Orders from

United States v.
SFWMD, et al.,

UNITED STATES
DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI
DIVISION

Case
No. 88-1886-CIV-HOEVELER

Memorandum Opinion
and Order Entering
Settlement Agreement as Consent Decree

•
Style
•  I.
The Agreement
•  II.
Defendant-Intervenors' Objections
•  II.
A.   Impact on Nonconsenting
Parties
•  II.
B.   The Court's Authority to Enter
a

Consent Decree
•  II.
C.   The Attorney General's Authority
to

Maintain and Settle this Action
•   II.
D.   Infringement of Federal
Agency

Discretion
•   II.
E.  The Flood Control Act
•
II.
G.  NEPA
•   III.
Conclusion

•  Footnotes:

Footnote
1   |   Footnote
2    |   Footnote
3 | Footnote
4   |   Footnote
5    |   Footnote
6 | Footnote
7   |   Footnote
8    |   Footnote
9 |  Footnote
10 |   Footnote
11   |  Footnote
12

•  Settlement
Agreement
•  (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; TILFORD
CREEL,
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.
FEB 24,
1992
Docket #: 1205

MEMORANDUM OPINION AND ORDER ENTERING
SETTLEMENT
AGREEMENT AS CONSENT DECREE

847 F. Supp 1567 (S.D. Fla
1992)

The Court on this day approves and enters as a consent decree

the settlement agreement ("Agreement") executed by plaintiff
United

States and defendants South Florida Water Management District

("District") and the Florida Department of Environmental
Regulation

("DER") . FN
1

The Agreement resolves all claims by the original parties in

a complex environmental lawsuit filed more than three years ago
by

the United States against the District and DER for alleged

contamination of the Loxahatchee National Wildlife Refuge (the

"Refuge") and the Everglades National Park (the "Park") caused by

2

nutrient-rich farm runoff in waters released into the
Refuge and

Park through structures operated by the District. The
United

States claims that high levels of phosphorous in
farm-water runoff

have altered the fragile ecosystems of the Park and
Refuge,

producing dense cattails in place of the native
sawgrass and wet

prairie communities and endangering indigenous plant
and animal

life.

The Agreement is supported by the numerous environmental

groups permitted to intervene in this action and opposed by

defendant-intervenors Cities of Belle Glade and Clewiston (the

"Cities" ) and several agricultural organizations ("Farm
Interests")

(collectively referred to as "defendant-intervenors"). As set

forth below, the Court finds that the objections to the Agreement

raised by defendant-intervenors, with one exception, are either

satisfied by this Order or are without merit. The exception to

which the Court refers is the objection based on the National

Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et
seq.

Nonetheless, because rejection of the Agreement on this ground

alone would frustrate the very purpose behind the statute, the

Court will require compliance with NEPA simultaneous with, and
not

as a condition to, implementation of the Agreement.

3

I. THE AGREEMENT

A review of the terms of the Agreement reveals an ambitious

strategy to restore and preserve the Everglades ecosystem. In

broad outline, the Agreement establishes interim and long-term

phosphorous concentration limits for the Park and Refuge and

delineates specific remedial programs designed to achieve these

limits. The remedial programs consist of stormwater treatment

areas ("STAs") and a regulatory permitting program aimed at

agricultural discharges from the Everglades Agricultural Area

("EAA"). The STAs, to be constructed by the District on 35,000

acres of land in the EAA, are large water filtration marshes

designed to process and remove nutrients from agricultural runoff

destined for the Park and Refuge. The STAs will thus act as a

"buffer zone" between the agricultural area and the Park and

Refuge, receiving stormwater directly from agricultural drainage

canals and purifying the water before it enters the Park and

Refuge. The regulatory program complements and lessens the work
of

the STAs by seeking to reduce the level of phosphorous in

agricultural runoff entering the STAs. Pursuant to this program,

the District or DER will regulate the water quality of
agricultural

discharges through a permitting scheme by which permit applicants

will be required to comply with designated phosphorous load

allocations and adopt best management practices aimed at reducing

the levels of phosphorous in agricultural discharge. The

combination of the STAs and the regulatory program are expected
to

achieve an 80% long-term reduction in phosphorous loads from the
EAA.

4

In addition to these remedial measures, the Agreement

establishes a research and monitoring program, a technical

oversight committee to supervise the research and monitoring, and

a schedule for the completion of administrative actions
consistent

with the terms of the Agreement.

The Agreement is notable in at least two respects. First, the

basic programs and measures set forth in the Agreement track

substantially the requirements of the Marjorie Stoneman Douglas

Everglades Protection Act ("Everglades Protection Act"), Fla.
Stat.

§ 373.4592 (1991), a state legislative measure enacted in
response

to this lawsuit. Among other things, the Everglades Protection
Act

requires the District to establish:

- strategies for developing programs and projects
designed
to bring facilities into compliance with
applicable water
quality standards and restore the
Everglades hydroperiod,
including the identification and
acquisition of lands for the
purpose of water t reatment
or implementation of stormwater
management systems... and
the development of a permitting
system for discharges
into waters managed by the District;

- strategies for establishing research programs to
measure
program and proJect effectiveness;

- recommended ambient concentration levels and diacharge

limitations for phosphorous appropriate to achieve and

maintain compliance with applicable state water quality

standards;

- proposed interim concentration levels designed to
achieve
[compliance with water quality standards] to the
maximum
extent practicable; and

- a monitoring program to ensure the accuracy of data
and
measure progress toward achieving interim
concentration levels
and applicable water quality
standards.

§§
373.4592(3)(a)1,     373.4592(3)(a)4,
373.4592(6)(a)1,
373.4592(6)(a)2,
373.4592(6)(a)5.

5

These strategies and proposals are to be incorporated in the

Surface Water Improvement and Management ("SWIM") plan and
District

permit applications required under the Everglades Protection Act.

Thus, while the Agreement undoubtedly goes further than the

Act in terms of specificity, its general approach to the problem
is

the same.

Second, and more important from the standpoint of the Cities

and the Farm Interests, the Agreement is not self-executing, but

rather is subject to Florida's Administrative Procedures Act

("APA"), Fla Stat. § 120.50 (1991) et seq. , which affords
affected

parties the opportunity to challenge proposed agency action.

Under the APA, a party whose substantial interests are or will

be affected by agency action is entitled to a Section 120.57
trial-

type hearing if there is a disputed issue of material fact and,

ultimately, an appeal to the appropriate Florida District Court
of

Appeal. Fla. Stat. §§ 120.57, 120.68. The Section 120.57 hearing,

presided over by an impartial hearing officer, is infused with

most, if not all, of the procedural attributes of a bench trial.

The parties are permitted an opportunity to respond, to present

evidence and argument on the issues involved, to conduct
cross-

examination and submit rebuttal evidence, to file exceptions to
the

hearing officer's recommended order, and to be represented by

counsel. § 120.57(1)(b)4. The parties may also submit pleadings

and are afforded discovery prior to the hearing in accordance
with

the Florida Rules of Civil Procedure.     §§
120.57(1)(b)5,

120.58(1)(b). As the Section 120.57 hearing serves the dual

6

purpose of adjudicating disputed facts and enabling parties

adversely affected by the proposed action to change the agency's

mind, the role of the hearing officer is to make findings of fact

and determine if the evidence supports, or warrants a conclusion
at

odds with, the proposed action. See Heifetz v. Department of

Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA
1985);

Capeletti Bros. v. State Dep't of Gen. Servs., 432 So.2d
1359, 1363

(Fla. 1st DCA 1983).

In considering the hearing officer's recommended order, the

agency must accept the hearing officer's findings of fact if they

are supported by competent substantial evidence and may not
reweigh

evidence, rejudge the credibility of witnesses, or use
conclusions

of law to overturn those findings of fact in order to fit a
desired

result. § 120.57(1)(b)10; See Heifetz, 475 So.2d at 1281;

South Florida Water Management Dist. v. Caluwe, 459 So.2d
390, 394-

95 (Fla. 4th DCA 1984); McDonald v. Dep't of Banking and
Finance,

346 So.2d 569 (Fla. 1st DCA 1977). If the agency determines that

the officer's findings of fact are not supported by the record,
the

reasons underlying this conclusion must be stated with

particularity in its final order. § 120.57(1)(b)10. The agency's

final order, and thus its compliance with the above requirements,

is subject to judicial review in the Florida District Courts of

Appeal. See § 120.68. It is by virtue of these procedures
that

the APA ensures that an agency's final action is supported by the

evidence developed in the record.

Because the regulatory measures called for in the Agreement

7

are to be undertaken by the District and DER and therefore

constitute "agency action" subject to the APA, substantially

affected parties, including the Cities and the Farm Interests,
will

be able to subject these measures to independent administrative
and

judicial scrutiny. To the extent, then, that the agencies'

implementation of the Agreement may ultimately impose burdens on

the Cities and the Farm Interests, these burdens will be imposed

only as a result of an administrative process in which the Cities

and Farm Interests are allowed to participate, and only if they
are

warranted by the facts as developed in that process.

The Cities and the Farm Interests do not dispute the adequacy

of the APA in protecting their interests with regard to the
actions

contemplated by the Agreement. To the contrary, they have made it

clear that they would prefer that the issues raised by this
lawsuit be

adjudicated in the state administrative process. Their primary

concern is that to the extent that the Agreement binds the
agencies

to a particular course of regulatory action, their administrative

rights are rendered meaningless because the Agreement will have

predetermined the final agency action. See Capeletti
Bros., 432

So.2d at 1364 ("Section 120.57 proceedings are intended to

formulate final agency action, not to review action undertaken

earlier and preliminarily.") If, in fact, the Agreement is a

fait accompli, then an administrative hearing is an
exercise in

futility.

In response to this concern, the settling parties have

submitted a Joint Status Report which makes clear that
the

8

Agreement is not intended to require the agencies to
favor the

terms of the Agreement over a hearing officer's
contrary findings

of fact supported by competent evidence. As interpreted
by the

Court, the intention of the settling parties is that
the agencies

are bound in only two respects as far as the
administrative process

is concerned. First, the agencies must propose those
measures set

forth in the Agreement which are subject to the APA.
They are not,

however, required to adopt these measures as final
action in the

face of conflicting findings of fact or if persuaded
that such

action goes against the weight of the evidence
established in the

Section 120.57 hearing. Indeed, should the state
administrative

process result in a finding inconsistent with that
contemplated by the

Agreement, the state agencies, consonant with their
obligations

under state law, must respect that result. Second, the
agencies

are "bound" in the sense that if the outcome of the
administrative

process precludes them from undertaking final action
consistent

with the terms of the Agreement, and if the settling
parties are

unable to agree to a modification of the Agreement
after resort to

dispute resolution or upon a claim of force
majeure,FN
2 the United

States retains the right to return to this Court and have the

dispute resolved in a federal forum. Significantly, the Agreement

does not dictate how this dispute must be resolved.

So construed, the Agreement imposes a process rather than a

result, in effect recognizing an administrative framework while

9

preserving this Court's ultimate jurisdiction over this lawsuit.

As indicated at the December 4, 1991, status conference, the

Court proposes to address defendant-intervenors' concerns with

regard to the APA by incorporating in this Order, and making part

of the Agreement, terminology which insures that the
administrative

hearing is meaningful. To that end, the following language, taken

in large part from the Joint Status Report and the settling
parties'

submission of proposed language, is hereby made part of

the Agreement FN
3:

1.     The Agreement
does not predetermine the outcome of any
state proceedings
required under Chapter 120, Florida Statutes.
Accordingly, any
provision of the Agreement that under Florida law
must be
implemented by the state agencies through administrative

proceedings governed by Chapter 120, Florida Statutes, shall
have
no binding effect upon the agencies within such
administrative
proceedings and with regard to the agencies'
consideration of the
hearing officer's recommended order. In
any such proceedings,
points of entry will be provided as
required by law.

2.     Nothing in the
Agreement is intended or operates to
abrogate the District's
and DER's duties to act in accordance with
Florida law.
Indeed, the Agreement requires the District and DER
to fulfill
their obligations under existing state law, including
the duty
to weigh competing evidence on issues of fact or policy,

particularly in light of an impartial administrative hearing

officer's decision that the evidence warrants a conclusion at
odds
with the Agreement. Specifically, the Agreement does not
require
the agencies to favor the terms of the Agreement over
a hearing
officer's contrary findings of fact supported by
competent,
substantial evidence.

10

Having thus clarified the intention and operation of the

Agreement, the Court now turns to the remaining objections raised

by the Cities and the Farm Interests.

II. DEFENDANT-INTERVENORS' OBJECTIONS

The Cities and the Farm Interests advance a number of

arguments in opposition to Court approval of the
Agreement. The

principal contentions raised are that: (1) the
Agreement illegally

imposes duties and obligations on
defendant-intervenors and

undermines their rightful interests; (2) the Court
lacks authority

to enter a consent decree based on state law claims;
(3) the

Attorney General lacks authority to maintain and
settle this action

without the concurrence of other federal agencies; (4)
the

Agreement impermissibly restricts the discretion of
federal

agencies by requiring them to undertake certain
actions in

furtherance of the Agreement's objectives; (5) the
Agreement

violates the Flood Control Act; and (6) the remedial
measures

contemplated by the Agreement constitute "major
federal action"

under NEPA, necessitating preparation of an
environmental impact

statement. These arguments are addressed, in turn,
below.FN
4

11

A. Impact on Nonconsenting parties

Defendant-intervenors contend that the Agreement impermissibly

imposes direct duties and obligations upon them, or otherwise

undermines their rightful interests. See Local No. 93 v. City
of

Cleveland, 478 U.S. 501, 529-30 (1986). In particular, the
Farm

Interests cite the regulatory permitting program, with its

requirements of reduced phosphorous loads in farm runoff and

adoption of best management practices, and the acquisition of

35,000 acres of farmland for construction of the STAs. The Cities

contend that the Agreement requires them to incur financial

obligations, obtain permits not heretofore required, and modify

existing permits.

This argument misconstrues the nature of the Agreement, as

clarified above. The Agreement does not require anything of

defendant-intervenors nor does it accomplish of its own force and

effect any of the terms which might impair their interests.

Certainly the defendant-intervenors cannot claim to incur burdens

as a result of actions which are merely proposed. Yet as far as

their interests are concerned, that is all the Agreement

accomplishes. As noted earlier, any duties or obligations imposed

upon defendant-intervenors will come about only as a result of an

administrative process in which they are allowed to participate,

12

and not by virtue of this Court's approval of the Agreement.

If indeed it turns out that the defendant intervenors are

unable to persuade an impartial hearing officer that the terms of

the Agreement are scientifically unsound or otherwise
unwarranted,

the result is-neither "unreasonable nor proscribed"
United

States v. City of Miami, 664 F.2d 435, 441 (5th. 1981).

B. The Court's Authority to Enter a Consent
Decree

Defendant-intervenors also argue that the Court lacks

authority to enter a consent decree based on state law claims.

This contention is both factually and legally incorrect.

Inexplicably, defendant-intervenors fail to recognize the

presence of the federal contract claims in Counts III and IV of
the

United States' Second Amended Complaint. These claims, alleging

breaches of two separate contracts between the United States and

the District, are governed by federal, not state, law. See

United States v. Seckinger, 397 U.S. 203, 209-10 (1970);
United

States v. Allegheny County, 322 U.S. 174, 183 (1944),
overruled on

other grounds by United States v. City of Detroit, 355
U.S. 466

(1958) (as noted in United States v. Fresno County , 429
U.S. 452,

462 n. 10); Clearfield Trust Co. v. United States, 318
U.S. 363,

366 (1943); United States v. South Florida Water Management
Dist.,

922 F.2d 704, 711 (11th Cir. 1991).

Even if the Agreement seeks to vindicate only the state law

claims, the Court has authority to enter a decree resolving those

claims as a result of its subject matter jurisdiction under 28

13

U.S.C. § 1345. As long as a consent decree "spring(s) from and

serve(s) to resolve a dispute within the court's subject matter

jurisdiction," the court is empowered to enter the decree if it

comes within the scope of the case made by the pleadings and

advances the objectives of the law it is intended to enforce.

Local No. 93 v. City of Cleveland, 478 U.S. at 525.
Accord Sansom

Comm. v. Lynn,735 F.2d 1535, 1538 (3d Cir. 1984);
Camden County

Jail Inmates v. Parker, 123 F.R.D. 490, 497-98 (D.N.J.
1988). Or,

as one court has stated: "The power of a court to enter a consent

decree emanates from its authority to adjudicate the rights of
the

parties in the first instance." Lasky v. Continental Products

Corp., 804 F.2d 250, 254 (3d Cir. 1986).

Kasper v. Board of Election Comm'rs, 814 F.2d 332 (7th
Cir.

1987), cited by defendant-intervenors, is inapposite. In that

case, the Seventh Circuit found that an overriding federal
interest

was necessary to justify a consent decree which would have

committed the defendant, the Chicago Board of Election
Commissions,

to violate state law. Kasper thus stands for the
proposition that,

in the absence of a violation of federal law which might warrant

relief inconsistent with state law, state agencies may not by

consent decree "liberate themselves from the statutes enacted by

the legislature that created them.. Id. at 342. Nothing
about

this holding suggests that a consent decree cannot be based on

state law claims.

In short, because this Court has subject matter jurisdiction

over the United States' claims, it has the power to enforce the

14

Agreement as a consent decree.

C. The Attorney General's Authority
to
Maintain and SettleThis Action

The Farm Interests allege that the Attorney General lacks

authority to maintain, and therefore settle, this action because,

according to the Farm Interests, the authority to pursue the
claims

presented in this case belongs exclusively to other federal

agencies whose concurrence in the filing and maintenance of this

suit has not been sufficiently established. The question of the

Attorney General's authority, initially raised in the Farm

Interests' brief in opposition to the motions for approval of the

settlement, also forms the basis of a separate Motion for Court

Inquiry filed by the Florida Sugar Cane League, Inc. (the

"League"), a member of the Farm Interests. The Court has

accordingly considered the authority cited in both memoranda and

finds nothing therein which arguably lends support to this claim.

Without attempting to cover every case and statute invoked

by the Farm Interests and the League, the following examples are

representative of the degree to which their argument depends upon

misstatement and misapplication of the authority cited.

For instance, Farm Interests have cited (but not quoted) the

following statutes as requiring that "[p]rior to initiating an

action to enforce the property interests of the United States,
the

Attorney General must be 'retained' by client agencies to
represent

federal interests within the responsibility of the agency

requesting help." Farm Interests' brief, at 50:

15

28 U.S.C. § 512.
Attorney General to advise heads of executive
departments:
The head of an executive department may require the
opinion of
the Attorney General on questions of law arising in the

administration of his department.

28 U.S.C. § 514.
Legal services on pending claims in
departments and agencies:
When the head of an executive department
or agency is of the
opinion that the interests of the United States
require the
service of counsel on the examination of any witness
concerning
any claim, or on the legal investigation of any claim,
pending
in the department or agency, he shall notify the Attorney

General, giving all facts necessary to enable him to furnish
proper
professional service in attending the examination or
making the
investigation, and the Attorney General shall provide
for the
service.

28 U.S.C. § 517.
Interests of United States in pending suits:
The
Solicitor General, or any officer of the Department of Justice,

may be sent by the Attorney General to any State or district in
the
United States to attend to the interests of the United
States in a
suit pending in a Court of the United States, or in
a court of a
State, or to attend to any other interest of the
United States.

28 U.S.C. § 518.
Conduct and argument of cases: (a) Except
when the Attorney
General in a particular case directs otherwise,
the Attorney
General and the Solicitor General shall conduct and
argue suits
and appeals in the Supreme Court and suits in the
United States
Claims Court or in the United States Court of Appeals
for the
Federal Circuit and in the Court of International Trade in
which
the United States is interested. (b) When the Attorney
General
considers it in the interests of the United States, he may

personally conduct and argue any case in a court of the United

States in which the United States is interested, or he may
direct
the Solicitor General or any officer of the Department of
Justice
to do so.

As is obvious, these statutes do not stand for the
proposition

asserted. Moreover, Farm Interests have conspicuously ignored 28

U.S.C. §§ 516 and 519, which reserve to the Attorney General,

absent express congressional directive to the contrary, the

authority to conduct and supervise all litigation to which the

United States is a party.FN
5

16

In an attempt to demonstrate that the Attorney General's

authority to bring this action depends on the concurrence of
other

federal agencies, the Farm Interests refer to the Environmental

Protection Agency's authority to implement and enforce the Clean

Water Act, 33 U.S.C. § 1251 et seq. However, none of the
United

States' claims in this case are based on the Clean Water Act.

The League's filing fares no better. For example, in support

of its contention that the Secretary of the Interior has
exclusive

authority to determine whether legal action should be taken to

protect federal parks and refuges, the League cites Organized

Fishermen of Florida v. Hodel,775 F.2d 1544 (11th Cir.
1985),

cert. denied, 476 U.S. 1169 (1980), and Kidd v. United
States Dep't

of Interior. Bureau of Land Management, 756 F.2d 1410 (9th
Cir.

1985). In fact, these cases, involving private challenges to

regulatory decisions brought under the federal Administrative

Procedures Act, 5 U.S.C. § 706 (2) (a), merely affirmed the
Interior

Department's broad discretion to regulate the use and
management of

federal lands. See Organized Fishermen, 755 F.2d at 1550
("[t]he

task of weighing the competing uses of federal property has been

17

delegated by Congress to the Secretary of the Interior.

Consequently, the Secretary has broad discretion in determining
how

best to protect public land resources."); Kidd, 756 F.2d at 1412

("Congress' constitutional power over the proper administration
and

disposition of the public lands is without limitation.").
The

question of authority to initiate civil action to protect federal

property was simply not at issue in these cases.

The League also relies on the following provision in the 1980

Department of Justice Appropriation Act:

The Attorney General may, with the concurrence of any

agency or department with primary enforcement

responsibility for an environmental or natural resource

law, investigate any violation of an environmental or

natural resource law of the United States, and bring such

actions as are necessary to enforce such laws.

Pub. L. No. 96-132, § 12, 93 Stat. 1040, 1048 (1979).

The plain wording of this statute makes clear that it applies

only to a ctions to enforce federal environmental laws. This
action

is based on state law and federal contract claims; no federal

environmental or natural resource law is at issue in this case.

As a final example, the League cites United States v.
Solomon,

563 F.2d 1123 (4th Cir. 1977), as holding that "the [Department
of

Justice] does not have general discretionary authority to file

civil actions within the purview of other federal agencies
without

the authorization and concurrence of those agencies." League's

Memorandum in Support of Motion for Court Inquiry,
December 13,

1991, at 4. In Solomon , the Fourth Circuit held that the
United

States as a whole lacked statutory authority and standing to sue
to

protect the constitutional rights of the mentally retarded.

18

Significantly, the court distinguished the situation in which the

United States sues to protect its property interests, in which
case

no explicit statutory authorization is required. 563 F.2d at 1126

(citing cases). The question of the authority of the United
States

as a whole to bring suit is, of course, a separate issue from the

question of which federal agency is responsible for initiating

suit. As to the latter question, the court expressly stated that

"if the United States had authority to bring the suit, the
Attorney

General of the United States is the one to act as its
counsel."

Id. at 1124 (citing 28 U.S.C. §§ 516-519). Solomon
not only lends

no support to the League's argument, but indeed bears no

resemblance to the characterization of its holding advanced by
the

League.

Although the Farm Interests' and the League's reliance on

inapplicable authority is enough to warrant a conclusion that
their

challenge to the Attorney General's authority is without legal

foundation, the issue of the concurrence of other federal
agencies

in this action is, in any event, a red herring.

The cooperation of numerous federal resource agencies in this

litigation is evident from the United States' witness list, which

includes, among others, personnel from the National Park Service,

Fish and Wildlife Service, Environmental Protection Agency, Soil

Conservation Service, and Army Corp of Engineers. United
States'

Revised Designation of Expert Witnesses, November 19,
1990. With

respect to the Department of the Interior, Assistant Interior

Secretary Constance Harriman was quoted in a press article dated

19

November 14, 1990, as stating: "We're pursuing an aggressive

litigation strategy. What's at risk is a precious national park--

a world heritage site -- and an important wildlife refuge. [The

damage sustained] is as bad as you can get. We've got to have

relief." Miami Herald, November 14, 1990 (Exhibit 2 of
United

States' Opposition to Defendant-Intervenor's Motion for Court

Inquiry, January 27, 1992). Further, when the settlement
reached

in this case was announced, the Secretary of the Interior, Manuel

Lujan, issued a press release hailing the settlement as a "major

step toward solving the water quality problems which threaten the

park and the refuge" and as "the beginning of a new era of

partnership designed to meet the goal of responsible stewardship
of

our public lands.. (Exhibit 3 of United States' Opposition to

Defendant-Intervenor's Motion for Court Inquiry).

While it may or may not be true that, as the Farm Interests

and the League contend, the concurrence of other federal agencies

occurred only after the suit was filed, this point is irrelevant
in

light of the Farm Interests' and the League's failure to

demonstrate that this concurrence was ever needed in the first

place.

Having been referred to no authority which suggests that the

Attorney General lacks the authority to pursue and settle the

claims in this case, the Court finds this argument to be without

merit.

20

D. Infringement of Federal Agency Discretion

The Farm Interests claim that the Agreement illegally

infringes upon the discretionary authority of federal agencies by

requiring these agencies to defend the Agreement against outside

challenges, by requiring their assistance in research and

monitoring, and by requiring the Army Corp of Engineers (the

"Corps") to modify its regulation of the Central and Southern

Florida Project (the "Project") in support of the Agreement's

objectives.FN
6

A similar argument was addressed in Gorsuch, 718 F.2d at
1127-

29.  In Gorsuch, a group of industries challenged a
consent decree

21

which established certain procedures and criteria to be employed
by

the Environmental Protection Agency ("EPA") in promulgating

regulations under the Clean Water Act. In rejecting the

industries' argument that the decree impermissibly restricted the

EPA's discretion by prescribing the method to be used by the
agency

in developing its regulations, the appellate court emphasized
that

the terms of the decree were shaped, and voluntarily agreed to,
by

the EPA:

The Decree here was largely the work of the
EPA and the
other parties to these suits, not
the district court;
manifestly, the
requirements imposed by the Decree do not

represent judicial intrusion into the Agency's
affairs to
the same extent they would if the
Decree were `a creature of
judicial cloth.'

Id. at 1128 (citation omitted). Because the EPA had consented
to

the decree, the situation in Gorsuch was distinguishable
from cases

in which agencies were ordered, against their will, to take
action

otherwise committed to their discretion. See, e.q., National
Ass'n

of Postal Supervisors v. United States Postal Serv., 602
F.2d 420

(D.C. Cir. 1979) (district court interfered with Postal Service's

broad discretion over management affairs in ordering the Service
to

maintain specific salary differential between management
personnel

and rank-and-file employees).

In this case, the Agreement before the Court, to be entered as

a consent decree, is arguably less intrusive of federal agency

discretion than the decree in Gorsuch. Whereas the federal
agency

in Gorsuch was in a defensive position, the United States
initiated

and aggressively pursued this action; any commitments it has made

22

are in furtherance of its own independently-sought objectives. To

hold that the various federal agencies which have participated in

this suit cannot commit themselves to undertake action in support

of an outcome which they affirmatively seek, i.e., restoration of

the Everglades, is itself an infringement of their discretion to

settle this lawsuit in the manner they best see fit.

Since any commitments embodied in the Agreement come with the

endorsement and at the urging of the United States, the Agreement

does not impermissibly infringe upon the discretion of the
federal

agencies involved.

E. The Flood Control Act

Defendant-intervenors contend that the Agreement, by

establishing new water quality and quantity standards applicable
to

the Project, imposes immediate and significant modifications to
the

Project which elevate environmental considerations over the

Project's primary purposes of flood control, reclamation,

irrigation, and water supply. Such modifications, it is noted,

require prior congressional approval under the Flood Control Act,

33 U.S.C. § 701, et seq. The United States' position is
that the

Agreement is entirely consistent with the broad aims of the

Project, which include protection of fish and wildlife resources
in

addition to flood control and other stated purposes. See
generally

Environmental Defense Fund v. Alexander, 467 F. Supp. 885,
899-902,

908-10 (N.D. Miss. 1979) (discussing the Corps'discretionary

authority to make post-authorization modifications to projects

23

which do not materially alter authorized project purposes);

Creppel v. Army Corps of Engineers, 670 F.2d 564, 572-73
(5th Cir.

1982) (same).

Although the position of both parties seems to suggest that a

comparison of the terms of the Agreement with the Project's

purposes is in order, the Court finds this task unnecessary since

the Agreement does not mandate any specific or concrete

modification to the Project such as would trigger the requirement

of congressional approval.

The Corps' duties under the Agreement are set forth in ¶ 55:

The Corps shall apply to DER for stormwater management

permit(s)... for the operation of S-10, S-11, and S-12

water control structures, and for the construction and

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 water quality

problems addressed in the 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 Corps agrees to

cooperate in the modification of its regulation of the

[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.

In complying with these terms, the Corps may very well modify

certain aspects of the Project, but Paragraph 15 clearly does not

embody any specific or definite plan for modification of the

Project. Hence, any alterations to the Project are, at this
stage,

purely conjectural and hypothetical. More fundamentally, because

24

the Agreement itself contains no concrete proposal for

modifications to the Project, the Court's approval of the
Agreement

does not implicate the Flood Control Act for the very reason that

the Court cannot be approving or requiring what is not in the

Agreement. Whether the Corps' implementation of its part of the

Agreement will result in specific plans to alter the Project is
an

issue which need not and should not be resolved at this juncture.

For present purposes, it is sufficient that the Agreement itself

imposes no such modifications and, as such, does not require

congressional authorization.

G. NEPA

NEPA requires federal agencies to submit an environmental

impact statement ("EIS") before undertaking "major Federal
actions

significantly affecting the quality of the human environment." 42

U.S.C. § 4332(2)(C). The purpose of the EIS requirement, and NEPA

as a whole, is to inject environmental considerations into the

decisionmaking processes of federal agencies by forcing agencies
to

take a "hard look" at the environmental consequences of their

actions. Robertson v. Methow Valley Citizens Council, 490
U.S.

332, 350 (1989) (citation omitted); Weinberger v. Catholic
Action

of Hawaii/Peace Education Project, 454 U.S. 139,
143(1981).

There is no question but that the remedial measures

contemplated by the Agreement will significantly affect the

environment; that is the whole purpose of the Agreement. Further,

the fact that these measures are intended to benefit the

25

environment does not necessarily render them beyond the scope of

NEPA's requirements. As the Fifth Circuit has observed, "The

proper question is not the intent behind the actions, but the

significance of the new environmental impacts... NEPA is
concerned

with all significant environmental effects not merely adverse

ones." Environmental Defense Fund v. Marsh, 651 F.2d 983,
993 (5th

Cir. Unit A, July 13, 1981)FN
7 (citation omitted). Accord National

Wildlife Federation v. Marsh, 721 F.2d 767, 782-83 (11th
Cir.

1983). In a similar vein, the Council on Environmental Quality

("CEQ"), which is charged with developing guidelines implementing

NEPA's provisions, includes beneficial impacts in its definition
of

"significant effects" on the environment. 40 C.F.R. §

1508.27(b)(l). While the courts and the CEQ have not clearly

articulated the purpose served by requiring an EIS for actions

intended to benefit the environment, application of NEPA's
mandate

to such actions may stem from an implicit recognition that even
the

most well-intentioned environmental project can have unintended

negative effects.

NEPA, however, applies only to "federal" actions.

Accordingly, the critical questions before this Court are whether

the Agreement's remedial measures constitute federal action and,
if

so, whether implementation of the Agreement is precluded pending

26

preparation of an EIS.FN
8 As regards the first issue, the fact that

the actions designed to restore the Everglades are to be
undertaken

by the state agencies is not dispositive. The case law is quite

clear that federal involvement in state or private activity may
be

sufficient to federalize the activity for purposes of NEPA.

Cases in which courts have found major federal action in

otherwise nonfederal projects generally involve discretionary

decisionmaking by federal agencies which permit or enable

nonfederal actors to undertake activity affecting the
environment.

Typical examples include situations in which federal approval
--

usually in the form of a lease, permit, or license -- is
required,

or where substantial federal funding is involved. See, e.g.,

Maryland Conservation Council. Inc. v. Gilchrist, 808 F.2d
1039,

1042 (4th Cir. 1986) (county highway project involved federal

action inasmuch as county needed a permit from the Army Corps to

dredge a wetlands and highway crossed a state park purchased with

federal funds, thereby requiring the Interior Secretary's
approval

for conversion of the park to other than recreational use);

Foundation on Economic Trends v. Heckler, 756 F.2d 143,
152-54

(D.C. Cir. 1985) (enjoining university genetic experiment
approved

and funded by the National Institutes of Health without
compliance

with NEPA); Homeowners Emergency Life Protection Comm. v.
Lynn,

27

541 F.2d 814, 817 (9th Cir. 1976) (per curiam) (grant of federal

funds transformed dam and reservoir project into a federal-city

partnership, rendering project a major federal action); Davis
v.

Morton, 469 F.2d 593, 596 (l0th Cir. 1972) (Interior
Secretary

required to file an EIS prior to approving lease of Indian lands
to

private developer); Greenpeace U.S.A. v. Evans, 688 F.
Supp. 579

(W.D. Wash. 1987) (federal agency's granting of permit allowing

scientists to collect skin and blubber samples from killer whales

was subject to NEPA's requirement of EIS or preliminary

environmental assessment). Other examples involve the provision

of federal services or non-financial assistance to a nonfederal

project. See Sierra Club v. Hodel, 544 F.2d 1036, 1044
(9th Cir.

1976) (by entering into contract to supply power and construct

transmission line to ALCOA plant, federal agency so federalized
the

project that it became major federal action); Scientists'
Inst.

for Public Information. Inc. v. Atomic Energy Comm'n, 481
F.2d 1079

(D.C. Cir. 1973)(Atomic Energy Commission's development of

technology enabling utility companies to construct nuclear power

plants required an EIS).

Although each of the above cases highlights the presence of a

federal decision which in some manner "enables" another to take

action impacting upon the environment, the common theme
underlying

findings of federal action is the existence of federal

responsibility for the activity in question. See CEQ
regulations,

40 C.F.R. § 1508.18, defining "major federal action" as including

effects "which are potentially subject to federal control and

28

responsibility." Such responsibility may be found where a federal

agency wields significant influence over a nonfederal project or

where, even absent such influence, federal participation is

nonetheless substantial. See Atlanta Coalition on Transp.
Crisis,

Inc. v. Atlanta Regional Comm'n, 599 F. 2d 1333 1347 (5th
Cir.

1979) (framing the issue as "whether there is sufficient federal

control over, responsibility for, or involvement with an action
to

require preparation of an EIS"). A case which illustrates this

larger theme is Scottsdale Mall v. Indiana, 549 F.2d 484
(7th Cir.

1977), cert. denied, 434 U.S. 1008 (1978). Scottsdale
Mall

involved a highway construction project undertaken by the State
of

Indiana, which initially received federal funding for the project

but subsequently withdrew from federal funding consideration in

order to avoid compliance with NEPA. The court nonetheless

required preparation of an EIS. Although finding that Indiana's

receipt of early federal approval and financial aid rendered its

highway project federal in character, despite its subsequent

withdrawal from the funding program, the court also found "major

federal action" in the federal government's extensive involvement

in the project's planning. The record revealed federal

participation in the programming, location, design, preliminary

engineering, and right of way acquisition for the
project.Id. at

489. Such extensive federal involvement was sufficient to

federalize the state's highway, thus triggering the need for an

EIS.

29

Application of the concept of federal "responsibility" to the

case at hand yields the inevitable conclusion that the Everglades

restoration project contemplated by the Agreement constitutes
major

federal action. The United States' responsibility for the

Agreement's remedial measures is evident from the fact that these

provisions were arrived at in consultation and negotiation with
the

United States. Through the negotiating process, the United States

no doubt exercised considerable influence over determination of
the

precise interim and long-term phosphorous concentration limits

established for the Park and Refuge, the interim and long-term

target reductions in phosphorous loads from the EAA, and the size

and location of the various STAs, all of which will surely have a

significant impact on the environment.FN
9 Further, the United States

will continue to exert control through the Agreement's dispute

resolution mechanism. Pursuant to this provision, the state

agencies are obligated to seek the approval of the United States

before deviating from the terms of the Agreement. The United

States thus not only had the power to influence the initial

determination of the specific standards and measures affecting
the

environment, but also has the continuing power to set new or

different standards by consenting to such changes. This is the

kind of discretionary authority to approve or disapprove of
actions

30

affecting the environment that is at the very heart what

constitutes "major federal action." In addition to this more

substantive influence, the United States will cooperate and

participate in the Agreement's implementation by assisting the

state agencies in research and monitoring as well as in their

efforts in the state administrative process.FN
10 Given the extent

of the United States' role both in shaping the Agreement and in
its

implementation, the Court finds that the Agreement's remedial

measures constitute major federal action and will accordingly

require preparation of an EIS.

The Court will not, however, require an EIS as a condition to

its approval or the parties' implementation of the Agreement.

Though mindful that an EIS is supposed to precede an agency's

decision to move forward on action which affects the environment,

the Court is no less cognizant of NEPA's original purpose, which
is

to promote preservation and enhancement of the environment.
See 42

U.S.C. § 4331. Here, the United States is attempting to protect

and save the Everglades from further deterioration, thus
fulfilling

NEPA's purpose. Defendant-intervenors, moreover, have alleged no

harm or even possible harm to the environment which would occur
as

a result of the restoration project. Rather, they are trying to

use an environmental law as a means of stalling an
environmentally

protective measure.

31

The irony of the situation confronting this Court is similar

to that faced by the Sixth Circuit in Pacific Legal Foundation
v.

Andrus, 657 F.2d 829 (6th Cir. 1981). There, a legal
foundation

and several residents of the State of Tennessee argued that the

Secretary of the Interior violated NEPA by failing to file an EIS

prior to listing several species of mussels as endangered under
the

Endangered Species Act. The designation of the mussels as

endangered species had necessitated a halt in construction of a

dam. Although the court, in rejecting the NEPA claim, rested its

holding on a finding of statutory conflict between NEPA and the

Endangered Species Act, it also made a pertinent observation
about

the use of NEPA as a device to frustrate actions intended to

benefit the environments:

The Secretary, by listing species, is working to preserve

the environment and prevent the irretrievable loss of a

natural resource. The Secretary thereby enhances the

ability to learn about ecosystems and acts as a

responsible trustee of the environment. One of the

rationales for exempting the actions of the EPA under the

Clean Air Act from NEPA was that the EPA was working to

preserve and enhance the environment and thus served the

purposes of NEPA. To require EPA to file an impact

statement would only hinder its efforts at attaining the

goal of improving the environment.

... This Court is reluctant to make NEPA more of an

obstructionist tactic to prevent environment-enhancing

action than it may already have become.

Id. at 837-38 (footnote omitted). FN
11

32

Like the Sixth Circuit, this Court also declines to permit

NEPA to be used as a litigation tactic to delay action intended
to

prevent "the irretrievable loss of a natural resource." --in this

case, a resource with the unfortunate distinction as the most

threatened park in the National Park system. To allow the

Everglades to slowly strangle while a time-consuming EIS is

being prepared would be inconsistent with NEPA's intent. "[A]n
action

which seeks to protect the environment from further deterioration

deserves refuge from... undue delay." United States v. South

Florida Water Management Dist. , 922 F.2d at 712 (quoting
Manasota

88 v. Tidwell, 896 F.2d 1318, 1323 (11th Cir. 1990)).

Finally, the Court notes that an EIS will not be useless. The

restoration project spans a period of about eleven years, with

interim concentration levels not expected to be reached until the

year 1997 and long-term concentration levels set for the year
2002.

It is therefore likely that an EIS will have been completed prior

33

to occurrence of at least some of the project's environmental

effects. If actions affecting the environment occur prior to

completion of an EIS, the EIS will nevertheless serve the useful

function of allowing the agencies to determine, at a much earlier

date than would be the case if there were no impact statement,

whether the effects are as anticipated and, if not, whether any

corrective measures are in order. This decision, of course, rests

entirely with the responsible agencies involved. NEPA mandates a

process, not a result. Methow Valley, 490 U.S. at 350.

The Court recognizes that its decision to allow the Everglades

project to proceed while simultaneously requiring an EIS is

somewhat unusual, the typical remedy for a NEPA violation being

maintenance of the status quo pending an environmental assessment

or preparation of an EIS. It is the Court's view, however, that

under the circumstances presented, the result reached herein
"

strike [s] a workable balance between some of the advantages and

disadvantages of full application of NEPA." Portland
Cement, 486

F.2d at 386.FN
12

34

III. CONCLUSION

The Court finds the Agreement to be fair, reasonable, and

consistent with the public interest. This conclusion arises from

the fundamental fact that the Agreement does no more than set in

motion a process which itself is eminently fair and reasonable.
In

essence, the Agreement effects a transfer of these proceedings to

a state administrative forum; this is precisely the result which

the Farm Interests, at least, have consistently sought. Though

defendant-intervenors would prefer that the Court relinquish its

continuing jurisdiction over this case by leaving the ultimate

determination of the United States' rights and remedies to the

state administrative process, the Court declines to do so. The

United States, having the right to be in this Court, has the
right

to return to this Court if it is not satisfied with its remedies
in

the administrative process.

The important point is that the Agreement's remedial terms

cannot take effect without first being tested by defendant-

intervenors and subject to careful and searching scrutiny in the

state administrative process and perhaps again in this Court. The

Agreement's fairness, in short, lies in the fair and impartial

administrative and judicial processes to which its terms are

necessarily subject. The Cities and Farm Interests, as
potentially

affected parties, are entitled to no more and no less.

I have difficulty understanding the amount of time, effort,

and litigation spawned by an understandable effort to seek the

truth and, if the truth requires, take the steps necessary to
save

35

a precious resource. The time has come, indeed, has passed, when

the admitted problems facing the Everglades must be addressed.
And

yet the solutions must be the product of a meaningful search for

the scientific truth. The original parties to this litigation

conclude that they have found the answers or, at least, are aimed

in the right direction. The Cities and the Farm Interests wish to

participate in the finality of these conclusions and so they
shall.

Lest there be any doubt from what has been said before in this

Order, it is the Court's hope and expectation that the

administrative process in which defendant-intervenors will be

involved will be totally uninhibited by this Order and the

Agreement to which it makes reference. If, ultimately, it is

determined factually that procedures and methods other than those

agreed to by the original parties herein should be undertaken,
then

it will lie with those parties to either accept those conclusions

or seek further relief from the Court.

The Court accordingly approves the Agreement and ORDERS AND

ADJUDGES as follows:

1.     The Court has jurisdiction over this
action. The Agreement is

approved by the Court and by reference made a part of this Order.

The parties to this Agreement are ordered to comply with its
terms.

2.     The Court shall retain jurisdiction
over this matter for the

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

the Court at any time for such further orders or directives as
may

36

be necessary or appropriate for enforcement or modification of
the

terms of the Agreement.

DONE AND ORDERED in chambers at Miami, Florida this
24th day

of February, 1992.

_______________________________
WILLIAM M.
HOEVELER
UNITED STATES DISTRICT JUDGE

cc: All counsel of record

Footnotes:

1.
As used in this Order, the term "state
agencies" refers to the District and DER.

2.
The force majeure clause in the Agreement, ¶ 23, includes
"unavoidable legal barriers or restraints, including those arising
from the actions of persons not Parties to this Agreement."

3.
By incorporation of this language, the Court disposes of
defendant-intervenors' arguments based on the APA and the Farm
Interests' due process argument. The suggestion that the parties be
bound by the results of the administrative process is rejected for
the reason stated in the Court's Order of December 5, 1991.

4.
Defendant-intervenors' arguments based on
alleged state law violations are not addressed as these issues are
not properly before the Court; defendant-intervenors have advised
the Court that the state law issues are presently pending in, and
"properly resolved by," the state courts, and are raised here only
to "alert" the Court to their existence. Farm
Interests'brief, at 32-33.See Cities' brief , at 27.
Since the defendant-intervenors do not wish this Court to decide
these issues, it will not do so. The Court also declines to stay
entry of a consent decree pending resolution of these issues by the
state courts.

The Court further refrains from addressing the Farm Interests'
argument based on the Farmland Protection Policy Act (FPPA), 7
U.S.C. § 4201 et seq. The FFPA, by expressly prohibiting
private causes of action based on its provisions, id. § 4209,
precludes judicial review of compliance with its terms.

5.
28 U.S.C. § 516. Conduct of litigation
reserved to Department of Justice: Except as otherwise
authorized by law, the conduct of litigation in which the United
States, an agency, or officer thereof is a party, or is interested,
and securing evidence therefor, is reserved to officers of the
Department of Justice, under the direction of the Attorney General.

28 U.S.C. § 519. Supervision of Litigation: Except as
otherwise authorized by law, the Attorney General shall supervise
all litigation to which the United States, an agency, or officer
thereof is a party, and shall direct all United States attorneys,
assistant United States attorneys, and special attorneys appointed
under section 543 of this title in the discharge of their respective
duties.

6.
The Farm Interests cite other terms of the Agreement which
purportedly restrict federal agency discretion, e.g., the water
quality levels and limits established for the Park and Refuge, the
conversion of farmland to STAs, and funding for research and
monitoring.

With respect to the phosphorous concentration levels and limits
for the Park and Refuge and the construction of STAs on farmland, no
federal agency discretion is implicated because these measures are
to be accomplished by the state agencies pursuant to their own
regulatory authority and responsibilities. Compare Citizens for a
Better Environment v. Gorsuch, 718 F.2d 1117 (D.C. Cir. 1983),
cert. denied, 467 U.S. 1219 (1984), discussed infra.
Were it otherwise, resort to the state administrative process would
be unnecessary. If the Farm Interests mean to suggest that the
United States cannot allow itself to be bound by the terms of the
Agreement, this argument fails of its own effect, which would be to
invalidate every decree and agreement, including criminal plea
bargains, entered into by the United States.

As far as funding is concerned, the Agreement imposes no funding
obligations on any federal agency. The only reference to federal
funding in the Agreement is found in ¶ 11.F, which provides,
inter alia, that funds available under the Clean Water Act
"can be granted" to the state agencies for approved monitoring
programs. This is an affirmation, not a restriction, of the
Environmental Protection Agency's funding authority under the Clean
Water Act.

7.
Decisions of the former Fifth Circuit rendered prior to October 1,
1981 are binding on this court. Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc).

8.
The Justice Department's internal regulations exclude the submission
of consent or settlement agreements from its definition of "major
federal action." 28 C.F.R. § 61.4. This rule, however, is not
applicable because defendant-intervenors' NEPA argument is not
directed toward the act of submitting the Agreement, but rather at
the specific remedial actions set forth within the Agreement.

9.
Although the United States' role in determining the size and
location of the STAs implicates NEPA's requirements, the acquisition
of land on which the STAs are to be constructed does not. It is the
STAB, and not the mere acquisition of land, that affect the
environment. See City of Oak Creek v. Milwaukee Metro. Sewerage
Dist., 576 F. Supp. 482, 488-90 (E.D. Wis. 1983) (holding NEPA
inapplicable to site-acquisition activities).

10.
Agreement ¶¶ 13.B, 17, 18. See also DER's and District's
reply brief, at 32, describing the Agreement as "a new spirit of
cooperation between the state and federal governmental agencies who
have bound themselves to work together in a cooperative effort to
preserve and protect the Everglades...."

11.
The court's mention of the EPA's exemption from NEPA's provisions is
a reference to the "functional equivalent" test, a judicially
created doctrine which exempts from NEPA's requirements actions of
environmental agencies whose organic legislation mandates specific
procedures for consideration of the environment that supply the
"functional equivalent" of an impact statement. See Alabama ex
rel. Siegelman v. EPA, 911 F.2d 499, 504-05 (11th Cir.
1990); Wyoming v. Hathaway, 525 F.2d 66, 72-73 (10th Cir.
1975); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375,
380 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974);
Environmental Defense Fund v. EPA, 489 F.2d 1247, 1256 (D.C.
Cir. 1973); Buckeye Power Inc. v. EPA, 481 F.2d 162, 174 (6th
Cir. 1973); Appalacian Power Co. v. EPA, 477 F.2d 495, 508
(4th Cir. 1973).

In this case, the "functional equivalent" doctrine is not
available to the United States because the Justice Department is not
an environmental agency and is not operating under any enabling
legislation which would provide the functional equivalent of an EIS.
See Texas Comm. on Natural Resources v. Bergland, 573 F.2d
201, 208 (5th Cir.) (declining to apply the functional equivalent
exception to Forest Service's clearcutting, stating that the
doctrine is generally limited to agencies whose sole responsibility
is to protect the environment), cert. denied, 439 U.S. 966
(1978).

12.
The Court is aware of no case in which an action to restore
an environmental resource was enjoined due to noncompliance with
NEPA. The Eleventh and Fifth Circuit cases referred to at the
outset, in which it was stated that NEPA is also concerned with
beneficial impacts, involved proposals to mitigate a project's
adverse environmental effects. National Wildlife Federation,
721 F.2d at 782-84; Environmental Defense Fund, 651 F.2d at
993. Because the mitigation plans were adopted to allay
environmental concerns about a project's potential negative effect
on the environment, it made sense to enjoin further project
development until the beneficial or remedial effects of the plans
were clearly established in an EIS.

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