Memorandum Opinion and Order Entering Settlement = Agreement as Consent Decree

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<= IMG=20 border=3D0 alt=3D"Return to Court Orders"=20 = src=3D"http://exchange.law.miami.edu/everglades/images/jpg/lawlogo.jpg"=20 width=3D204 height=3D200>

Orders from

United = States v.=20 SFWMD, et al.,

UNITED = STATES=20 DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI=20 DIVISION

Case=20 No. 88-1886-CIV-HOEVELER

Memorandum = Opinion=20 and Order Entering
Settlement Agreement as Consent = Decree

=95 =20 Style
=95 = I.    = ;   =20 The Agreement
=95 II.   &nb= sp;  =20 Defendant-Intervenors' = Objections
=95 II.=20 A.   Impact on Nonconsenting=20 Parties
=95 II.=20 B.   The Court's Authority to Enter=20 = a
           &n= bsp; =20 Consent Decree
=95 II.=20 C.   The Attorney General's Authority=20 = to
           &= nbsp; =20 Maintain and Settle this = Action
=95 = II.=20 D.   Infringement of Federal=20 = Agency
          &nb= sp;  =20 Discretion
=95 II.=20 E. The Flood Control = Act
=95=20 II.=20 G. NEPA
=95   III.   &= nbsp; =20 Conclusion

=95 Footnotes:
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=95 = Settlement=20 Agreement
=95 = (28=20 F.3d 1563 (11^th Cir. 1994), cert denied 115 = S.C.=20 = 1956))

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=20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 1 UNITED STATES DISTRICT COURT SOUTHERN = DISTRICT OF=20 FLORIDA MIAMI DIVISION
UNITED STATES OF AMERICA, et al., = Plaintiff, vs . SOUTH FLORIDA WATER MANAGEMENT DISTRICT; TILFORD=20 CREEL, Executive Director, South Florida Water = Management=20 District; FLORIDA DEPARTMENT OF = ENVIRONMENTAL REGULATION; and=20 CAROL M. BROWNER, Secretary, Florida Department of=20 Environmental Regulation, et al., = Defendants. __________________________________________/	Case No 88-1886-CIV-WMH=20



FILED by SEC=20 D.C. FEB 24,=20 1992 Docket #: 1205=20


MEMORANDUM OPINION AND ORDER = ENTERING SETTLEMENT=20 AGREEMENT AS CONSENT DECREE 847 F. Supp 1567 (S.D. = Fla=20 1992)
The Court on this day approves and enters as a consent = decree=20 the settlement agreement ("Agreement") executed by = plaintiff=20 United States and defendants South Florida Water Management = District=20 ("District") and the Florida Department of Environmental=20 Regulation ("DER") . ^{FN=20 1} The Agreement resolves all claims by the original = parties in=20 a complex environmental lawsuit filed more than three = years ago=20 by the United States against the District and DER for = alleged contamination of the Loxahatchee National Wildlife Refuge = (the=20 "Refuge") and the Everglades National Park (the "Park") = caused by=20 2 nutrient-rich farm runoff in waters released = into the=20 Refuge and Park through structures operated by the = District. The=20 United States claims that high levels of = phosphorous in=20 farm-water runoff have altered the fragile ecosystems of the = Park and=20 Refuge, producing dense cattails in place of the = native=20 sawgrass and wet prairie communities and endangering = indigenous plant=20 and animal life. The Agreement is supported by the numerous = environmental=20 groups permitted to intervene in this action and opposed = by defendant-intervenors Cities of Belle Glade and Clewiston = (the=20 "Cities" ) and several agricultural organizations ("Farm=20 Interests") (collectively referred to as "defendant-intervenors"). As = set=20 forth below, the Court finds that the objections to the = Agreement=20 raised by defendant-intervenors, with one exception, are = either=20 satisfied by this Order or are without merit. The = exception to=20 which the Court refers is the objection based on the = National=20 Environmental Policy Act ("NEPA"), 42 U.S.C. =A7 4321 = et=20 seq. Nonetheless, because rejection of the Agreement on this = ground=20 alone would frustrate the very purpose behind the = statute, the=20 Court will require compliance with NEPA simultaneous = with, and=20 not as a condition to, implementation of the Agreement. =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 3 I. THE AGREEMENT A review of the terms of the Agreement reveals an = ambitious=20 strategy to restore and preserve the Everglades = ecosystem. In=20 broad outline, the Agreement establishes interim and = long-term=20 phosphorous concentration limits for the Park and Refuge = and delineates specific remedial programs designed to achieve = these=20 limits. The remedial programs consist of stormwater = treatment=20 areas ("STAs") and a regulatory permitting program aimed = at agricultural discharges from the Everglades Agricultural = Area=20 ("EAA"). The STAs, to be constructed by the District on = 35,000=20 acres of land in the EAA, are large water filtration = marshes designed to process and remove nutrients from = agricultural runoff=20 destined for the Park and Refuge. The STAs will thus act = as a=20 "buffer zone" between the agricultural area and the Park = and Refuge, receiving stormwater directly from agricultural = drainage=20 canals and purifying the water before it enters the Park = and Refuge. The regulatory program complements and lessens = the work=20 of the STAs by seeking to reduce the level of phosphorous in = agricultural runoff entering the STAs. Pursuant to this = program,=20 the District or DER will regulate the water quality of=20 agricultural discharges through a permitting scheme by which permit = applicants=20 will be required to comply with designated phosphorous = load allocations and adopt best management practices aimed at = reducing=20 the levels of phosphorous in agricultural discharge. The = combination of the STAs and the regulatory program are = expected=20 to achieve an 80% long-term reduction in phosphorous loads = from the=20 EAA. 4 In addition to these remedial measures, the Agreement=20 establishes a research and monitoring program, a = technical oversight committee to supervise the research and = monitoring, and=20 a schedule for the completion of administrative actions=20 consistent with the terms of the Agreement. The Agreement is notable in at least two respects. = First, the=20 basic programs and measures set forth in the Agreement = track substantially the requirements of the Marjorie Stoneman = Douglas=20 Everglades Protection Act ("Everglades Protection Act"), = Fla.=20 Stat. =A7 373.4592 (1991), a state legislative measure enacted = in=20 response to this lawsuit. Among other things, the Everglades = Protection=20 Act requires the District to establish: - strategies for developing programs and projects = designed=20 to bring facilities into compliance with applicable = water=20 quality standards and restore the Everglades = hydroperiod,=20 including the identification and acquisition of lands = for the=20 purpose of water t reatment or implementation of = stormwater=20 management systems... and the development of a = permitting=20 system for discharges into waters managed by the = District;=20 - strategies for establishing research programs to = measure=20 program and proJect effectiveness; - recommended ambient concentration levels and = diacharge=20 limitations for phosphorous appropriate to achieve and = maintain compliance with applicable state water = quality=20 standards; - proposed interim concentration levels designed to = achieve=20 [compliance with water quality standards] to the = maximum=20 extent practicable; and - a monitoring program to ensure the accuracy of data = and=20 measure progress toward achieving interim = concentration levels=20 and applicable water quality standards. = =A7=A7 =20 373.4592(3)(a)1, 373.4592(3)(a)4,=20 373.4592(6)(a)1, = 373.4592(6)(a)2,=20 373.4592(6)(a)5. 5 These strategies and proposals are to be incorporated = in the=20 Surface Water Improvement and Management ("SWIM") plan = and=20 District permit applications required under the Everglades = Protection Act.=20 Thus, while the Agreement undoubtedly goes further than = the=20 Act in terms of specificity, its general approach to the = problem=20 is the same. Second, and more important from the standpoint of the = Cities=20 and the Farm Interests, the Agreement is not = self-executing, but=20 rather is subject to Florida's Administrative Procedures = Act ("APA"), Fla Stat. =A7 120.50 (1991) et seq. , = which affords=20 affected parties the opportunity to challenge proposed agency = action. Under the APA, a party whose substantial interests are = or will=20 be affected by agency action is entitled to a Section = 120.57=20 trial- type hearing if there is a disputed issue of material = fact and,=20 ultimately, an appeal to the appropriate Florida District = Court=20 of Appeal. Fla. Stat. =A7=A7 120.57, 120.68. The Section = 120.57 hearing,=20 presided over by an impartial hearing officer, is infused = with=20 most, if not all, of the procedural attributes of a bench = trial.=20 The parties are permitted an opportunity to respond, to = present=20 evidence and argument on the issues involved, to conduct=20 cross- examination and submit rebuttal evidence, to file = exceptions to=20 the hearing officer's recommended order, and to be = represented by=20 counsel. =A7 120.57(1)(b)4. The parties may also submit = pleadings=20 and are afforded discovery prior to the hearing in = accordance=20 with the Florida Rules of Civil = Procedure. =A7=A7=20 120.57(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=20 mind, the role of the hearing officer is to make findings = of fact=20 and determine if the evidence supports, or warrants a = conclusion=20 at odds with, the proposed action. See Heifetz v. = Department of=20 Business Regulation, 475 So.2d 1277, 1281 (Fla. = 1st DCA=20 1985); Capeletti Bros. v. State Dep't of Gen. Servs., 432 = So.2d=20 1359, 1363 (Fla. 1st DCA 1983). In considering the hearing officer's recommended order, = the=20 agency must accept the hearing officer's findings of fact = if they=20 are supported by competent substantial evidence and may = not=20 reweigh evidence, rejudge the credibility of witnesses, or use=20 conclusions of law to overturn those findings of fact in order to fit = a=20 desired result. =A7 120.57(1)(b)10; See Heifetz, 475 So.2d = at 1281;=20 South Florida Water Management Dist. v. Caluwe, = 459 So.2d=20 390, 394- 95 (Fla. 4th DCA 1984); McDonald v. Dep't of Banking = and=20 Finance, 346 So.2d 569 (Fla. 1st DCA 1977). If the agency = determines that=20 the officer's findings of fact are not supported by the = record,=20 the reasons underlying this conclusion must be stated with = particularity in its final order. =A7 120.57(1)(b)10. The = agency's=20 final order, and thus its compliance with the above = requirements,=20 is subject to judicial review in the Florida District = Courts of=20 Appeal. See =A7 120.68. It is by virtue of these = procedures=20 that the APA ensures that an agency's final action is = supported by the=20 evidence developed in the record. Because the regulatory measures called for in the = Agreement=20 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,=20 will be able to subject these measures to independent = administrative=20 and judicial scrutiny. To the extent, then, that the = agencies' implementation of the Agreement may ultimately impose = burdens on=20 the Cities and the Farm Interests, these burdens will be = imposed=20 only as a result of an administrative process in which = the Cities=20 and Farm Interests are allowed to participate, and only = if they=20 are warranted by the facts as developed in that process. The Cities and the Farm Interests do not dispute the = adequacy=20 of the APA in protecting their interests with regard to = the=20 actions contemplated by the Agreement. To the contrary, they have = made it=20 clear that they would prefer that the issues raised by = this=20 lawsuit be adjudicated in the state administrative process. Their = primary=20 concern is that to the extent that the Agreement binds = the=20 agencies to a particular course of regulatory action, their = administrative=20 rights are rendered meaningless because the Agreement = will have=20 predetermined the final agency action. See Capeletti=20 Bros., 432 So.2d at 1364 ("Section 120.57 proceedings are intended = to formulate final agency action, not to review action = undertaken=20 earlier and preliminarily.") If, in fact, the Agreement = is a fait accompli, then an administrative hearing is = an=20 exercise in futility. In response to this concern, the settling parties have=20 submitted a Joint Status Report which makes = clear that=20 the 8 Agreement is not intended to require the = agencies to=20 favor the terms of the Agreement over a hearing = officer's=20 contrary findings of fact supported by competent evidence. As = interpreted=20 by the Court, the intention of the settling parties = is that=20 the agencies are bound in only two respects as far as the=20 administrative process is concerned. First, the agencies must = propose those=20 measures set forth in the Agreement which are subject to = the APA.=20 They are not, however, required to adopt these measures as = final=20 action in the face of conflicting findings of fact or if = persuaded=20 that such action goes against the weight of the = evidence=20 established in the Section 120.57 hearing. Indeed, should the = state=20 administrative process result in a finding inconsistent with = that=20 contemplated by the Agreement, the state agencies, consonant with = their=20 obligations under state law, must respect that result. = Second, the=20 agencies are "bound" in the sense that if the outcome = of the=20 administrative process precludes them from undertaking final = action=20 consistent with the terms of the Agreement, and if the = settling=20 parties are unable to agree to a modification of the = Agreement=20 after resort to dispute resolution or upon a claim of force=20 majeure,^{FN=20 2} the United States retains the right to return to this Court and have = the=20 dispute resolved in a federal forum. Significantly, the = Agreement=20 does not dictate how this dispute must be resolved. So construed, the Agreement imposes a process rather = than a=20 result, in effect recognizing an administrative framework = while=20 9 preserving this Court's ultimate jurisdiction over this = lawsuit.=20 As indicated at the December 4, 1991, status = conference, the=20 Court proposes to address defendant-intervenors' concerns = with=20 regard to the APA by incorporating in this Order, and = making part=20 of the Agreement, terminology which insures that the=20 administrative hearing is meaningful. To that end, the following = language, taken=20 in large part from the Joint Status Report and the = settling=20 parties' submission of proposed language, is hereby made part of = the Agreement ^{FN=20 3}: 1. The = Agreement=20 does not predetermine the outcome of any state = proceedings=20 required under Chapter 120, Florida Statutes. = Accordingly, any=20 provision of the Agreement that under Florida law must = be=20 implemented by the state agencies through administrative=20 proceedings governed by Chapter 120, Florida Statutes, = shall=20 have no binding effect upon the agencies within such=20 administrative proceedings and with regard to the = agencies'=20 consideration of the hearing officer's recommended = order. In=20 any such proceedings, points of entry will be provided = as=20 required by law. 2. Nothing = in the=20 Agreement is intended or operates to abrogate the = District's=20 and DER's duties to act in accordance with Florida = law.=20 Indeed, the Agreement requires the District and DER to = fulfill=20 their obligations under existing state law, including = the duty=20 to weigh competing evidence on issues of fact or policy,=20 particularly in light of an impartial administrative = hearing=20 officer's decision that the evidence warrants a = conclusion at=20 odds with the Agreement. Specifically, the Agreement = does not=20 require the agencies to favor the terms of the = Agreement over=20 a hearing officer's contrary findings of fact = supported by=20 competent, substantial evidence. =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 10 Having thus clarified the intention and operation of = the=20 Agreement, the Court now turns to the remaining = objections raised=20 by the Cities and the Farm Interests. II. DEFENDANT-INTERVENORS' = OBJECTIONS=20 The Cities and the Farm Interests advance a number of=20 arguments in opposition to Court approval of = the=20 Agreement. The principal contentions raised are that: (1) = the=20 Agreement illegally imposes duties and obligations on=20 defendant-intervenors and undermines their rightful interests; (2) the = Court=20 lacks authority to enter a consent decree based on state law = claims;=20 (3) the Attorney General lacks authority to maintain = and=20 settle this action without the concurrence of other federal = agencies; (4)=20 the Agreement impermissibly restricts the = discretion of=20 federal agencies by requiring them to undertake = certain=20 actions in furtherance of the Agreement's objectives; = (5) the=20 Agreement violates the Flood Control Act; and (6) the = remedial=20 measures contemplated by the Agreement constitute = "major=20 federal action" under NEPA, necessitating preparation of an=20 environmental impact statement. These arguments are addressed, in = turn,=20 below.^{FN=20 4} =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 11 A. Impact on Nonconsenting parties = Defendant-intervenors contend that the Agreement = impermissibly=20 imposes direct duties and obligations upon them, or = otherwise=20 undermines their rightful interests. See Local No. 93 = v. City=20 of Cleveland, 478 U.S. 501, 529-30 (1986). In = particular, the=20 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=20 35,000 acres of farmland for construction of the STAs. = The Cities=20 contend that the Agreement requires them to incur = financial obligations, obtain permits not heretofore required, and = modify=20 existing permits. This argument misconstrues the nature of the Agreement, = as=20 clarified above. The Agreement does not require anything = of defendant-intervenors nor does it accomplish of its own = force and=20 effect any of the terms which might impair their = interests. Certainly the defendant-intervenors cannot claim to incur = burdens=20 as a result of actions which are merely proposed. Yet as = far as=20 their interests are concerned, that is all the Agreement = accomplishes. As noted earlier, any duties or obligations = imposed=20 upon defendant-intervenors will come about only as a = result of an=20 administrative process in which they are allowed to = participate,=20 =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 12 and not by virtue of this Court's approval of the = Agreement. If indeed it turns out that the defendant intervenors = are=20 unable to persuade an impartial hearing officer that the = terms of=20 the Agreement are scientifically unsound or otherwise=20 unwarranted, the result is-neither "unreasonable nor = proscribed" =20 United States v. City of Miami, 664 F.2d 435, 441 (5th. = 1981).=20 B. The Court's Authority to Enter a = Consent=20 Decree Defendant-intervenors also argue that the Court lacks=20 authority to enter a consent decree based on state law = claims.=20 This contention is both factually and legally incorrect. = Inexplicably, defendant-intervenors fail to recognize = the=20 presence of the federal contract claims in Counts III and = IV of=20 the United States' Second Amended Complaint. These claims, = alleging=20 breaches of two separate contracts between the United = States and=20 the District, are governed by federal, not state, law. = See=20 United States v. Seckinger, 397 U.S. 203, 209-10 = (1970);=20 United States v. Allegheny County, 322 U.S. 174, 183 = (1944),=20 overruled on other grounds by United States v. City of Detroit, = 355=20 U.S. 466 (1958) (as noted in United States v. Fresno County = , 429=20 U.S. 452, 462 n. 10); Clearfield Trust Co. v. United States, = 318=20 U.S. 363, 366 (1943); United States v. South Florida Water = Management=20 Dist., 922 F.2d 704, 711 (11th Cir. 1991). Even if the Agreement seeks to vindicate only the state = law=20 claims, the Court has authority to enter a decree = resolving those=20 claims as a result of its subject matter jurisdiction = under 28=20 13 U.S.C. =A7 1345. As long as a consent decree "spring(s) = from and=20 serve(s) to resolve a dispute within the court's subject = matter=20 jurisdiction," the court is empowered to enter the decree = if it=20 comes within the scope of the case made by the pleadings = and advances the objectives of the law it is intended to = enforce.=20 Local No. 93 v. City of Cleveland, 478 U.S. at = 525.=20 Accord Sansom Comm. v. Lynn,735 F.2d 1535, 1538 (3d Cir. 1984);=20 Camden County Jail Inmates v. Parker, 123 F.R.D. 490, 497-98 = (D.N.J.=20 1988). Or, as one court has stated: "The power of a court to enter a = consent=20 decree emanates from its authority to adjudicate the = rights of=20 the parties in the first instance." Lasky v. Continental = Products=20 Corp., 804 F.2d 250, 254 (3d Cir. 1986). Kasper v. Board of Election Comm'rs, 814 F.2d = 332 (7th=20 Cir. 1987), cited by defendant-intervenors, is inapposite. In = that=20 case, the Seventh Circuit found that an overriding = federal=20 interest was necessary to justify a consent decree which would = have committed the defendant, the Chicago Board of Election=20 Commissions, to violate state law. Kasper thus stands = for the=20 proposition that, in the absence of a violation of federal law which might = warrant=20 relief inconsistent with state law, state agencies may = not by=20 consent decree "liberate themselves from the statutes = enacted by=20 the legislature that created them.. Id. at 342. = Nothing=20 about this holding suggests that a consent decree cannot be = based on=20 state law claims. In short, because this Court has subject matter = jurisdiction=20 over the United States' claims, it has the power to = enforce the=20 =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 14 Agreement as a consent decree. C. The Attorney General's Authority=20 to Maintain and SettleThis Action The Farm Interests allege that the Attorney General = lacks=20 authority to maintain, and therefore settle, this action = because,=20 according to the Farm Interests, the authority to pursue = the=20 claims presented in this case belongs exclusively to other = federal agencies whose concurrence in the filing and maintenance = of this=20 suit has not been sufficiently established. The question = of the=20 Attorney General's authority, initially raised in the = Farm Interests' brief in opposition to the motions for = approval of the=20 settlement, also forms the basis of a separate Motion for = Court=20 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=20 finds nothing therein which arguably lends support to = this claim.=20 Without attempting to cover every case and statute = invoked=20 by the Farm Interests and the League, the following = examples are=20 representative of the degree to which their argument = depends upon=20 misstatement and misapplication of the authority cited. = For instance, Farm Interests have cited (but not = quoted) the=20 following statutes as requiring that "[p]rior to = initiating an=20 action to enforce the property interests of the United = States,=20 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. =A7 = 512.=20 Attorney General to advise heads of executive = departments:=20 The head of an executive department may require the = opinion of=20 the Attorney General on questions of law arising in the=20 administration of his department. 28 U.S.C. =A7 = 514.=20 Legal services on pending claims in departments and = agencies:=20 When the head of an executive department or agency = is of the=20 opinion that the interests of the United States require = the=20 service of counsel on the examination of any witness = concerning=20 any claim, or on the legal investigation of any claim, = pending=20 in the department or agency, he shall notify the Attorney=20 General, giving all facts necessary to enable him to = furnish=20 proper professional service in attending the examination = or=20 making the investigation, and the Attorney General shall = provide=20 for the service. 28 U.S.C. =A7 = 517.=20 Interests of United States in pending suits: The=20 Solicitor General, or any officer of the Department of = Justice,=20 may be sent by the Attorney General to any State or = district in=20 the United States to attend to the interests of the = United=20 States in a suit pending in a Court of the United = States, or in=20 a court of a State, or to attend to any other interest = of the=20 United States. 28 U.S.C. =A7 = 518.=20 Conduct and argument of cases: (a) Except when the = Attorney=20 General in a particular case directs otherwise, the = Attorney=20 General and the Solicitor General shall conduct and = argue suits=20 and appeals in the Supreme Court and suits in the United = States=20 Claims Court or in the United States Court of Appeals = for the=20 Federal Circuit and in the Court of International Trade in = which=20 the United States is interested. (b) When the Attorney = General=20 considers it in the interests of the United States, he may=20 personally conduct and argue any case in a court of the = United=20 States in which the United States is interested, or he = may=20 direct the Solicitor General or any officer of the = Department of=20 Justice to do so. As is obvious, these statutes do not stand for the=20 proposition asserted. Moreover, Farm Interests have conspicuously = ignored 28=20 U.S.C. =A7=A7 516 and 519, which reserve to the Attorney = General,=20 absent express congressional directive to the contrary, = the authority to conduct and supervise all litigation to = which the=20 United States is a party.^{FN=20 5} 16 In an attempt to demonstrate that the Attorney = General's=20 authority to bring this action depends on the concurrence = of=20 other federal agencies, the Farm Interests refer to the = Environmental=20 Protection Agency's authority to implement and enforce = the Clean=20 Water Act, 33 U.S.C. =A7 1251 et seq. However, = none of the=20 United States' claims in this case are based on the Clean Water = Act. The League's filing fares no better. For example, in = support=20 of its contention that the Secretary of the Interior has=20 exclusive authority to determine whether legal action should be = taken to=20 protect federal parks and refuges, the League cites = Organized=20 Fishermen of Florida v. Hodel,775 F.2d 1544 (11th = Cir.=20 1985), cert. denied, 476 U.S. 1169 (1980), and Kidd v. = United=20 States Dep't of Interior. Bureau of Land Management, 756 F.2d = 1410 (9th=20 Cir. 1985). In fact, these cases, involving private challenges = to regulatory decisions brought under the federal = Administrative=20 Procedures Act, 5 U.S.C. =A7 706 (2) (a), merely affirmed = the=20 Interior Department's broad discretion to regulate the use and=20 management of federal lands. See Organized Fishermen, 755 F.2d = at 1550=20 ("[t]he task of weighing the competing uses of federal property = has been=20 17 delegated by Congress to the Secretary of the Interior. = Consequently, the Secretary has broad discretion in = determining=20 how best to protect public land resources."); Kidd, 756 F.2d = at 1412=20 ("Congress' constitutional power over the proper = administration=20 and disposition of the public lands is without = limitation."). =20 The question of authority to initiate civil action to protect = federal=20 property was simply not at issue in these cases. The League also relies on the following provision in = the 1980=20 Department of Justice Appropriation Act: The Attorney General may, with the concurrence of any=20 agency or department with primary enforcement=20 responsibility for an environmental or natural = resource=20 law, investigate any violation of an environmental or=20 natural resource law of the United States, and bring = such=20 actions as are necessary to enforce such laws. = Pub. L. No. 96-132, =A7 12, 93 Stat. 1040, 1048 (1979). = The plain wording of this statute makes clear that it = applies=20 only to a ctions to enforce federal environmental laws. = This=20 action is based on state law and federal contract claims; no = federal=20 environmental or natural resource law is at issue in this = case.=20 As a final example, the League cites United States = v.=20 Solomon, 563 F.2d 1123 (4th Cir. 1977), as holding that "the = [Department=20 of Justice] does not have general discretionary authority to = file=20 civil actions within the purview of other federal = agencies=20 without the authorization and concurrence of those agencies." = League's=20 Memorandum in Support of Motion for Court Inquiry, = December 13, 1991, at 4. In Solomon , the Fourth Circuit held = that the=20 United States as a whole lacked statutory authority and standing = to sue=20 to protect the constitutional rights of the mentally = retarded. 18 Significantly, the court distinguished the situation in = which the=20 United States sues to protect its property interests, in = which=20 case no explicit statutory authorization is required. 563 F.2d = at 1126=20 (citing cases). The question of the authority of the = United=20 States as a whole to bring suit is, of course, a separate issue = from the=20 question of which federal agency is responsible for = initiating=20 suit. As to the latter question, the court expressly = stated that=20 "if the United States had authority to bring the suit, = the=20 Attorney General of the United States is the one to act as its=20 counsel." Id. at 1124 (citing 28 U.S.C. =A7=A7 516-519). = Solomon=20 not only lends no support to the League's argument, but indeed bears no = resemblance to the characterization of its holding = advanced by=20 the League. Although the Farm Interests' and the League's reliance = on=20 inapplicable authority is enough to warrant a conclusion = that=20 their challenge to the Attorney General's authority is without = legal=20 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=20 litigation is evident from the United States' witness = list, which=20 includes, among others, personnel from the National Park = Service,=20 Fish and Wildlife Service, Environmental Protection = Agency, Soil=20 Conservation Service, and Army Corp of Engineers. = United=20 States' Revised Designation of Expert Witnesses, November = 19,=20 1990. With respect to the Department of the Interior, Assistant = Interior=20 Secretary Constance Harriman was quoted in a press = article dated=20 19 November 14, 1990, as stating: "We're pursuing an = aggressive litigation strategy. What's at risk is a precious = national park--=20 a world heritage site -- and an important wildlife = refuge. [The=20 damage sustained] is as bad as you can get. We've got to = have=20 relief." Miami Herald, November 14, 1990 (Exhibit = 2 of=20 United States' Opposition to Defendant-Intervenor's Motion = for Court=20 Inquiry, January 27, 1992). Further, when the = settlement=20 reached in this case was announced, the Secretary of the = Interior, Manuel=20 Lujan, issued a press release hailing the settlement as a = "major=20 step toward solving the water quality problems which = threaten the=20 park and the refuge" and as "the beginning of a new era = of partnership designed to meet the goal of responsible = stewardship=20 of our public lands.. (Exhibit 3 of United States' = Opposition to=20 Defendant-Intervenor's Motion for Court Inquiry). = While it may or may not be true that, as the Farm = Interests=20 and the League contend, the concurrence of other federal = agencies=20 occurred only after the suit was filed, this point is = irrelevant=20 in light of the Farm Interests' and the League's failure to = demonstrate that this concurrence was ever needed in the = first=20 place. Having been referred to no authority which suggests = that the=20 Attorney General lacks the authority to pursue and settle = the=20 claims in this case, the Court finds this argument to be = without=20 merit. =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 20 D. Infringement of Federal Agency = Discretion=20 The Farm Interests claim that the Agreement illegally=20 infringes upon the discretionary authority of federal = agencies by=20 requiring these agencies to defend the Agreement against = outside=20 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=20 Florida Project (the "Project") in support of the = Agreement's=20 objectives.^{FN=20 6} A similar argument was addressed in Gorsuch, 718 = F.2d at=20 1127- 29. In Gorsuch, a group of industries = challenged a=20 consent decree 21 which established certain procedures and criteria to be = employed=20 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=20 EPA's discretion by prescribing the method to be used by = the=20 agency in developing its regulations, the appellate court = emphasized=20 that the terms of the decree were shaped, and voluntarily = agreed to,=20 by the EPA: The Decree here was largely the work of the EPA and = the=20 other parties to these suits, not the district court;=20 manifestly, the requirements imposed by the Decree do = not=20 represent judicial intrusion into the Agency's = affairs to=20 the same extent they would if the Decree were `a = creature of=20 judicial cloth.' Id. at 1128 (citation omitted). Because the EPA had = consented=20 to the decree, the situation in Gorsuch was = distinguishable=20 from cases in which agencies were ordered, against their will, to = take=20 action otherwise committed to their discretion. See, e.q., = National=20 Ass'n of Postal Supervisors v. United States Postal = Serv., 602=20 F.2d 420 (D.C. Cir. 1979) (district court interfered with Postal = Service's=20 broad discretion over management affairs in ordering the = Service=20 to maintain specific salary differential between management=20 personnel and rank-and-file employees). In this case, the Agreement before the Court, to be = entered as=20 a consent decree, is arguably less intrusive of federal = agency=20 discretion than the decree in Gorsuch. Whereas the = federal=20 agency in Gorsuch was in a defensive position, the United = States=20 initiated and aggressively pursued this action; any commitments it = has made=20 =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 22 are in furtherance of its own independently-sought = objectives. To=20 hold that the various federal agencies which have = participated in=20 this suit cannot commit themselves to undertake action in = support=20 of an outcome which they affirmatively seek, i.e., = restoration of=20 the Everglades, is itself an infringement of their = discretion to=20 settle this lawsuit in the manner they best see fit. Since any commitments embodied in the Agreement come = with the=20 endorsement and at the urging of the United States, the = Agreement=20 does not impermissibly infringe upon the discretion of = the=20 federal agencies involved. E. The Flood Control Act Defendant-intervenors contend that the Agreement, by=20 establishing new water quality and quantity standards = applicable=20 to the Project, imposes immediate and significant = modifications to=20 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,=20 require prior congressional approval under the Flood = Control Act,=20 33 U.S.C. =A7 701, et seq. The United States' = position is=20 that the Agreement is entirely consistent with the broad aims of = the Project, which include protection of fish and wildlife = resources=20 in addition to flood control and other stated purposes. = See=20 generally Environmental Defense Fund v. Alexander, 467 F. = Supp. 885,=20 899-902, 908-10 (N.D. Miss. 1979) (discussing the = Corps'discretionary authority to make post-authorization modifications to = projects=20 23 which do not materially alter authorized project = purposes); Creppel v. Army Corps of Engineers, 670 F.2d 564, = 572-73=20 (5th Cir. 1982) (same). Although the position of both parties seems to suggest = that a=20 comparison of the terms of the Agreement with the = Project's purposes is in order, the Court finds this task = unnecessary since=20 the Agreement does not mandate any specific or concrete = modification to the Project such as would trigger the = requirement=20 of congressional approval. The Corps' duties under the Agreement are set forth in = =B6 55:=20 The Corps shall apply to DER for stormwater management=20 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=20 Refuge, and shall comply with reasonable permit terms = and=20 conditions relating to the abatement of water quality=20 problems addressed in the Agreement. For existing=20 structures S-10, S-11, S-12, the Corps shall apply on = or=20 before October 1, 1991. The DER anticipates that=20 stormwater management permits for these existing=20 structures may include monitoring, adjustments to=20 regulatory schedules and participation in research=20 consistent with this Agreement ...The Corps agrees to=20 cooperate in the modification of its regulation of the = [Project] in order to support the objectives set forth = in=20 this Agreement. New structures to be designed and=20 constructed by the Corps shall be designed and = constructed=20 in a manner consistent with this Agreement. = In complying with these terms, the Corps may very well = modify=20 certain aspects of the Project, but Paragraph 15 clearly = does not=20 embody any specific or definite plan for modification of = the Project. Hence, any alterations to the Project are, at = this=20 stage, purely conjectural and hypothetical. More fundamentally, = because=20 =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 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=20 the Court cannot be approving or requiring what is not in = the=20 Agreement. Whether the Corps' implementation of its part = of the=20 Agreement will result in specific plans to alter the = Project is=20 an issue which need not and should not be resolved at this = juncture.=20 For present purposes, it is sufficient that the Agreement = itself=20 imposes no such modifications and, as such, does not = require congressional authorization. G. NEPA NEPA requires federal agencies to submit an = environmental=20 impact statement ("EIS") before undertaking "major = Federal=20 actions significantly affecting the quality of the human = environment." 42=20 U.S.C. =A7 4332(2)(C). The purpose of the EIS = requirement, and NEPA=20 as a whole, is to inject environmental considerations = into the=20 decisionmaking processes of federal agencies by forcing = agencies=20 to take a "hard look" at the environmental consequences of = their=20 actions. Robertson v. Methow Valley Citizens = Council, 490=20 U.S. 332, 350 (1989) (citation omitted); Weinberger v. = Catholic=20 Action of Hawaii/Peace Education Project, 454 U.S. 139,=20 143(1981). There is no question but that the remedial measures=20 contemplated by the Agreement will significantly affect = the environment; that is the whole purpose of the Agreement. = Further,=20 the fact that these measures are intended to benefit the = 25 environment does not necessarily render them beyond the = scope of=20 NEPA's requirements. As the Fifth Circuit has observed, = "The proper question is not the intent behind the actions, but = the=20 significance of the new environmental impacts... NEPA is=20 concerned with all significant environmental effects not merely = adverse=20 ones." Environmental Defense Fund v. Marsh, 651 = F.2d 983,=20 993 (5th Cir. Unit A, July 13, 1981)^{FN=20 7} (citation omitted). Accord National Wildlife Federation v. Marsh, 721 F.2d 767, 782-83 = (11th=20 Cir. 1983). In a similar vein, the Council on Environmental = Quality=20 ("CEQ"), which is charged with developing guidelines = implementing=20 NEPA's provisions, includes beneficial impacts in its = definition=20 of "significant effects" on the environment. 40 C.F.R. =A7 = 1508.27(b)(l). While the courts and the CEQ have not = clearly articulated the purpose served by requiring an EIS for = actions=20 intended to benefit the environment, application of = NEPA's=20 mandate to such actions may stem from an implicit recognition = that even=20 the most well-intentioned environmental project can have = unintended=20 negative effects. NEPA, however, applies only to "federal" actions.=20 Accordingly, the critical questions before this Court are = whether=20 the Agreement's remedial measures constitute federal = action and,=20 if so, whether implementation of the Agreement is precluded = pending=20 26 preparation of an EIS.^{FN=20 8} As regards the first issue, the fact that the actions designed to restore the Everglades are to be=20 undertaken by the state agencies is not dispositive. The case law is = quite=20 clear that federal involvement in state or private = activity may=20 be sufficient to federalize the activity for purposes of = NEPA. Cases in which courts have found major federal action = in=20 otherwise nonfederal projects generally involve = discretionary=20 decisionmaking by federal agencies which permit or enable = nonfederal actors to undertake activity affecting the=20 environment. Typical examples include situations in which federal = approval=20 -- usually in the form of a lease, permit, or license -- is=20 required, or where substantial federal funding is involved. See, = e.g.,=20 Maryland Conservation Council. Inc. v. Gilchrist, = 808 F.2d=20 1039, 1042 (4th Cir. 1986) (county highway project involved = federal=20 action inasmuch as county needed a permit from the Army = Corps to=20 dredge a wetlands and highway crossed a state park = purchased with=20 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,=20 152-54 (D.C. Cir. 1985) (enjoining university genetic experiment = approved and funded by the National Institutes of Health without=20 compliance with NEPA); Homeowners Emergency Life Protection Comm. = v.=20 Lynn, 27 541 F.2d 814, 817 (9th Cir. 1976) (per curiam) (grant of = federal=20 funds transformed dam and reservoir project into a = federal-city=20 partnership, rendering project a major federal action); = Davis=20 v. Morton, 469 F.2d 593, 596 (l0th Cir. 1972) = (Interior=20 Secretary required to file an EIS prior to approving lease of = Indian lands=20 to private developer); Greenpeace U.S.A. v. Evans, = 688 F.=20 Supp. 579 (W.D. Wash. 1987) (federal agency's granting of permit = allowing=20 scientists to collect skin and blubber samples from = killer whales=20 was subject to NEPA's requirement of EIS or preliminary = environmental assessment). Other examples involve the = provision=20 of federal services or non-financial assistance to a = nonfederal=20 project. See Sierra Club v. Hodel, 544 F.2d 1036, = 1044=20 (9th Cir. 1976) (by entering into contract to supply power and = construct=20 transmission line to ALCOA plant, federal agency so = federalized=20 the project that it became major federal action); = Scientists'=20 Inst. for Public Information. Inc. v. Atomic Energy = Comm'n, 481=20 F.2d 1079 (D.C. Cir. 1973)(Atomic Energy Commission's development = of technology enabling utility companies to construct = nuclear power=20 plants required an EIS). Although each of the above cases highlights the = presence of a=20 federal decision which in some manner "enables" another = to take=20 action impacting upon the environment, the common theme=20 underlying findings of federal action is the existence of federal = responsibility for the activity in question. See = CEQ=20 regulations, 40 C.F.R. =A7 1508.18, defining "major federal action" as = including=20 effects "which are potentially subject to federal control = and=20 28 responsibility." Such responsibility may be found where a = federal=20 agency wields significant influence over a nonfederal = project or=20 where, even absent such influence, federal participation = is nonetheless substantial. See Atlanta Coalition on = Transp.=20 Crisis, Inc. v. Atlanta Regional Comm'n, 599 F. 2d 1333 = 1347 (5th=20 Cir. 1979) (framing the issue as "whether there is sufficient = federal=20 control over, responsibility for, or involvement with an = action=20 to require preparation of an EIS"). A case which illustrates = this=20 larger theme is Scottsdale Mall v. Indiana, 549 = F.2d 484=20 (7th Cir. 1977), cert. denied, 434 U.S. 1008 (1978). = Scottsdale=20 Mall involved a highway construction project undertaken by the = State=20 of Indiana, which initially received federal funding for the = project=20 but subsequently withdrew from federal funding = consideration in=20 order to avoid compliance with NEPA. The court = nonetheless required preparation of an EIS. Although finding that = Indiana's=20 receipt of early federal approval and financial aid = rendered its=20 highway project federal in character, despite its = subsequent withdrawal from the funding program, the court also found = "major=20 federal action" in the federal government's extensive = involvement=20 in the project's planning. The record revealed federal = participation in the programming, location, design, = preliminary=20 engineering, and right of way acquisition for the=20 project.Id. at 489. Such extensive federal involvement was sufficient to = federalize the state's highway, thus triggering the need = for an=20 EIS. 29 Application of the concept of federal "responsibility" = to the=20 case at hand yields the inevitable conclusion that the = Everglades=20 restoration project contemplated by the Agreement = constitutes=20 major federal action. The United States' responsibility for the = Agreement's remedial measures is evident from the fact = that these=20 provisions were arrived at in consultation and = negotiation with=20 the United States. Through the negotiating process, the = United States=20 no doubt exercised considerable influence over = determination of=20 the precise interim and long-term phosphorous concentration = limits=20 established for the Park and Refuge, the interim and = long-term=20 target reductions in phosphorous loads from the EAA, and = the size=20 and location of the various STAs, all of which will = surely have a=20 significant impact on the environment.^{FN=20 9} Further, the United States will continue to exert control through the Agreement's = dispute=20 resolution mechanism. Pursuant to this provision, the = state agencies are obligated to seek the approval of the United = States=20 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=20 the environment, but also has the continuing power to set new = or different standards by consenting to such changes. This = is the=20 kind of discretionary authority to approve or disapprove = of=20 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=20 state agencies in research and monitoring as well as in = their=20 efforts in the state administrative process.^{FN=20 10} Given the extent of the United States' role both in shaping the Agreement = and in=20 its implementation, the Court finds that the Agreement's = remedial=20 measures constitute major federal action and will = accordingly=20 require preparation of an EIS. The Court will not, however, require an EIS as a = condition to=20 its approval or the parties' implementation of the = Agreement.=20 Though mindful that an EIS is supposed to precede an = agency's=20 decision to move forward on action which affects the = environment,=20 the Court is no less cognizant of NEPA's original = purpose, which=20 is to promote preservation and enhancement of the = environment.=20 See 42 U.S.C. =A7 4331. Here, the United States is attempting to = protect=20 and save the Everglades from further deterioration, thus=20 fulfilling NEPA's purpose. Defendant-intervenors, moreover, have = alleged no=20 harm or even possible harm to the environment which would = occur=20 as a result of the restoration project. Rather, they are = trying to=20 use an environmental law as a means of stalling an=20 environmentally protective measure. 31 The irony of the situation confronting this Court is = similar=20 to that faced by the Sixth Circuit in Pacific Legal = Foundation=20 v. Andrus, 657 F.2d 829 (6th Cir. 1981). There, a = legal=20 foundation and several residents of the State of Tennessee argued = that the=20 Secretary of the Interior violated NEPA by failing to = file an EIS=20 prior to listing several species of mussels as endangered = under=20 the Endangered Species Act. The designation of the mussels as = endangered species had necessitated a halt in = construction of a=20 dam. Although the court, in rejecting the NEPA claim, = rested its=20 holding on a finding of statutory conflict between NEPA = and the=20 Endangered Species Act, it also made a pertinent = observation=20 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=20 the environment and prevent the irretrievable loss of = a=20 natural resource. The Secretary thereby enhances the=20 ability to learn about ecosystems and acts as a=20 responsible trustee of the environment. One of the=20 rationales for exempting the actions of the EPA under = the=20 Clean Air Act from NEPA was that the EPA was working = to=20 preserve and enhance the environment and thus served = the=20 purposes of NEPA. To require EPA to file an impact=20 statement would only hinder its efforts at attaining = the=20 goal of improving the environment. ... This Court is reluctant to make NEPA more of an=20 obstructionist tactic to prevent environment-enhancing = action than it may already have become. = Id. at 837-38 (footnote omitted). ^{FN=20 11} 32 Like the Sixth Circuit, this Court also declines to = permit=20 NEPA to be used as a litigation tactic to delay action = intended=20 to prevent "the irretrievable loss of a natural resource." = --in this=20 case, a resource with the unfortunate distinction as the = most=20 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=20 action which seeks to protect the environment from further = deterioration=20 deserves refuge from... undue delay." United States v. = South=20 Florida Water Management Dist. , 922 F.2d at 712 = (quoting=20 Manasota 88 v. Tidwell, 896 F.2d 1318, 1323 (11th Cir. = 1990)). Finally, the Court notes that an EIS will not be = useless. The=20 restoration project spans a period of about eleven years, = with=20 interim concentration levels not expected to be reached = until the=20 year 1997 and long-term concentration levels set for the = year=20 2002. It is therefore likely that an EIS will have been = completed prior=20 33 to occurrence of at least some of the project's = environmental=20 effects. If actions affecting the environment occur prior = to completion of an EIS, the EIS will nevertheless serve the = useful=20 function of allowing the agencies to determine, at a much = earlier=20 date than would be the case if there were no impact = statement,=20 whether the effects are as anticipated and, if not, = whether any=20 corrective measures are in order. This decision, of = course, rests=20 entirely with the responsible agencies involved. NEPA = mandates a=20 process, not a result. Methow Valley, 490 U.S. at = 350.=20 The Court recognizes that its decision to allow the = Everglades=20 project to proceed while simultaneously requiring an EIS = is somewhat unusual, the typical remedy for a NEPA violation = being=20 maintenance of the status quo pending an environmental = assessment=20 or preparation of an EIS. It is the Court's view, = however, that=20 under the circumstances presented, the result reached = herein=20 " strike [s] a workable balance between some of the = advantages and=20 disadvantages of full application of NEPA." Portland=20 Cement, 486 F.2d at 386.^{FN=20 12} =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 34 III. CONCLUSION The Court finds the Agreement to be fair, reasonable, = and=20 consistent with the public interest. This conclusion = arises from=20 the fundamental fact that the Agreement does no more than = set in=20 motion a process which itself is eminently fair and = reasonable.=20 In essence, the Agreement effects a transfer of these = proceedings to=20 a state administrative forum; this is precisely the = result which=20 the Farm Interests, at least, have consistently sought. = Though=20 defendant-intervenors would prefer that the Court = relinquish its=20 continuing jurisdiction over this case by leaving the = ultimate=20 determination of the United States' rights and remedies = to the=20 state administrative process, the Court declines to do = so. The=20 United States, having the right to be in this Court, has = the=20 right to return to this Court if it is not satisfied with its = remedies=20 in the administrative process. The important point is that the Agreement's remedial = terms=20 cannot take effect without first being tested by = defendant- intervenors and subject to careful and searching scrutiny = in the=20 state administrative process and perhaps again in this = Court. The=20 Agreement's fairness, in short, lies in the fair and = impartial=20 administrative and judicial processes to which its terms = are necessarily subject. The Cities and Farm Interests, as=20 potentially affected parties, are entitled to no more and no less. = I have difficulty understanding the amount of time, = effort,=20 and litigation spawned by an understandable effort to = seek the=20 truth and, if the truth requires, take the steps = necessary to=20 save 35 a precious resource. The time has come, indeed, has = passed, when=20 the admitted problems facing the Everglades must be = addressed.=20 And yet the solutions must be the product of a meaningful = search for=20 the scientific truth. The original parties to this = litigation=20 conclude that they have found the answers or, at least, = are aimed=20 in the right direction. The Cities and the Farm Interests = wish to=20 participate in the finality of these conclusions and so = they=20 shall. Lest there be any doubt from what has been said before = in this=20 Order, it is the Court's hope and expectation that the = administrative process in which defendant-intervenors = will be=20 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=20 agreed to by the original parties herein should be = undertaken,=20 then it will lie with those parties to either accept those = conclusions=20 or seek further relief from the Court. The Court accordingly approves the Agreement and ORDERS = AND=20 ADJUDGES as follows: 1. The Court has jurisdiction = over this=20 action. The Agreement is approved by the Court and by reference made a part of = this Order.=20 The parties to this Agreement are ordered to comply with = its=20 terms. 2. The Court shall retain = jurisdiction=20 over this matter for the purpose of enabling any of the Parties to the Agreement = to apply=20 to the Court at any time for such further orders or = directives as=20 may 36 be necessary or appropriate for enforcement or = modification of=20 the terms of the Agreement. DONE AND ORDERED in chambers at Miami, Florida this=20 24^thday of February, 1992. _______________________________ WILLIAM = M.=20 HOEVELER UNITED STATES DISTRICT JUDGE cc: All counsel of record

Footnotes: 1.=20 As used in this Order, the term = "state=20 agencies" refers to the District and DER. 2. &n= bsp;=20 The force majeure clause in the Agreement, =B6 23, includes=20 "unavoidable legal barriers or restraints, including those = arising=20 from the actions of persons not Parties to this = Agreement." 3. &n= bsp;=20 By incorporation of this language, the Court disposes of=20 defendant-intervenors' arguments based on the APA and the = Farm=20 Interests' due process argument. The suggestion that the = parties be=20 bound by the results of the administrative process is = rejected for=20 the reason stated in the Court's Order of December 5, 1991. = 4.=20 Defendant-intervenors' arguments = based on=20 alleged state law violations are not addressed as these = issues are=20 not properly before the Court; defendant-intervenors have = advised=20 the Court that the state law issues are presently pending = in, and=20 "properly resolved by," the state courts, and are raised = here only=20 to "alert" the Court to their existence. Farm=20 Interests'brief, at 32-33.See Cities' brief , at = 27.=20 Since the defendant-intervenors do not wish this Court to = decide=20 these issues, it will not do so. The Court also declines to = stay=20 entry of a consent decree pending resolution of these issues = by the=20 state courts. The Court further refrains from addressing the Farm = Interests'=20 argument based on the Farmland Protection Policy Act (FPPA), = 7=20 U.S.C. =A7 4201 et seq. The FFPA, by expressly = prohibiting=20 private causes of action based on its provisions, id. = =A7 4209,=20 precludes judicial review of compliance with its terms. 5.=20 28 U.S.C. =A7 516. Conduct of = litigation=20 reserved to Department of Justice: Except as otherwise=20 authorized by law, the conduct of litigation in which the = United=20 States, an agency, or officer thereof is a party, or is = interested,=20 and securing evidence therefor, is reserved to officers of = the=20 Department of Justice, under the direction of the Attorney = General.=20 28 U.S.C. =A7 519. Supervision of Litigation: = Except as=20 otherwise authorized by law, the Attorney General shall = supervise=20 all litigation to which the United States, an agency, or = officer=20 thereof is a party, and shall direct all United States = attorneys,=20 assistant United States attorneys, and special attorneys = appointed=20 under section 543 of this title in the discharge of their = respective=20 duties. 6. &n= bsp;=20 The Farm Interests cite other terms of the Agreement which=20 purportedly restrict federal agency discretion, e.g., the = water=20 quality levels and limits established for the Park and = Refuge, the=20 conversion of farmland to STAs, and funding for research and = monitoring. With respect to the phosphorous concentration levels and = limits=20 for the Park and Refuge and the construction of STAs on = farmland, no=20 federal agency discretion is implicated because these = measures are=20 to be accomplished by the state agencies pursuant to their = own=20 regulatory authority and responsibilities. Compare = Citizens for a=20 Better Environment v. Gorsuch, 718 F.2d 1117 (D.C. Cir. = 1983),=20 cert. denied, 467 U.S. 1219 (1984), discussed = infra.=20 Were it otherwise, resort to the state administrative = process would=20 be unnecessary. If the Farm Interests mean to suggest that = the=20 United States cannot allow itself to be bound by the terms = of the=20 Agreement, this argument fails of its own effect, which = would be to=20 invalidate every decree and agreement, including criminal = plea=20 bargains, entered into by the United States. As far as funding is concerned, the Agreement imposes no = funding=20 obligations on any federal agency. The only reference to = federal=20 funding in the Agreement is found in =B6 11.F, which = provides,=20 inter alia, that funds available under the Clean = Water Act=20 "can be granted" to the state agencies for approved = monitoring=20 programs. This is an affirmation, not a restriction, of the=20 Environmental Protection Agency's funding authority under = the Clean=20 Water Act. 7. &n= bsp;=20 Decisions of the former Fifth Circuit rendered prior to = October 1,=20 1981 are binding on this court. Bonner v. City of = Prichard,=20 661 F.2d 1206 (11th Cir. 1981) (en banc). 8. &n= bsp;=20 The Justice Department's internal regulations exclude the = submission=20 of consent or settlement agreements from its definition of = "major=20 federal action." 28 C.F.R. =A7 61.4. This rule, however, is = not=20 applicable because defendant-intervenors' NEPA argument is = not=20 directed toward the act of submitting the Agreement, but = rather at=20 the specific remedial actions set forth within the = Agreement. 9. = ; =20 Although the United States' role in determining the size and = location of the STAs implicates NEPA's requirements, the = acquisition=20 of land on which the STAs are to be constructed does not. It = is the=20 STAB, and not the mere acquisition of land, that affect the=20 environment. See City of Oak Creek v. Milwaukee Metro. = Sewerage=20 Dist., 576 F. Supp. 482, 488-90 (E.D. Wis. 1983) = (holding NEPA=20 inapplicable to site-acquisition activities). 10. &nb= sp;=20 Agreement =B6=B6 13.B, 17, 18. See also DER's and = District's=20 reply brief, at 32, describing the Agreement as "a new = spirit of=20 cooperation between the state and federal governmental = agencies who=20 have bound themselves to work together in a cooperative = effort to=20 preserve and protect the Everglades...." 11. &nb= sp; =20 The court's mention of the EPA's exemption from NEPA's = provisions is=20 a reference to the "functional equivalent" test, a = judicially=20 created doctrine which exempts from NEPA's requirements = actions of=20 environmental agencies whose organic legislation mandates = specific=20 procedures for consideration of the environment that supply = the=20 "functional equivalent" of an impact statement. See = Alabama ex=20 rel. Siegelman v. EPA, 911 F.2d 499, 504-05 (11th = Cir.=20 1990); Wyoming v. Hathaway, 525 F.2d 66, 72-73 (10th = Cir.=20 1975); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d = 375,=20 380 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 = (1974);=20 Environmental Defense Fund v. EPA, 489 F.2d 1247, = 1256 (D.C.=20 Cir. 1973); Buckeye Power Inc. v. EPA, 481 F.2d 162, = 174 (6th=20 Cir. 1973); Appalacian Power Co. v. EPA, 477 F.2d = 495, 508=20 (4th Cir. 1973). In this case, the "functional equivalent" doctrine is not = available to the United States because the Justice = Department is not=20 an environmental agency and is not operating under any = enabling=20 legislation which would provide the functional equivalent of = an EIS.=20 See Texas Comm. on Natural Resources v. Bergland, 573 = F.2d=20 201, 208 (5th Cir.) (declining to apply the functional = equivalent=20 exception to Forest Service's clearcutting, stating that the = doctrine is generally limited to agencies whose sole = responsibility=20 is to protect the environment), cert. denied, 439 = U.S. 966=20 (1978). 12. &nb= sp; =20 The Court is aware of no case in which an action to = restore=20 an environmental resource was enjoined due to noncompliance = with=20 NEPA. The Eleventh and Fifth Circuit cases referred to at = the=20 outset, in which it was stated that NEPA is also concerned = with=20 beneficial impacts, involved proposals to mitigate a = project's=20 adverse environmental effects. National Wildlife = Federation,=20 721 F.2d at 782-84; Environmental Defense Fund, 651 = F.2d at=20 993. Because the mitigation plans were adopted to allay=20 environmental concerns about a project's potential negative = effect=20 on the environment, it made sense to enjoin further project=20 development until the beneficial or remedial effects of the = plans=20 were clearly established in an EIS.

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