return

26

receipt. Representatives of the Parties shall arrange to meet

within 15 days of receipt of such notice for the purpose of

consulting and resolving the concern.

D.     If after meeting the Parties cannot
resolve the concerns

within a reasonable time, any Party may require meditation.

The Parties shall attempt to agree upon a single mediator.

Alternatively, the State Parties shall designate the other. Any
efforts

for mediation shall conclude within 60 days of the receipt of

the certified letter unless the Parties otherwise agree in

writing.

E.     If consultation or mediation has
failed to resolve the

concerns, any party shall be entitled to apply to the Court

for judicial resolution of the disagreement. Such application

shall be by motion setting forth the matter in disagreement

and the relief being requested to address the disagreement.

No party shall be entitled to file such a motion, or otherwise

to seek judicial resolution of the disagreement, unless and

until the procedures set forth above have been tried and

exhausted.

F.     Resort to the procedures contained
in this paragraph

shall not extend or postpone any Party's obligations under

this Agreement.

27

LITIGATION COSTS

20.     Each party shall bear its own costs
and fees, and each party

waives any right to seek penalties and damages, for all
proceedings

in this case up to and including entry of an order approving and

incorporation this Agreement as provided in paragraph 22. Nothing

in this paragraph shall constitute a limitation on any party to

seek appropriate relief in conjunction with any action to

enforce any of the terms of this
Agreement.

INTEGRATION CLAUSE

21.     This Agreement incorporates the
entire agreement between the

District, DER and the United States with respect to the claims

brought by the United States and the counterclaims bought by the

State Parties. No part of this Agreement shall be binding on the

Parties unless it is approved in its entirety by Court order,

unless the Parties agree otherwise in
writing.

JURISDICTION

22.     The Parties acknowledge that the
Court has jurisdiction over

this action, but all Parties reserve their rights to raise

jurisdictional issues in any other actions. The parties agree to

the entry of the proposed order attached hereto as Exhibit 1 by

which the Court shall retain jurisdiction over this action for
the

purpose of enabling any of the Parties to this Agreement to apply

to the Court at any time for such further orders of directives as

may be necessary or appropriate for enforcement or modification
of

this Agreement.

28

FORCE MAJEURE

23.     The parties recognize that
notwithstanding their compliance

with the commitments contained herein, events beyond their
control

may prevent or delay one or more commitments. Such events may

include natural disasters as well as unavoidable legal barriers

or restraints, including those arising from the actions of
persons

not Parties to this Agreement. Force majeure shall not include

increased costs of activities covered by this Agreement, whether
or

not anticipated at the time such activities were initiated. Force

majeure shall not continue beyond the circumstances and
conditions

that prevent timely performance, and shall not apply if
alternative

means of compliance are available. If a Party is of the opinion

that such an event has occurred, the Party has an affirmative

obligation to initiate immediately the dispute resolution
provision

set forth in paragraph 19, as a prerequisite to seeking relief
from

that Party's commitments. The Party claiming force majeure shall

have the burden of proof.

29

DATED this 26th day of July, 1991.

Secretary
Florida Department
of
Environmental Regulation

_______________________
Carol M. Browner

Acting Assistant
Attorney
General
Environmental and Natural
Resources
Division

____________________
Barry M. Hartman

Chairman of Governing Board
South Florida Water
Management
District

_________________________
Allan Milledge

United States Attorney
Southern District of Florida

_________________________
Dexter W.
Lehtinen

Interim Executive Director
South Florida Water
Management
District

__________________________
Timer E. Powers

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