Appendix — Winchester Homes, Inc. v. Hoover Universal, Inc.
Supreme Court brief1994
Ask Donna
What actually matters in this document.
Text
In THE OFFICE OF THE BLaRK
Supreme Court of the United States
OCTOBER TERM, 1994
WESTERN PALM BEACH COUNTY FARM BUREAU,
INC., ROTH FARMS, INC., and K.W.B. FARMS,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
FLORIDA KEYS CITIZEN COALITION, FLORIDA AUDUBON
SOCIETY, FLORIDA WILDLIFE FEDERATION,
ENVIRON MENTAL DEFENSE FUND, SIERRA CLUB,
NATIONAL WILDLIFE FEDERATION, WILDERNESS
SOCIETY, NATIONAL PARKS & CONSERVATION
ASSOCIATION, DEFENDERS OF WILDLIFE, TREASURE
Coast ENVIRONMENTAL COALITION and MICCOSUKEE
TRIBE OF INDIANS OF FLORIDA,
SOUTH FLORIDA WATER MANAGEMENT DISTRICT and
SAM POOLE, its Executive Director, FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION and VIRGINIA
WETHERELL, its Secretary,
CITY OF BELLE GLADE, and CiTy OF CLEWISTON,
FLORIDA SUGAR CANE LEAGUE, INC. and FLORIDA FRUIT
and VEGETABLE ASSOCIATION,
Respondents.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
ROBERT P. SMITH WILLIAM H. GREEN
Counsel of Record for Petitioners GARY P. SAMS
HOPPING BOYD GREEN & SAMS Counsel for Petitioners
Post Office Box 6526 Post Office Box 6526
Tallahassee, Florida 32314 Tallahassee, Florida 32314
(904) 222-7500 (904) 222-7500
WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 | 2 /
APPENDIX TABLE OF CONTENTS
APPENDIX A
Opinion of the court of appeals delivered August
23, 1994, on rendition of the judgment of which
eR RRR RERAR ae en any er egane war een
APPENDIX B
Order of the court of appeals denying rehearing,
as babies
APPENDIX C
Opinions of the court of appeals delivered January
28, 1991, on rendition of prior judgment in the
WI cidicdicdeslainnsdenciaidlh scdhslasihotslbabiastdemaiadnhcsssdadiaceeain Suteinte
APPENDIX D
Order of the court of appeals on prior appeal,
March 22, 1991, refusing consideration of Sugges-
tion as to Lack of Jurisdiction .............00............2-22-
APPENDIX E
Order of the district court on remand, August 22,
1991, granting United States motion to strike Sug-
gestion of Lack of Art III Jurisdiction ....................
APPENDIX F
District court Memorandum Opinion and Order en-
tering Settlement Agreement as Consent Decree,
iin ae at EID etn ORS Pr Sie belo
APPENDIX G
Settlement Agreement by United States and agency
defendants, filed in district court July 26, 1991 ......
APPENDIX H
Florida Surface Water Improvement and Manage-
ment Act, Ch. 87-97 eff. July 1, 1987, [as amended,
§ 373.451 et seq., Fla. Stat. (1993) ] 0.
Page
la
20a
23a
39a
4la
44a
75a
ii
TABLE OF CONTENTS—Continued
APPENDIX I
The Marjory Stoneman Douglas Everglades Pro-
tection Act, Ch. 91-80, Fla. Laws, § 373.4592(3),
i. SS eee siecensiienpblilldiiiosvadieisesdamialoaa
APPENDIX J
Rules of Florida Department of Environmental
Protection (formerly Department of Environ-
mental Regulation), promulgated March 1, 1979,
by Environmental Regulation Commission ............
APPENDIX K
Florida Environmental Protection Act of 1971,
Ch. 71-343, Fla. Laws, § 403.412 (1971) through
EE MIS T= eS Cee RTE EY
APPENDIX L
Cooperative and License Agreement Between the
Central and Southern Florida Flood Control Dis-
trict and the United States of America Signed No-
vember 1950 and June 1951 ......................2.2.0.0.........
APPENDIX M
Memorandum of Agreement Among the Army
Corps of Engineers the South Florida Water Man-
agement District and the National Park Service
for the Purpose of Protecting the Quality of Water
Entering Everglades National Park Signed No-
vember 1983 and February 1984 _.......0000000000000.....
Page
139a
140a
149a
150a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 92-4314, 92-4831
UNITED STATES OF AMERICA,
Plaintiff-Counterclaim Defendant-
A ppellee-Cross-A ppellant,
FLorRIpA Keys CITIZEN COALITION, FLORIDA AUDUBON
SOCIETY, FLORIDA WILDLIFE FEDERATION, ENVIRON-
MENTAL DEFENSE FUND, SIERRA CLUB, NATIONAL
WILDLIFE FEDERATION, WILDERNESS SociETy, NaA-
TIONAL PARKS & CONSERVATION ASSOCIATION, Dkr-
FENDERS OF WILDLIFE and TREASURE COAST ENVIRON-
MENTAL COALITION, MICCOSUKEE TRIBE OF INDIANS
OF FLORIDA,
Intervenor Plaintiffs-A ppellees,
v.
SOUTHERN FLORIDA WATER MANAGEMENT DISTRICT and
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULA-
TION, TILFORD CREEL,
Defendants-Counterclaim
Plaintiffs-A ppellees,
CAROL BROWNER,
Defendant-A ppellee,
CiTy OF BELLE GLADE, CITY OF CLEWISTON,
Intervenor-Defendants-A ppellants-
Cross-A ppellees,
WESTERN PALM BEACH COUNTY FARM BUREAU, INC.,
FLORIDA SUGAR CANE LEAGUE, INC., ROTH FARMS,
Inc. and K.W.B. FARMs,
Intervenor-Defendants-Counterclaim,
Plaintiffs-A ppellants-Cross-A ppellees,
2a
FLORIDA FRUIT & VEGETABLE ASSOCIATION,
Intervenor-Defendant,
SOUTH BAY GROWERS, INC.,
Movant,
COLONEL BRUCE A. MALSON, et al.,
Counterclaim Defendants.
UNITED STATES OF AMERICA,
Plaintiff-Counterclaim
Defendant-A ppellant,
FLORIDA KEYS CITIZEN COALITION,
Intervenor-Plaintiff-
Appellee,
FLORIDA AUDUBON SOCIETY, et al.,
Intervenor-Plaintiffs,
, &
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Defendants-Counterclaim
Plaintiffs-A ppellees,
TILFORD CREEL, et al.,
Defendants,
CiTY OF BELLE GLADE, CITY OF CLEWISTON,
Intervenor-Defendants-
Appellants,
WEST PALM BEACH COUNTY FARM BUREAU, INC.,
FLORIDA SUGAR CANE LEAGUE, INC., ROTH FARMS, INC.,
and K.W.B. FARMS,
Intervenor-Defendants-Counterclaim,
Plaintiffs-A ppellants,
FLORIDA FRUIT & VEGETABLE ASSOCIATION,
Intervenor-Defendant,
3a
SOUTH BAY GROWERS, INC.,
Movant,
COLONEL BRUCE A. MALSON, et al.,
Counterclaim Defendants.
Appeals from the United States District Court
for the Southern District of Florida
August 23, 1994
Before BLACK, Circuit Judge, DYER, Senior Circuit
Judge, and ALAIMO *, Senior Districi Judge.
DYER, Senior Circuit Judge:
The Intervenor defendants appeal an interlocutory or-
der granting an injunction entered by the district court in
its Order Entering Settlement Agreement as Consent De-
cree. They assert lack of jurisdiction and a host of other
issues that exceed the scope of their limited right to in-
tervene granted by the prior panel in this case. On the
cross-appeal of the United States, the government appeals
the judgment of the district court that an impact state-
ment pursuant to the National Environmental Policy Act
of 1969 (“NEPA”), 42 U.S.C. § 4321 et seg. (1970),
is required. We affirm in part, reverse in part, and re-
mand for further proceedings.
I. JURISDICTION
Standard of Review
The question of jurisdiction requires this court to sat-
isfy itself not only of its own jurisdiction but also of the
jurisdiction of the district court. Bender v. Williamsport
* Honorable Anthony A. Alaimo, Senior U.S. District Judge for
the Southern District of Georgia, sitting by designation.
;
i
Fy
Pe MT
4a
Area Sch. Dist., 475 U.S. 534, 541-42, 106 S.Ct. 1326,
1331-32, 89 L.Ed.2d 501 (1986).
Basis of Appellate Jurisdiction
This court has jurisdiction over this appeal pursuant
to 28 U.S.C.A. § 1292(a)(1) (West Supp.1992), which
grants circuit courts jurisdiction over interlocutory orders
of district courts in granting, continuing, modifying, re-
fusing or dissolving injunctions. Although interlocutory
in nature, the Consent Decree is effectively dispositive of
all claims below.
Order on Appeal
The Consent Decree approves a Settlement Agreement
executed by two State agencies, the South Florida Water
Management District (“SFWMD”), the Florida Depart-
ment of Environmental Regulation (“DER”), and the
United States. The Intervenor defendants, City of Belle
Glade, City of Clewiston, Western Palm Beach County
Farm Bureau, Inc., Florida Sugar Cane League, Inc.,
Roth Farms, Inc., KWB Farms and the Florida Fruit &
Vegetable Association (hereinafter collectively referred
to as the “Intervenors”) are not parties to the Settlement
Agreement.
Intervening Legislative Act
During the pendency of this appeal, the Everglades
Forever Act, chapter 94-115, to be codified at section
373.4592, Florida Statutes (Supp.1994), was passed by
the Florida legislature on April 15, 1994, and became
effective when signed by the Governor on May 3, 1994.
Issues Presented
The issue on the Intervenors’ appeal is limited to the
question of whether the district court or this court has
Article III case or controversy jurisdiction of the United
States’ claim of rights and remedy pursuant to 28 U.S.C.
§§ 1331 and 1345. The Intervenors have raised issues on
this appeal that exceed the scope of their limited right to
hare 7S RI ad
Sa
intervene granted by this Court in United States v. S. Fla.
Water Management Dist., 922 F.2d 704, 706 (11th Cir.),
cert. denied, US. , 112 S.Ct. 407, 116 L.Ed.
2d 356 (1991). In both their briefs and at oral argu-
ment the Intervenors evidenced no appreciation for the
limited extent of their participation in this litigation. The
Intervenors’ sole right is to raise jurisdiction as an issue
with respect to Count 1 of the complaint.’ This Court
previously held that the Intervenors had the right to inter-
vene “solely by reason of the issues raised in Count x.
of the complaint. Jd. The grant of intervention was
premised on the Court’s concern that the United States
sought in Count 1 to have the district court translate nar-
rative water quality standards into numeric limits. Jd. at
: _ 112 S.C. at 708-09. In the initial appeal, it
was not even clear that the United States’ complaint
sought to have the district court set a numeric standard.
See id. at n. 6, 112 S. Ct. at 708 n. 6 (“In fairness
to the District Court, we note that the United States
claimed in that forum that it was not seeking a numeric
standard” (emphasis added)). Thus, our prior opinion
clearly limits the Intervenors’ right to intervene solely to
the extent that the district court’s resolution of this case
might actually set a numeric standard. But the district
court did not set such limits in resolving the case. In-
stead, the United States and the State defendants settled
their differences by agreeing to return the setting of nu-
meric limits to the State administrative forum.
1 The Intervenors attempt to argue that: (1) they were denied
due process; (2) the Attorney General lacked independent author-
ity to bring the claims without the consent of the responsible con-
tracting agencies; (3) the court’s exercise of jurisdiction violated
fundamental principles of abstention, comity and federalism; (4)
the Settlement Agreement violates the Florida Sunshine Law; (5)
the Settlement Agreement exceeds the scope of the proceedings;
(6) the Agreement violates the Flood Control Act; ( 7) the Agree-
ment violates the Farmland Protection Policy Act. The Intervenors
lack standing to raise these issues because they are outside of the
limited scope of the intervention that was permitted by this Court.
6a
By arguing the many issues in which the Intervenors
lack standing, they have required this Court to expend
much time and effort which was entirely unnecessary.
The Everglades and the Refuge
The Everglades is a limestone depression filled with
grass and thick organic deposits from a broad southbound
sheet of water. There are some 14 miles of canals and
levees, dikes, pumps and water storage areas. This water
system artificially transports water throughout the Kissim-
mee, Okeechobee and Everglade basins. Vast quantities
of waters are delivered to the Loxahatchee National Wild-
life Refuge and the Everglades National Park. One of
the largest consumers of water south of Lake Okeechobee
is the agri-industry located within a 700,000 acre basin
called the Everglades Agricultural Area (“EAA”). The
EAA lies south of Lake Okeechobee between the lake and
the water conservation area. The Park provides sancutary
to rare, threatened and endangered species of wildlife.
The Park has diverse and complex eco-systems that re-
quire non-polluted, low nutrient waters for their ecological
integrity.
The Refugee is a remnant of the original Northern
Everglades, and has the same diversity of marsh habitat.
It is also a sanctuary to unique wildlife species. Low
nutrient waters are also required in the Refuge to pre-
Serve its native habitat.
Large quantities of polluted waters have resulted in the
destruction of lower forms of aquatic life essential to the
preservation of the sensitive ecosystems in the Park and
Refuge.
Procedural History
Count | of the government’s complaint alleges that
both DER and SFWMD have failed to exercise their
power and responsibilities and failed to enforce State
water laws in (a’ regulating polluted water from the
EAA that contain harmful nutrients, (b) failing to pre-
a
Ja
vent violations of State water quality standards for water
entering the Park and Refuge, and (c) having deliberately
and consistently diverted polluted waters into the Refuge.
Count 2 alleges that SFWMD has violated State statu-
tory and common law by operating unpermitted structures.
Count 3 alleges that SFWMD breached a contract with
the United States Corps of Engineers which sets forth
water quality standards for deliveries to the Park to insure
that surface waters are of sufficient purity to prevent eco-
logical damage to the Park.
Count 4 alleges that SFWMD breached a 50-year con-
tract with the United States under which it was agreed
that the Service should use the property there delineated
as a wildlife management area to promote the conserva-
tion of wildlife, fish and game.
The relief prayed for by the government is, inter alia,
that DER and SFWMD be mandated to carry out their
statutory duties to enforce all applicable water quality
standards in waters diverted to the Park and Refuge, and
to act within their authority to insure that the waters
delivered to the Park and Refuge conform to the require-
ments of the 1984 and 1951 contracts.
The defendants DER and SFWMD denied that the
district court has federal question jurisdiction under 28
U.S.C. § 1331 or subject matter jurisdiction under section
1345; that there is no case or controversy under Article
III of the Constitution; nor is there any federal statute
authorizing such action, or a Florida statute under which
the State agencies have clearly consented to the suit. The
defendants also asserted that the State’s administrative
remedies provide an adequate remedy at law.
After years of lengthy, complex, and acrimonious liti-
gation, the United States, DER and SFWMD resolved
all of their respective claims against each other by enter-
ing into a Settlement Agreement which the district court
approved and entered as a Consent Decree. In a lengthy
8a
Memorandum Opinion and Order, United States v. S.
Fla. Water Management Dist., 847 F.Supp. 1567 (S.D.
Fia.1992), the district court exhaustively reviewed and
then approved the terms of the Agreement as fair, ade-
quate and reasonable. The Agreement is not self-executing
in that its provisions are to be carried out in accordance
with Florida law and procedures.
DISCUSSION
The decisive issue on this appeal is whether the district
court has jurisdiction to entertain this action.
The Intervenors attack as fundamental error in the
entry of the Consent Decree the court’s lack of jurisdic-
tion. The district court held it had jurisdiction of this
action primarily because 28 U.S.C. § 1345 unequivocally
grants jurisdiction without regard to the subject matter
of the litigation. The Intervenors challenge the court’s ju-
risdiction, arguing that there is no case or controversy.
28 U.S.C. § 1345—Subject Matter Jurisdiction
The district court held that:
[t]he Court’s jurisdiction over this case is predicated
primarily, though not exclusively, upon 28 U.S.C.
§ 1345: “Except as otherwise provided by Act of
Congress, the district courts shall have original juris-
diction of all civil actions, suits or proceedings com-
menced by the United States, or by any agency or
officer thereof expressly authorized to sue by Act of
Congress.”
The district court went on to say:
Under § 1345, the mere presence of the United States
as a plaintiff in this case is enough to vest this Court
with jurisdiction absent Congressional authority
clearly indicating otherwise.
* * * *
9a
It is also evident from the statutory language that
_. a clear Act of Congress is required to divest
district courts of their jurisdiction over actions com-
menced by the United States. The phrase “Except as
otherwise provided by Act of Congress,’ at the be-
ginning of the section was inserted to make clear that
jurisdiction exists generally in district courts in the
absence of special provisions conferring it elsewhere.
S. Fla. Water Management Dist., 847 F.Supp. 1567 (S.D.
Fla.) (emphasis in the original).
The Intervenors concede, as they must, that there is no
subject matter Fic as such to United States’ suits against
the States. See United States v. Marchetti, 466 F.2d 1309,
1313 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct.
553, 34 L.Ed.2d 516 (1972); United States v. California,
328 F.2d 729, 732 (9th Cir.), cert. denied, 379 U.S. 817,
85 S.Ct. 34, 13 L.Ed.2d 29 (1964); United States v.
Puerto Rico, 551 F.Supp. 864, 865 (D.P.R.1982), aff'd.,
721 F.2d 832 (1st Cir.1983); 14 Charles A. Wright et al.,
Federal Practice and Procedure § 3651 (1985). The In-
tervenors submit, however, that Section 1345 “simply
assigns to the district court, it does nothing to create or
define the jurisdiction created by Article III.” We dis-
agree.
When there is justiciability, the United States may,
under section 1345, sue in the federal court irrespective of
subject matter. In the seminal case of Flast v. Cohen, 392
U.S. 83, 94-95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947
(1968), the Supreme Court defined “case or controversy”
as used in Article III of the Constitution:
Embodied in the words “cases” and “controversies”
are two complementary but somewhat different limita-
tions. In part those words limit the business of the
federal courts to questions presented in an adversary
context and in a form historically viewed as capable
of resolution throught the judicial process. And in
10a
part, those words define the role assigned to the ju-
diciary in a tripartite allocation of power to assure
that the federal courts will not intrude into areas
committed to other branches of government. Justici-
ability is the term of art employed to give expression
to the dual limitation placed upon federal courts by
the case-and-controversy doctrine.
We explore the application of this doctrine to this case.
Case or Controversy
Preliminarily, to define the issues in Count 1, it is im-
portant to consider what the district court did and what
it did not do. This is because the thrust of the Inter-
venors’ argument is that this is simply “litigation to coerce
the making of Stete regulations that a federal judge deems
Suitable under State law for United States’ property in-
terests.” We do not accept this as a correct Statement of
the issue involved. Rather, as the district court explained:
“Nothing in this Agreement is intended 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.” 847 F.Supp. at 1572. The district court concluded
that “[t]he Agreement does no more than set in motion a
process . .. .The Agreement effects a transfer of these
proceedings to a state administrative forum.” Jd. at 1582.
The government’s amended complaint did not seek, nor
does the Consent Decree provide, that the government’s
role is to force the State to compose or enforce stricter
State law regulations. On the contrary, the Agreement
commits the State to perform certain remedial measures
which are fully authorized by State law. The essence of
the Agreement is to achieve compliance with State law.
This background dictates that the narrow issue before
us is whether the district court has jurisdiction of this suit
brought by the United States, as a Proprietary owner of
lla
the Park and Refuge, to protect its property from the
nutrient pollution emanating from the EAA, by requiring
the State agencies to carry out their State statutory duties
to enforce the applicable water quality standards in waters
diverted to the Park and Refuge.
Focusing on Article III, Section 2, of the Constitution
which extends the federal judicial power to “controversies
to which the United States shall be a party,” the Interve-
nors argue that the settling parties are free to enter into
any agreement that they may choose, but the district court
may not enter such an agreement as a consent decree
unless it is founded upon a federal statute or constitutional
right.
To support this position, the Intervenors rely on restric-
tions on federal suits against states based on the powers
granted to Congress and the residual state powers under
the Tenth Amendment. They point to cases which strike
down as unconstitutional an intrusion by Congress into the
lawmaking functions of the states, and argue by analogy
that the same principles apply to Article III jurisdiction.
See New York v. United States, US. , 112 S.Ct.
2408, 120 L.Ed.2d 120 (1992) (under the Tenth Amend-
ment Congress may not compel the states to enact or ad-
minister a federal regulatory program); Gregory v. Ash-
croft, 501 U.S. 452, 460-66, 111 S.Ct. 2395, 2401-03,
115 L.Ed.2d 410 (1991) (requiring “plain statement” in
acts of Congress to override state decisions); Will v. Mich.
Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304,
2309, 105 L.Ed.2d 45 (1989) (requirement of a clear
statement in legislation with intent to affect the federal
balance); Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)
(category of “traditional governmental function” is un-
tenable standard for judicial decisions regarding state
immunity under the Commerce Clause).
Intervenors submit that Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67
12a
(1984) condemns a federal court in instructing state
officials on how to conform their conduct to state law.
We observe that the court was there called upon to deter-
mine whether the claim against the petitioners in carrying
out their official duties violated state law and, therefore,
is a claim against the state barred by the Eleventh Amend-
ment. There is no suggestion in the case sub judice that
the Consent Decree violates state law. On the contrary,
its object was to require adherence to state law.
Next, the Intervenors draw our attention to Kasper v.
Bd. of Elections Comm'rs of City of Chicago, 814 F.2d
332 (7th Cir.1987), where the court quoted Pennhurst,
465 U.S. at 106, 104 S.Ct. at 911: “[I]t is difficult to
think of a greater intrusion on state sovereignty than when
a federal court instructs state officials on how to conform
their conduct to state law.” 814 F.2d at 342. Interve-
nors extropolate this language as being applicable to this
case. We find it to be clearly out of context. The court
made it crystal clear in Kasper that “[t]he Republican
plaintiffs’ complaint contends that the Board has neglected
its duties under state law. Yet, the decree does not stop
with perfecting the Board’s adherence to state law and
exercising such discretion as the Board possesses. It com-
mits the Board to violate state law.” Id. at 341 (emphasis
in the original). There is not a whisper of a suggestion
that in this case the government is attempting to require
the State to violate the law.
The Intervenors concede that the Tenth Amendment is
not a limitation on Article III jurisdiction in this case, nor
is it argued that the Eleventh Amendment has any ap-
plicability. We do not perceive how these cited decisions
are helpful in determining whether there is a controversy
question in this case.
Next, the Intervenors rely on cases in which citizens sue
the federal or state sovereigns and the integrity of sepa-
tated powers of reserved sovereignty is continually re-
13a
affirmed. They argue that these principles are not different
when the United States sues a state. Such cases are Allen
v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d
556 (1984); City of Los Angeles v. Lyons, 461 U.S. 95,
103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O'Shea v. Little-
ton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
But these cases are bottomed on the plaintiff's lack of
injury in not satisfying the “case or controversy” require-
ment. Allen held that in a citizen’s suit the plaintiff must
allege personal injury fairly traceable to the defendant’s
allegedly wrongful conduct. Lyons declared that to satisfy
the “case or controversy” requirement of Article III, “the
plaintiff must show that he ‘has sustained, or is in immedi-
ate danger of sustaining, some direct injury’ as a result of
the challenged official conduct.” 461 U.S. a 101-02,
103 S.Ct. at 1665. O’Shea was a citizens’ civil rights suit
“where none of the named plaintiffs . . . [has] suffered
any injury.” 414 US. at 495, 94 S.Ct. at 676.
Here it is alleged with specificity the direct and con-
tinuing injury and damage to the ecosystems of the Park
and Refuge because of nutrient water flowing from the
EAA which could have been, and should be, prevented by
State agencies acting to enforce their own laws and regu-
lations.
Intervenors next argue that Firefighters Local Union
No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81
L.Ed.2d 483 (1984) and System Fed’n No. 9] v. Wright,
364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961)
demonstrate the inappropriateness of the Consent Decree.
We find these cases inapposite. Firefighters was a Title
VII case concerned with an injunction entered outside of
the scope of the consent decree. System Fed’n was con-
cerned with a change of statutory law that was in conflict
with the terms of the consent decree. The court there held
that it must be free to modify the terms of the consent
decree where a change in the law brings those terms in
14a
conflict with statutory law. 364 U.S. at 651-53, 81 S.Ct.
at 373-74,
Finally, the Intervenors insist that there is nO case or
controversy in the district court because the action is not
based on a constitutional right or a federal statute. We
have found no authority to support this broad statement.
On the contrary, in United States y. California, 328 F.2d
729 (9th Cir.1964), the court stated that “the Constitu-
tion grants . . . jurisdiction . . . over civil Suits brought
by the United States against a State without specific con-
sent regardless of the nature of the controversy, provided
the issue is justiciable. .. .” Jd. at 731. The court pointed
out in United States v. Hill, 694 F.2d 258 (D.C.Cir.
1982) that “[a]lthough other special jurisdictional provi-
sions may also give the district court jurisdiction over
some cases brought by the United States, the government
need not have any specific Statutory authorization for a
Particular action inasmuch as general jurisdiction is con-
ferred by Section 1345.” Id. at 268 (emphasis in origi-
nal). Again, in United States y. Marchetti, 466 F.2d
1309 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct.
553, 34 L.Ed.2d 516 (1972), the court held that jurisdic-
tion arises from the United States as a party. “The govern-
ment can sue even if there is no specific authorization. In
such cases, however, it must have some interest to be
vindicated sufficient to give it standing.” Jd. at 1313.
In 14 Charles A. Wright et al., Federal Practice and
Procedure § 3651 (1985), the authors state:
[T]he government need not have specific statutory
authorization for a particular action inasmuch as gen-
eral jurisdiction is conferred by Section 1345... .
[When the United States is not suing to vindicate a
specific federal statutory right but simply bringing
suit under the general jurisdictional provision in Sec-
tion 1345, it has been held that it must have an
15a
interest in the dispute that is sufficient to give it
standing. . . . The government's interest need not be
pecuniary or proprietary; it simply may decide to
litigate to assure the proper implementation of its
policies and programs.
We conclude that this action does present a case or
controversy. The justiciability of the controversy rests on
the government’s assertion that the use of its public lands
is being destroyed by nutrient-laden water because the
State agencies are not fulfilling their legislatively enacted
duties. Nor does it intrude, in the circumstances of this
case, into areas reserved by the sovereignty of the State.
Il. NATIONAL ENVIRONMENTAL POLICY ACT
The United States appeals the judgment of the district
court that the federal government’s participation in ne-
gotiating and implementing the Settlement Agreement,
which requires State remedial action to be taken, is major
federal action within the meaning of section 102 of the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321, and, therefore, preparation of an Environmental
Impact Statement (“EIS”) is required, but not simul-
taneously with or as a condition to the implementation
of the Settlement Agreement. We reverse.”
The underlying facts are set forth in the Intervenors’
appeal.
Standard of Review
The district court’s findings of fact are reviewable for
clear error. See Newell v. Prudential Ins. Co. of Am., 904
F.2d 644, 649 (11th Cir.1990). Whether control is the
sort that NEPA regards as significant for EIS purposes
is a question of law subject to de novo review. Sierra
Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988).
2 This appeal by the United States, No. 92-4831, is consolidated
with Intervenors’ appeal, No. 92-4314.
16a
Major Federal Action
In Save Barton Creek Ass'n v. Fed. Highway Admin.,
950 F.2d 1129 (Sth Cir.1992), the court held that:
NEPA requires that federal agencies consider the
environmental consequences of “major federal action
significantly affecting the quality of the human en-
vironment”. 42 U.S.C. § 4332(a)(C). The require-
ments of NEPA, which include, among other things,
the submission of an EIS, apply only when the fed-
eral government’s involvement in a project is suffi-
cient to constitute “major federal action”.
950 F.2d at 1133 (footnote omitted ) .
We must therefore determine whether, at this juncture,
sufficient federal involvement exists in what is proposed
in the Settlement Agreement to constitute major federal
action affecting the environment under NEPA.
The focus in this case is on the federal agencies’ control
and responsibility over material aspects of the specific
project. See, e.g., Maryland Conservation Council, Inc.
v. Gilchrist, 808 F.2d 1039, 1042-43 (4th Cir.1986) (ex-
ercise of federal approval power over state project). Ma-
jor federal action can exist when the primary actors are
not federal agencies. Macht v. Skinner, 916 F.2d 13
(D.C.Cir.1990); Save Barton Creek Ass'n, 950 F.2d
at 1133. There are no clear standards for defining the
point at which federal participation transforms a state
project into federal action. “Federal courts have not
agreed on the amount of federal involvement necessary
to trigger the applicability of NEPA.” Village of Los
Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477,
1480 (10th Cir.1990), cert. denied, 498 U.S. 1109, 111
S.Ct. 1017, 112 L.Ed.2d 1099 (1991). The touchstone
of major federal activity constitutes a federal agency’s au-
thority to influence nonfederal activity. “[T]he federal
agency must possess actual power to control the nonfed-
eral activity.” Sierra Club, 848 F.2d at 1089.
e pee
17a
The fact that proposals have been made as the result
of a state-federal compromise agreement to compel a non-
federal party to undertake its legal responsibility does not
convert the prepesed state remedial measures into federal
responsibilities for NEPA purposes. The power to in-
fluence the outcome of a lawsuit by advocacy and ne-
gotiation is not synonymous with a federal agency’s au-
thority to exercise control over a non-federal project
which requires federal approval as a legal precondition
to implementation. We must bear in mind that the, dis-
trict court properly found that the Agreement requires the
agencies to fulfill their obligations under State law by set-
ting in motion a process to effect a transfer of the pro-
ceedings to a State administrative forum. The rendering
of advice and technical consultation to aid in the defense
of the Settlement Agreement in legal proceedings does not
significantly affect the environment and does not federalize
the State activities. The possibility that federal funding
will be provided in the future is not sufficient to federalize
a state project, even when such funding is likely. Atlanta
Coalition on the Transp. Crisis, Inc. v. Atlanta Regional
Comm'n, 599 F.2d 1333, 1347 (Sth Cir.1979).
The district court concluded that the State’s restoration
program is federalized by three factors: (1) the influence
exercised by the United States through the settlement
negotiations and remedial measures proposed in the Set-
tlement Agreement; (2) the United States’ participation
in research and monitoring and the administrative actions
contemplated by the Agreement; and (3) the United
States’ continuing power to withhold consent and invoke
dispute resolution mechanisms concerning the State agen-
cies’ restoration program decisions.
As we have previously discussed at some length, the
first two of the three factors relied on by the district court
in finding that the State’s restoration program is federal-
ized under the Settlement Agreement are insufficient for
purposes of NEPA. In sum, the federal government does
not possess the requisite control to federalize a project
18a
when the state agencies retain their state law authority
to make the decisions concerning the project. See Village
of Los Ranchos, 906 F.2d at 1480-81.
NEPA applies only when there is federal decision-
making, not merely federal involvement in nonfederal
decision-making. The State agencies will implement the
remedial program pursuant to existing authority under
Florida law and in accordance with State statutory sched-
ules and procedures.
The third factor relied upon by the district court is the
United States’ continuing power to withhold consent and
invoke dispute resolution mechanisms. However, we read
the retained jurisdiction provision of the district court to
be limited to the parties to the Agreement without power
to implicate third parties. Thus, jurisdiction is retained
only for the purpose of insuring that there will be no
unilateral action that would contravene the provisions of
the Agreement and precipitate fresh litigation. This limi-
tation provision does not provide the control necessary to
presently treat the State agencies’ remedial activity as
major federal action.
The United States does not contend that NEPA obliga-
tions will never arise during the implementation of the
remedial measures. The objection is to scope and timing.
We agree. NEPA obligations may attach to specific ac-
tivities which may be proposed as part of the State’s im-
plementation program. A federal agency may undertake
a major federal action in the form of funding as a part
of the restoration program, issuance of a permit or license
to a State agency. or a change of operations over which
the federal agency has authority.
It would be premature and serve no useful purpose to
now require the preparation of an EIS when no specific
federal action has been proposed. See Environmental De-
fense Fund v. Marsh, 651 F.2d 983, 999 (Sth Cir. Unit
A July 1981) (preparatory designs and studies not com-
pleted); Kleppe v. Sierra Club, 427 US. 390, 399-402, 96
eee ee ea ee
19a
S.Ct. 2718, 2725-27, 49 L.Ed.2d 576 (1976) (no factual
predicate for EIS without a proposed plan). NEPA does
not require evaluation of hypothetical proposals, impacts
and alternatives concerning a nonexistent federal proposal.
This would seem to be an impossible task. If and when
such activities are actually proposed, the responsible
agency will have to comply with NEPA requirements, and
the question of whether an EIS is required will then be
addressed. Now, none of these types of federal action
has yet been performed.
CONCLUSION
In the appeal of the Intervenors, No. 92-4314, the dis-
trict court and this court have jurisdiction of the cause
pursuant to the provisions of 28 U.S.C. §§ 1331 and 1345.
In view of the enactment of the Everglades Forever
Act by the Florida legislature during the pendency of this
appeal, we REMAND this cause to the district court for
further consideration in the light of this legislation.
In the appeal of the United States, No. 92-4831, the
United States is not required, at this time, to prepare an
EIS under NEPA.
20a
APPENDIX B
[Filed Oct. 11, 1994]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 92-4314
UNITED STATES OF AMERICA,
Plaintiff-
Counterclaim defendant
A ppellee-Cross-appellant,
FLORIDA Keys CITIZEN COALITION, FLORIDA AUDUBON
SOCIETY, FLORIDA WILDLIFE FEDERATION, ENVIRON-
MENTAL DEFENSE FUND, SIERRA CLUB, NATIONAL
WILDLIFE FEDERATION, WILDERNESS SociETY, Na-
TIONAL PARKS & CONSERVATION ASSOCIATION, DEFEND-
ERS OF WILDLIFE AND TREASURE COAST ENVIRON-
MENTAL COALITION, MICCOSUKEE TRIBE OF INDIANS
OF FLORIDA,
Intervenor Plaintiffs-
Appellees,
versus
SOUTH FLORIDA WATER MANAGEMENT DISTRICT and
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Defendants-
Counterclaim plaintiffs-
Appellees,
TILFORD CREEL,
Defendant-
Counterclaim plaintiff-
Appellee.
CAROL BROWNER,
Defendant-A ppellee,
City OF BELLE GLape, CITY oF CLEWISTON,
Intervenor defendants-
A ppellants-
Cross-appellees,
fat oD 5 etal
21a
WESTERN PALM BEACH COUNTY FARM BUREAU, INC.,
FLORIDA SUGAR CANE LEAGUE, INC.,
ROTH FARMS, INC. and K.W.B. FARMs,
Intervenor defendants-
Counterclaim plaintiffs-
A ppellants-
Cross-appellees,
FLORIDA Fruit & VEGETABLE ASSOCIATION,
Intervenor defendants,
SOUTH Bay GROWERS, INC.,
Movants,
COLONEL BRUCE A. MALSON, ef al.,
Counterclaim defendants.
No. 92-4831
UNITED STATES OF AMERICA,
Plaintiff-
Counterclaim defendant-
Appellant,
FLORIDA KEyYs CITIZEN COALITION,
Intervenor-Plaintiff-
Appellee,
FLORIDA AUDUBON SOCIETY, et al.,
Intervenor Plaintiffs,
versus
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Defendant-
Counterclaim plaintiff-
Appellee,
FLORIDA DEPARTMENT OF
ENVIRONMENTAL REGULATION,
Defendant-
Counterclaim plaintiff-
22a
TILFORD CREEL, et al.,
Defendants,
CITY OF BELLE GLADE, CITY OF CLEWISTON,
Intervenor defendants-
Appellants-
Cross-appellees,
WESTERN PALM BEACH COUNTY FarRM,
FLORIDA SUGAR CANE LEAGUE, INC.,
ROTH FARMS, INC. and K.W.B. FARMS,
Intervenor defendants-
Counterclaim plaintiffs-
A ppellants-
Cross-appellees,
FLORIDA FRUIT & VEGETABLE ASSOCIATION,
Intervenor defendants,
SOUTH BAY GROWERS, INC.,
Movant,
COLONEL BRUCE A. MALSON, et al.,
Counterclaim defendants.
ON PETITION FOR REHEARING
BEFORE: BLACK, Circuit Judge, DYER, Senior Cir-
cuit Judge and ALAIMO%, Senior District Judge.
PER CURIAM:
The Petition for Rehearing filed by Intervenor-Appel-
lants, Farm Bureau, Roth Farms and K.W.B. Farms, is
denied.
ENTERED FOR THE COURT:
/s/ Susan H. Black
United States Circuit Judge
* Honorable Anthony A. Alaimo, Senior U.S. District Judge for
the Southern District of Georgia, sitting by designation.
23a
APPENDIX C
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 89-6029, 89-6269
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
Florida Keys Citizen Coalition, Florida Wildlife Federa-
tion, Environmental Defense Fund, Sierra Club, Na-
tional Wildlife Federation, Wilderness Society, Na-
tional Parks & Conservation Association and Defenders
of Wildlife,
Plaintiffs-Intervenors-A ppellees,
FLORIDA AUDUBON SOCIETY, et al.,
Plaintiffs-Intervenors,
Vv.
SouTH FLORIDA WATER MANAGEMENT DISTRICT, JOHN
R. WooprasKA and FLORIDA DEPARTMENT OF EN-
VIRONMENTAL REGULATION,
Defendants-A ppellees,
DALE TWACHTMAN,
Defendants,
City OF BELLE GLADE,
Defendant-Intervenor,
WESTERN PALM BEACH COUNTY FARM BuREAU, INC.,
FLORIDA FRUIT AND VEGETABLE ASSOCIATION, FLOR-
IDA SUGAR CANE LEAGUE, INC., ROTH FarMs, INC.,
K.W.B. FARMS AND BEARDSLEY FARMS, INC.,
Movants-A ppellants.
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
V.
24a
SOUTH FLORIDA WATER MANAGEMENT DisTRICT, et al.,
Defendants,
WESTERN PALM BEACH COUNTY FARM BUREAU,
INC., et al.,
ha Appellants.
Appeals from the United States District Court
for the Southern District of Florida
Jan. 28, 1991
Before HATCHETT and ANDERSON, Circuit Judges,
and ESCHBACH *, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge:
This is an appeal by three farm corporations and three
agricultural organizations (together, the “Farm Interests” )
of the District Court’s order denying them intervention
under Fed.R.Civ.P. 24(a) and (b). The Farm Interests,
or their members, rely on the defendant South Florida
Water Management District (the “Water District”) to pro-
vide irrigation and flood control services for their crops.
The Farm Interests claim to be proper parties to this
suit because the plaintiff United States seeks to restrict
the Water District’s operations. The United States claims
that the Water District releases water polluted with farm
runoff and that this pollution is strangling the mosaic of
plants and animals that comprise the Loxahatchee Na-
tional Wildlife Refuge and Everglades National Park.
We hold that the Farm Interests have the right to inter-
vene in this case. This right results solely by reason of
the issues raised in Count I of the United States’ Amended
Complaint,’ which asks the District Court to translate
* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
1 The docket sheet for this case indicates that the United States
filed a Second Amended Complaint on February 8, 1990, which
25a
the state’s narrative water quality standards into numeric
criteria. The Farm Interests derive no right to intervene,
however, by reason of the issues raised in Counts II, Hl,
and IV, which assert that the Water District is violating
state permitting requirements and has breached two con-
tracts with the United States. On remand, the District
Court may, if it finds appropriate, restrict the Farm In-
terests’ participation in this case to the issues relating to
Count I, or may bifurcate the proceedings between Count
I and the other counts to promote judicial efficiency.
Jurisdiction
This Court has provisional jurisdiction under the
“anomalous rule [that] has evolved in the federal appellate
courts concerning the appealability . . . of an order deny-
ing intervention.” Weiser v. White, 505 F.2d 912, 916
(Sth Cir.1975).? Under this rule, “[ilf the district court
was correct in denying the motion to intervene, this
court’s jurisdiction evaporates and we must dismiss the
appeal for want of jurisdiction. If the district court erred,
we retain jurisdiction and must reverse.” Federal Trade
Comm'n v. American Legal Distributors, 890 F.2d 363,
364 (11th Cir.1989). The rule is “anomalous” because
of the “seemingly inconsistent approach of reaching the
merits to determine jurisdiction.” Weiser, 505 F.2d at
917. Not surprisingly, this Court has noted “criticism of
this rule, advocating a simple review of the denial of in-
tervention as a final order.” United States v. Jefferson
County, 720 F.2d 1511, 1515 n.12 (11th Cir.1983).
Under either approach, we proceed to the merits.
apparently differs from the Amended Complaint only in stating
that the United States has complied with certain notice require-
ments that apply to Counts I and II. Because the Second Amended
Complaint was not included in the record on appeal, we address
the Amended Complaint, as the parties did in their briefs.
2In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), this Court adopted as precedent decisions of the
former Fifth Circuit rendered prior to October 1, 1981.
26a
Intervention by Right
Under Fed.R.Civ.P. 24(a), a nonparty may intervene
by right if:
the applicant claims an interest in the property or
transaction which is the subject of the action and
the applicant is so situated that the disposition of
the action may as a practical matter impair or im-
pede the applicant’s ability to protect that interest,
unless the applicant’s interest is adequately repre-
sented by existing parties.
To support intervention, a nonparty’s interest must be
“direct, substantial, [and] legally protectable.” Chiles v.
Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989),
quoting Athens Lumber Co. v. Federal Election Comm'n,
690 F.2d 1364, 1366 (11th Cir.1982), quoting Howse
v. S/V “Canada Goose I”, 641 F.2d 317, 320-21 (Sth
Cir. 1981).* A nonparty may have a sufficient interest
for some issues in a case but not others, and the court
may limit intervention accordingly. See Howard v. Mc-
Lucas, 782 F.2d 956, 960-61 (11th Cir.1986) (restrict-
ing intervenors to participation in the single, remedial
issue for which they had “standing”).* Also, the court
*The requirement of a direct, substantial, legally protectable
interest makes practical sense and reinforces the other criteria
under Rule 24(a). A nonparty with an indirect or insubstantial
interest by definition has little at stake in the proceedings and so
cannot suffer significant harm from the outcome. Further, a non-
party with a tenuous interest in the proceedings will have little
incentive to litigate fully, a point that reinforces the Rule’s cri-
terion of adequate representation. Similarly, the requirement that
the nonparty assert an interest that is legally protectable reinforces
the Rule’s criterion of impairment of interest. Denial of interven-
tion cannot impair a nonparty’s ability to protect its interests if
that nonparty would have no legal protection for those interests in
any event.
* See also Harris v. Pernsley, 820 F.2d 592, 599 (8rd Cir.)
(stating that an applicant for intervention “may have a sufficient
interest to intervene as to certain issues in an action without
having an interest in the litigation as a whole”), cert. den. 484
U.S. 947, 108 S.Ct. 386, 98 L.Ed.2d 368 (1987) ; United States v.
eee men ar etree en net a ten
27a
may order a separate trial of claims or issues subject to
intervention when “conducive to expedition and econ-
omy.” See Fed.R.Civ.P. 42(b). In the present case, the
main issue is whether and to what extent the Farm Inter-
ests have a legally protectable interest at stake. This, in
turn, depends on the specific claims that the United States
makes in its Amended Complaint.
Count 1: Violation of Narrative State Law Standards
In Count I of its Amended Complaint, the United
States asks the District Court to translate narrative state
water quality standards into numeric limits. Specifically,
the United States alleges that the Water District is vi0-
lating the Florida Surface Water Improvement and Man-
agement Act of 1987 (the “SWIM Act”), which pro-
vides that the Water District’s operations must not “ad-
versely affect indigenous vegetation communities or wild-
life.” Fla.Stat. § 373.4595(2)(a)(1); see also Fila.
American Telephone & Telegraph Co., 642 F.2d 1285, 1291 (D.C.
Cir.1980) (discussing with approval the rule that “intervention for
individual issues . . . [may be] appropriate to protect particular
interests, with the limited nature of the intervenor’s interest de-
termining the scope of the intervention that should be allowed”) ;
Bradley v. Milliken, 620 F.2d 1141, 1142-3 (6th Cir.1980) (ordering
intervention “for the limited purpose of presenting evidence” on a
single issue, but restricting participation on other issues to the
extent that the district court would choose to allow the applicants
to serve as amici); cf. Southern v. Plumb Tools, 696 F.2d 1321,
1821-1323 (11th Cir.1983) (per curiam) (holding that a district
court’s failure to restrict the participation of an intervenor in
certain issues at trial was reversible error due to the state evi-
dentiary rules that applied). Restricting intervention to the par-
ticular issues for which the proposed intervenor has a sufficient
interest accords with standard party practice. Defendants, after
all, are often named only for particular counts in multi-party liti-
gation, and their right to participate in the case extends only to
issues relating to the counts for which they are named parties.
Defendant-intervenors like the Farm Interests may similarly have
an interest only in particular counts, and the scope of their partici-
pation in the case should correspond with the scope of that interest.
‘28a
Admin. Code § 17-302.560(19) (barring acts that create
“an imbalance in natural populations of aquatic flora or
fauna”).° This narrative standard is unspecific about
exactly what concentrations of nitrogen and phosphorous
—the particular nutrients at issue in this case—are per-
misible. But as counsel for the United States stated in
oral argument, an order setting maximum concentrations
of nutrients is the remedy that the United States seeks.°
If it finds for the United States on Count I and grants the
relief requested, the District Court will in effect translate
the narrative water quality standards in the SWIM Act
into numeric limits.
5 In a footnote to its brief, the United States also alleges a viola-
tion of the state’s antidegradation rule, which prohibits reduction
in the water quality of any “Outstanding Florida Waters” below
the quality that existed in 1979. See Fla.Admin.Code § 17-3.041(1),
(8). This antidegradation rule provides, however, that it “shall be
implemented through the [state’s] permitting process.” Fla.Admin.
Code § 17.3041(7). The state’s alleged failure to enforce its per-
mitting requirements is the subject of Count II of the Amended
Complaint, and the antidegradation rule is better seen as an issue
relating to that count than to Count I.
6In oral argument, the United States stated:
The reason that... [the SWIM Act states] a narrative stand-
ard rather than a numerical standard, is because the impact
of nutrients is dependent on the ecosystem. We are not seek-
ing in this lawsuit one numerical standard for the State of
Florida. The only thing that we are concerned with in this
lawsuit is a numerical standard for the vegetation in the Park
and the Refuge, and I don’t believe from the evidence we have
right now that we will be seeking the same numerical standard
for the Park and the Refuge.
(emphasis added). In fairness to the District Court, we note that
the United States claimed in that forum that it was not seeking
a numeric standard:
In regard to the draft SWIM Plan, I believe that this is some-
thing in a separate proceeding. ... The business of putting
a numerical limit on total phosphorous, that is within that
separate process, putting a practical standard .. . on a narra-
tive written standard. That is simply a practical limit. But
29a
The problem is that the SWIM Act directs the Water
District to conduct administrative proceedings towards
this same end—translating the Act’s narrative standards
into specific numeric limits. The Water District has issued
a draft “Surface Water Improvement and Management
Plan for the Everglades,” v. 1 and 2 (August 9, 1989)
(the “draft SWIM Plan”) which proposes numeric stand-
ards for implementing the SWIM Act’s requirements, and
the Water District is currently working on a final version.
The Act delegates specific authority to the Water District
to develop the SWIM Plan. See Fla.Stat. § 373.451(5)
(stating, “The Legislature finds that surface water prob-
lems can be corrected . . . through plans and programs
... that are planned, designed, and implemented by the
water management districts”). The broad narrative lan-
guage of the SWIM Act confirms the grant of adminis-
trative discretion to define what the Act’s standards mean.
Cf. Chevron v. Natural Resources Defense Council, 467
U.S. 837, 843-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d
694 (1984) (discussing the implicit grant of administra-
tive discretion in legislative use of broad statutory lan-
guage). In short, the United States in Count I asks the
District Court to partially pre-empt the administrative de-
velopment of the SWIM Plan by specifying the numeric
standards that apply under the SWIM Act.
The Farm Interests have a legally protectable right
under the SWIM Act to participate and comment in the
administrative development of the final SWIM Plan, and
to pursue an administrative appeal. See Fla.Admin.Code
§ 17-43.035(2) (requiring public hearing in the prepara-
tion of the SWIM Act); Fla.Stat. § 373.114 (providing
a right to administrative appeal which applies to the final
SWIM Plan). Besides being legally protectable, the Farm
Interests’ right is directly and substantially related to
that is not presently in this litigation. We are not asking for
a number.
Transcript of Hearing held on November 1, 1989, pp. 30-31 (em-
phasis added).
30a
Count I. The right is direct because it is a right to par-
ticipate in the very matter being decided—-what numeric
standards should apply under the SWIM Act to the water
that the Water District releases. And the right is substan-
tial because it is the Farm Interests’ only means of de-
fending their interest in the Water District’s services.
The District Court’s decision in this case may impair
the Farm Interests’ ability to protect their right to par-
ticipate in the administrative proceedings. If the District
Court issues an injunction setting numeric water quality
limits, that injunction will of course bind the Water Dis-
trict. The Water District could not deviate from the
terms of the District Court’s order by its own initiative.
The District Court’s decision could thus erase the Farm
Interests’ legally protectable right to participate in the
administrative development of the numeric standards that
apply under state law.’
Absent intervention in this case, some avenues of re-
lief would remain open to the Farm Interests through
subsequent litigation, because they cannot be bound to a
decision to which they are neither party nor privy. See
In re Birmingham Reverse Discrimination Employment
Litigation, 833 F.2d 1492, 1498 (11th Cir.1987) (hold-
ing that one who is not a privy or party to litigation may
not, as a matter of due process, be bound by the deci-
sion), affirmed sub nom Martin v. Wilks, 490 U.S. 755,
7 Viewed from a different angle, Count I of the Complaint seeks
to move a state administrative task—development of standards for
implementing the broad commands of the SWIM Act—to federal
court. If the state is not doing its job and statutory authority
supports federal proceedinjs, this move is legally proper. The
problem is that various groups have the right to participate in the
decision in the administrative forum. If their rights of partici-
pation are not to be lost, the administrative participants must
receive a corresponding right to participate in the judicial pro-
ceedings. So too, the federal court needs to hear what these ad-
ministrative participants have to say so that it can make an in-
formed decision.
3la
109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).* In this re-
gard, the Farm Interests would remain free to challenge
the final SWIM Plan in state court. See Fla.Stat. § 120.68
(providing for judicial review of final administrative ac-
tion in state courts). Even so, a subsequent court would
likely be reluctant, as a practical matter, to issue a deci-
sion that conflicts with the District Court’s order in the
present case. This reluctance may entail something more
than the usual respect for prior decisions under the doc-
trine of stare decisis. The effect of the District Court's
decision on subsequent courts thus provides a further
basis for concluding that the Farm Interests’ have shown
a potential impairment of their rights sufficient to estab-
lish intervention. See Chiles v. Thornburgh, 865 F.2d
1197, 1214 (11th Cir.1989) (stating that the potential
stare decisis effect of a judgment may, by itself, support
intervention). In short, the Farm Interests have a direct,
substantial, legally protectable interest in Count I, and
this case may impair their ability to defend that interest.
8 In his dissent to the Eleventh Circuit’s opinion, Judge Anderson
“agree[d] with the .. . court that the[] plaintiffs were not parties
to the prior litigation which resulted in the consent decree [at
issue], and... [were] not bound by the consent decree and should
be free on remand to... test its validity.” 833 F.2d at 1503.
He concluded, however, that certain practical consequences could
still follow from the consent decree—specifically, that a party to
the decree could rely on it and use compliance with its terms as
evidence of nondiscriminatory intent in the subsequent suit by the
nonparties. Id., at 1502. The Supreme Court’s affirmance did not
take any position on this issue. See 490 U.S. 761, 109 S.Ct. at
2184 n. 1.
As Judge Anderson suggested in oral argument in the present
case, the Water District can protect itself against the risk of
multiple lawsuits by using Fed.R.Civ.P. 19 and 23 to join necessary
parties or to certify a defendant class for any issues (in particular,
those raised in Count I) where this risk is present. “The parties
to a lawsuit presumably know better than anyone else the nature
and the scope of the relief sought in the action... . It makes
sense therefore to place on them a burden of bringing in addi-
tional parties where such a step is indicated.” Id., 490 U.S. at
765, 109 S.Ct. at 2186.
32a
The final question is whether the Farm Interests’ are
adequately represented by the Water District. The Farm
Interests’ position is at odds with that of the Water Dis-
trict in key respects. For example, the draft SWIM Plan
that the Water District has issued specifies a phosphorous
concentration of 0.03 ppm for water released to the Ever-
glades system. See Draft Swim Plan, v. Ul, p. 117. The
Farm Interests do not accept this figure, and point to the
statement by the Water District before the District Court
that even a less restrictive standard of 0.05 ppm of phos-
phorous would entail “draconian consequences” for the
farms using the water. Transcript of Hearing held on
March 7, 1989, p. 11. In these circumstances, the Farm
Interests should not be required to rely on the Water
District to represent them. See Chiles v. Thornburgh,
865 F.2d 1197, 1214 (11th Cir.1989) (holding that the
“possibility” that a party would not sufficiently “empha-
size” the position of intervenors meant that adequate rep-
resentation was not present).
In sum, the Farm Interests have a direct, substantial,
legally protectable interest in participating in the develop-
ment of numeric water quality standards under state law.
Their ability to protect this interest will be impaired if
the District Court issues an injunction specifying numeric
standards for the Water District because that injunction
will bind the Water District in its administrative proceed-
ings, and will have at least a stare decisis effect in sub-
sequent litigation. Finally, the Water District may not
adequately represent the Farm Interests because the two
differ on the numeric standard that applies. The Farm
Interests thus meet the criteria for intervention by right
by reason of the issues raised in Count I. On remand,
the District Court may choose to condition their interven-
tion in this case on such terms as will be consistent with
the fair, prompt conduct of this litigation.’
*“An intervention of right . . . may be subject to appropriate
conditions or restrictions responsive among other things to the
requirements of efficient conduct of proceedings.” Fed.R.Civ.P.
33a
Counts IT, III, and IV:
Failure to Obtain State Permits and Breach of Contract
In Count II of its Amended Complaint, the United
States contends that the Water District has violated Flor-
ida law by operating pumps, water control structures, and
canals without required permits. In Counts IIf and IV,
the United States contends that the Water District has
breached a February 10, 1984 contract between it and
the Army Corps of Engineers, and a June 8, 1951 con-
tract between it and the United States. Again, the initial
question is whether the Farm Interests have a legally pro-
tectable interest in the United States’ contentions. Be-
cause their interests are not legally protectable, the Farm
Interests derive no right to intervene by reason of the
issues raised in these counts.
The Farm Interests have asserted no property or other
legal right in the Water District’s services directly. In-
stead the Farm Interests say that their economic interests
depend on those services. This is not enough.
“By requiring that the applicant’s interest be . . .
‘legally protectable,’ it is plain that something more
than an economic interest is necessary. What is re-
quired is that the interest be one which the substan-
tive law recognizes as belonging to or being owned
by the applicant.”
24(a) advisory committee’s notes to 1966 amendments. To men-
tion a few options, the District Court may find it appropriate to
(1) allow the other parties to produce documents in a single set
for the Farm Interests to share and copy among themselves, (2)
require the organizational Farm Interests to respond to interroga-
tories regarding each of their members who claims an interest
in the proceedings, and/or (3) limit the Farm Interests to a few
or a single counsel, On this last option, see, for example, Sage-
brush Rebellion, Inc. v. Watt, 713 F.2d 525, 526 and n. 2 (9th Cir.
1983) (stating, “Throughout these proceedings intervenors have
. . . spoken with one voice. Nothing in this opinion should be
interpreted as approving participation by the intervenors on any
other basis”).
34a
New Orleans Public Service, Inc., v. United Gas Pipe
Line Co., 732 F.2d 452, 464 (Sth Cir.) (en banc) (em-
phasis original), cert. denied, 469 U.S. 1019, 105 S.Ct.
434, 83 L.Ed.2d 360 (1984); see Getty Oil Co. v. De-
partment of Energy, 865 F.2d 270, 276 (Temp.Em.Ct.
App.1988) (stating, “An economic interest . . . alone is
insufficient to warrant intervention”) (citation omitted).
This does not mean that the Farm Interests’ economic
livelihood is unimportant. It only means that the Farm
Interests must show that the present proceedings threaten
some substantive legal protection for their livelihood to
support intervention by right.
A comparison may help make this point clear. The
Farm Interests have referred the Court to the Eighth Cir-
cuit’s decision in Ford Motor Co. v. Bisanz Bros., Inc.,
249 F.2d 22 (8th Cir.1957). In Ford, the court of ap-
peals held that Ford Motor Company could intervene by
right in a nuisance action by a neighboring landowner
against the railroad that served the Ford factory. We
believe that Ford was rightly decided because, although
Ford did not own the railroad, the railroad apparently
could not have suspended service to Ford without an
order from the Interstate Commerce Commission, after
notice to Ford and a hearing in which Ford would have
had the right to participate. Id., at 23, 24. Thus, Ford
claimed a “right to have the railroad furnish service” and
the railroad had “the obligation” to provide those services.
Id., at 28 (emphasis added). If, on the other hand, the
railroad had been free to suspend its service, Ford would
have had no legaily protectable interest at stake, no mat-
ter how much Ford’s economic interests may have de-
pended on that service. The holding in Ford thus sup-
ports the rule that a legal interest in the proceedings is
necessary to support intervention.
Again, the Farm Interests have not asserted any legal
right in the Water District’s services—however much their
economic interests may depend on those services. Nor
have the Farm interests claimed any right to participate
35a
in the state’s decision on the permit requirements that ap-
ply to the Water District, which is the subject of Count II,
or any right as a third-party beneficiary under the 1984
contract, which is the subject of Count III. The Farm
Interests do make a passing claim to being third-party
beneficiaries under the 1951 contract in Count IV, but
this is baseless.- The 1951 contract is governed by federal
law, which allows identifiable third parties to assert direct
obligations to them under a contract. See, e.g., Berberich
v. United States, 5 Cl.Ct. 652, 655-56 ( 1984), aff'd with-
out opinion, 770 F.2d 179 (Fed.Cir.1985). The Farm
Interests fail to point to any specific language in the 1951
contract that confers rights on them. Instead they simply
rely on the contract’s broad purposes of flood control and
environmental protection to support their claim. These
purposes extend to the Farm Interests, but they also ex-
tend to nearly everyone else in central and southern
Florida. The Farm Interests are not third-party bene-
ficiaries of the 1951 contract.
In short, the Farm Interests have no legally protectable
interest at stake in the issues raised in Counts II, Il, or
IV of the Amended Complaint. With no legally protect-
able interest, the Farm Interests derive no right to in-
tervene from the issues raised in these counts.’® As dis-
cussed above, the District Court may prevent delay in the
resolution of these counts by placing appropriate condi-
tions on the Farm Interests’ intervention in this case, or
10 There is some dispute as to whether the United States has a
fifth count for common law nuisance lurking in its Amended Com-
plaint. The United States contends that the “delivery of nutrient-
loaded waters [by the Water District] constitutes a nuisance under
Florida law” and asks for an injunction to “abate the nuisance.”
Amended Complaint, {[] 48, 68. The United States clarified in oral
argument, however, that it is referring to Fla.Stat. § 373.433, which
declares acts in violation of the state’s permit and water quality
requirements to be a statutory nuisance. The nuisance claim, then,
does not add a substantive count to the United States’ other claims
arising under state law.
36a
by ordering separate trial and discovery of one or more
of these counts.”
Permissive Intervention
The Farm Interests also ask this Court to review the
District Court’s denial of permissive intervention under
Fed.R.Civ.P. 24(b). We review for abuse of discretion.
See Chiles v. Thornburgh, 865 F.2d 1197, 1215 (11th
Cir.1989). The District Court concluded that permissive
intervention would “delay and prejudice the rights of the
original parties” and “make this case even more unman-
ageable than it already appears to be” by adding wit-
nesses and collateral issues. District Court’s Order on
Motions to Intervene and Rule 19 Joinder, p. 9. We find
no abuse of discretion in this decision. In a similar con-
text, Judge Tuttle recently wrote for this Court:
intervention [in this case] . . . would severely pro-
tract the litigation. Although we express no opinion
as to the merits of plaintiff's claims, an action which
seeks to preserve the environment from further de-
terioration deserves refuge from .. . undue delay.
Manasota-88, Inc. v. Tidwell, 896 F.2d 1318, 1323 (11th
Cir.1990) (emphasis added). In the present case, the
District Court is correct to use its full discretionary
powers—including its discretion to deny permissive in-
tervention—to prevent delay that may lead to further
deterioration of the Everglades.
11 We note that the 1984 contract that is the subject of Count IIT
may be particularly appropriate for separate trial and discovery
because it already lists numeric water quality standards for phos-
phorous, nitrogen, and other constituents. For this reason, the
determination of whether the Water District has breached this
contract may be straightforward. A separate trial and discovery
on this count may thus allow the District Court to provide prompt,
initial relief, if it turns out that the United States can prove its
allegations.
37a
Conclusion
The Farm Interests ‘neet the criteria for intervention
by right by reason of the issues raised in Count I of the
Amended Complaint. The order denying intervention is
reversed and the case is remanded to the District Court
to allow intervention subject to such conditions as the
District Court finds appropriate consistent with this
opinion.
Reversed and Remanded.
38a
HATCHETT, Circuit Judge, dissenting in part:
I dissent from that portion of the majority opinion
which allows the Farm Interests to intervene as a matter
of right. The majority’s reversal of the district court on
Count I is for two reasons: (1) “the district court’s de-
cision in this case may impair the Farm Interest ability
to protect their right to participate in the administrative
proceedings. If the district court issues an injunction set-
ting numeric water quality limits, that injunction will of
course bind the water district”; and (2) “viewed from a
different angle, Count I of the complaint seeks to move
a state administrative task—development of standards for
implementing broad commands of the SWIM Act—to
federal court.”
The majority’s reliance on these two reasons indicates
that intervention of right is being provided to the Farm
Interest because the majority has imagined “horribles.”
The majority recognizes that Count I of the complaint
seeks to move a state administrative task to federal court,
but concludes that an experienced district court judge
does not or will not recognize the shift from Florida ad-
ministrative proceedings to federal court litigation. At
this early stage of the proceedings, I would affirm the
district court and allow it to continue sharpening the
issues mindful of the affect a numeric level determination
would have on the Farm Interests’ administrative reme-
dies. Surely, if the time arises where the Farm Interests’
remedies will be affected, the district court will take steps
to protect those interests.
Of course, we must not forget that the courts of Flor-
ida, the courts of the United States, and Florida’s admin-
istrative agencies, are open and capable of addressing
issues framed by the Farm Interests.
39a
APPENDIX D
[Filed Mar. 22, 1991]
IN THE UNITED STATES COURT OF APPEALS
~ FOR THE ELEVENTH CIRCUIT
Nos. 89-6029 and 89-6269
UNITED STATES OF AMERICA, et all,
Plaintiffs-A ppellees
versus
SOUTH FLORIDA WATER MANAGEMENT DistTRICT, et al,
Defendants-A ppellees
WESTERN PALM BEACH COUNTY FARM
BUREAU, INC., ef al,
Movants-A ppellants
Appeal from the United States District Court
for the Southern District of Florida
BEFORE: HATCHETT and ANDERSON, Circuit
Judges, and ESCHBACH *, Senior Circuit
Judge.
ORDER:
The three farm corporations and three agricultural or-
ganizations that have intervened in this case (together,
the “Farm Interests”) have filed a “Suggestion and Motion
as to Lack of Jurisdiction.” We decline to consider this
motion. As we held in our opinion in the underlying
appeal, the Farm Interests may intervene in this case to
* Honorable Jesse E. Eschbach, Senior U.S. Circuit J udge for the
Seventh Circuit, sitting by designation.
40a
protect their right to participate in the development of
numeric limits implementing the state’s narrative water
quality standards. The jurisdictional issues that the Farm
Interests raise in their motion are only indirectly related
to the protection of this right. Further, the Farm Interests
are adequately represented on the jurisdictional issues by
the defendants South Florida Water District and Florida
Department of Environmental Regulation, which have
already raised many of these issues with the District
Court. Finally, even if the Farm Interests were proper
parties to raise the jurisdictional issues in their motion,
it would be procedurally inappropriate for us to extend
our limited appellate review under the anomolous rule to
decide issues not raised in the parties’ briefs or in this
Court’s published opinion.
The Farm Interests may still seek to present their
jurisdictional motion to the District Court. If they choose
this step, they will be well advised to ask the District
Court’s permission first. As we have stated, the District
Court may condition the Farm Interests’ intervention in
this case on such terms as will be consistent with the fair,
prompt conduct of this litigation. This authority allows
the District Court to dispose in summary fashion (as we
have done here) of any motions that the Farm Interests
may file beyond the scope of their right to participate in
these proceedings.
Ala
APPENDIX E >
[Filed Aug. 22, 1991]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 88-1886-CIV-HOEVELER
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
vs.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT; TIMER
E. Powers, Interim Executive Director, South Florida
Water Management District; FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION; and CaRoL M.
BROWNER, Secretary, Florida Department of Environ-
mental Regulation, et al.,
Defendants.
ORDER GRANTING UNITED STATES’ MOTION TO
STRIKE THE SUGGESTION OF LACK OF
ARTICLE III JURISDICTION BY INTERVENOR
~ DEFENDANTS FARM BUREAU,
ROTH FARMS, K.W.B. FARMS
THIS CAUSE is before the Court on the United States’
Motion, pursuant to Fed. R. Civ. P. 12(f), to Strike the
“Suggestion of Lack of Article III Jurisdiction” filed by
Intervenor Defendants Farm Bureau, Roth Farms, and
K.W.B. Farms (“Farm Bureau”).
In its opinion granting the Farm Bureau intervention
as to Count I of the United States’ Amended Complaint,
the Eleventh Circuit limited intervention to the develop-
ment of numeric water quality standards. United States
42a
v. South Florida Water management District, 922 F.2d
704 (11th Cir. 1991). Despite this limited grant of inter-
vention, the Farm Bureau subsequently filed with the
Eleventh Circuit a “Suggestion and Motion as to Lack
of Federal Jurisdiction,” in which the Farm Bureau re-
quested dismissal of the entire case. In denying this
motion, the Eleventh Circuit stated:
As we have held in our opinion in the underlying
appeal, the Farm Interests may intervene in this case
to protect their right to participate in the develop-
ment of numeric limits implementing the state’s nar-
rative water quality standards. The jurisdictional
issues that the Farm Interests raise in their motion
are ofily indirectly related to the protection of this
right. Further, the Farm Interests are adequately
represented by the defendants South Florida Water
District and Florida Department of Environmental
Regulation, which have already raised many of these
issues with the District Court.
The Farm Interests may still seek to present their
jurisdictional motion to the District Court. If they
choose this step, they will be well advised to ask the
District Court’s permission first. As we have stated,
the District Court may condition the Farm Interests’
intervention in this case on such terms as will be
consistent with the fair, prompt conduct of this liti-
gation. This authority allows the District Court to
dispose in summary fashion (as we have done here)
of any motions that the Farms Interests may file
beyond the scope of their right to participate in these
proceedings.
United States v. South Florida Water Management Dis-
trict, (11th Cir. March 22, 1991).
The Suggestion filed with this Court, even more so
than that presented to the Eleventh Circuit, constitutes a
broad attack on the Court’s jurisdiction over the entire
A3a
underlying proceeding. As such, it greatly exceeds the
limited scope of intervention granted by the Eleventh
Circuit. This Court’s Order of July 9, 1991, implement-
ing the mandate of the Eleventh Circuit should be con-
strued by all parties to this case as granting the Farm
Interests intervention no broader in scope than that recog-
nized by the court of appeals as necessary to protect the
Farm Interests’ right to participate in the development
of numeric water quality standards. Accordingly, it is
ORDERED AND ADJUDGED that the motion to
strike the Farm Bureau’s Suggestion of Lack of Article
III Jurisdiction is GRANTED.
DONE AND ORDERED in chambers at Miami, Flor-
ida this 22nd day of August, 1991.
/s/ William M. Hoeveler
WILLIAM M. HoEVELER
United States District Judge
cc: All counsel of record
|
44a
APPENDIX F
[Filed Feb. 24, 1992]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No: 88-1886-CIV-HOEVELER
UNITED STATES OF AMERICA, et al.,
Plaintiff,
vs.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT; TILFORD
CREEL, Executive Director, South Florida Water Man-
agement District; FLORIDA DEPARTMENT OF ENVIRON-
MENTAL REGULATION; and CAROL M. BROWNER, Sec-
retary, Florida Department of Environmental Regula-
tion, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
ENTERING SETTLEMENT AGREEMENT
AS CONSENT DECREE
The Court on this day approves and enters as a con-
sent decree the settlement agreement (“Agreement”) exe-
cuted by plaintiff United States and defendants South
Florida Water Management District (“District”) and
the Florida Department of Environmental Regulation
(“DER”).
The Agreement resolves all claims by the original par-
ties in a complex environmental lawsuit filed more than
three years ago by the United States against the District
1 As used in this Order, the term “state agencies” refers to the
District and DER.
45a
and DER for alleged contamination of the Loxahatchee
National Wildlife Refuge (the “Refuge” ) and the Ever-
glades National Park (the “Park”) caused by 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 environ-
mental groups permitted to intervene in this action and
opposed by defendant-intervenors Cities of Belle Glade
and Clewiston (the “Cities”) and several agricultural or-
ganizations (“Farm Interests”) ( collectively referred to as
“defendant-intervenors”). As set forth below, the Court
finds that the objections to the Agreement raised by de-
fendant-intervenors, with one exception, are cither satis-
fied by this Order or are without merit. The exception to
which the Court refers is the objection based on the Na-
tional 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 cOm-
pliance with NEPA simultaneous with, and not as a con-
dition to, implementation of the Agreement.
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 agricul-
tural discharges from the Everglades Agricultural Area
46a
(“EAA”). The STAs, to be constructed by the Dis-
trict 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 agricul-
tural 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.
In addition to these remedial measures, the Agreement
establishes a research and monitoring program, a techni-
cal oversight committee to supervise the research and
monitoring, and @ schedule for the completion of admin-
istrative actions consistent with the terms of the Agree-
ment.
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 Pro-
tection Act requires the District to establish:
—strategies for developing programs and projects
designed to bring facilities into compliance with ap-
plicable water quality standards and restore the
47a
Everglades hydroperiod, including the identification
and acquisition of lands for the purpose of water
treatment or implementation of stormwater manage-
ment systems . . . and the development of a per-
mitting 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
discharge 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.
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 Admin-
istrative Procedures Act (“APA”), Fla. Stat. § 120.50
(1991) et seq., which affords affected parties the oppor-
tunity to challenge proposed agency action.
48a
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 evi-
dence 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 dis-
covery 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 pur-
pose 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 ac-
tion. See Heifetz v. Department of Business Regulation,
475 So.2d 1277, 1281 (Fla. Ist DCA 1985); Capeletti
Bros. v. State Dep’t of Gen. Servs., 432 So.2d 1359, 1363
(Fla. lst DCA 1983). on
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 evi-
dence and may not reweigh evidence, rejudge the credi-
bility 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. Ist
DCA 1977). If the agency determines that the officer’s
findings of fact are not supported by the record, the
49a
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 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 scru-
tiny. To the extent, then, that the agencies’ implementa-
tion 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 par-
ticipate, 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 agen-
cies to a particular course of regulatory action, their ad-
ministrative rights are rendered meaningless because the
Agreement will have predetermined the final agency ac-
tion. 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 pre-
liminarily.”). If, in fact, the Agreement is a fait accompli,
then an administrative hearing is an exercise in futility.
50a
In response to this concern, the settling parties have
submitted a Joint Status Report which makes clear that
the 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 incon-
sistent 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 con-
sistent with the terms of the Agreement, and if the set-
tling parties are unable to agree to a modification of the
Agreement after resort to dispute resolution or upon a
claim of force majeure,” 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 preserving this Court’s ultimate jurisdic-
tion over this lawsuit.
As indicated at the December 4, 1991, status confer-
ence, the Court proposes to address defendant-intervenors’
concerns with regard ot the APA by incorporating in this
2The 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.”
aE APTN PARE SE Re ee Mere
Sla
Order, and making part of the Agreement, terminology
which insures that the administrative hearing is meaning-
ful. To that end, the following language, taken in large
part from the Joint Status Report and the settling par-
ties’ submission of proposed language, is hereby made
part of the Agreement *:
1. The Agreement does not predetermine the out-
come of any state proceedings required under Chap-
ter 120, Florida Statutes. Accordingly, any provi-
sion of the Agreement that under Florida law must
be implemented by the state agencies through admin-
istrative 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 re-
quired by law.
2. Nothing in the Agreement is intended or oper-
ates 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 evi-
dence warrants a conclusion at odds with the Agree-
ment. Specifically, the Agreement does not require
the agencies to favor the terms of the Agreement
over a hearing officer’s contrary findings of fact sup-
ported by competent, substantial evidence.
*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.
52a
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.
Il. 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 obliga-
tions on defendant-intervenors and undermines their right-
ful interests; (2) the Court lacks authority to enter a
consent decree based on state law claims; (3) the Attor-
ney 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 cer-
tain actions in furtherance of the Agreement’s objectives;
(5) the Agreement violates the Flood Control Act; and
(6) the remedial measures contemplated by the Agree-
ment constitute “major federal action” under NEPA,
necessitating preparation of an environmental impact
statement. These arguments are addressed, in turn,
below.*
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 (FFPA),
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.
53a
A. Impact on Nonconsenting Parties
Defendant-intervenors contend that the Agreement im-
permissibly 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 adop-
tion 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 Agree-
ment, as clarified above. The Agreement does not re-
quire anything of defendant-intervenors nor does it ac-
complish 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 Agree-
ment accomplishes. As noted earlier, any duties or obli-
gations imposed upon defendant-intervenors will come
about only as a result of an administrative process in
which they are allowed to participate, 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.
54a
Inexplicably, defendant-intervenors fail to recognize the
presence of the federal contract claims in Counts Ili 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. Seckin-
ger, 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 de-
cree resolving those claims as a result of its subject mat-
ter jurisdiction under 28 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 en-
force. 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 adjudi-
cate 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 in-
apposite. In that case, the Seventh Circuit found that an
overriding federal interest was necessary to justify a con-
sent decree which would have committed the defendant,
the Chicago Board of Election Commissions, to violate
55a
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.” /d.
at 342. Nothing about this holding suggests that a con-
sent decree cannot be based on state law claims.
In short, because this Court has subject matter juris-
diction over the United States’ claims, it has the power
to enforce the Agreement as a consent decree.
C. The Attorney General’s Authority to Maintain and
Settle This Action
The Farm Interests allege that the Attorney General
lacks authority to maintain, and therefore settle, this ac-
tion because, according to the Farm Interests, the au-
thority 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 in-
voked by the Farm Interests and the League, the follow-
ing examples are representative of the degree to which
their argument depends upon misstatement and misap-
plication 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 ‘re-
56a
tained’ by client agencies to represent federal interests
within the responsibility of the agency requesting help.”
Farm Interests’ brief, at 50:
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 profes-
sional service in attending the examination or making
the investigation, and the Attorney General shall pro-
vide 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. i
28 U.S.C. § 518. Conduct and argument of cases:
(a) Except when the Attorney General in a particu-
lar 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
57a
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 con-
spicuously ignored 28 U.S.C. §§516 and 519, which
reserve to the Attorney General, absent express congres-
sional directive to the contrary, the authority to conduct
and supervise all litigation to which the United States is
a party.°
In an attempt to demonstrate that the Attorney Gen-
eral’s authority to bring this action depends on the con-
currence 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 seg. 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 In-
terior has exclusive authority to determine whether legal
action should be taken to protect federal parks and
528 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 direc-
tion of the Attorney General.
28 U.S.C. § 519. Supervision of Litigation: Except as otherwise
authorized by law, the Attorney General shall supervise all litiga-
tion 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.
58a
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 fed-
eral 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 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’ con-
stitutional power over the proper administration and dis-
position 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 re-
source law, investigate any violation of an environ-
mental 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 actions to enforce federal environmental
laws. This action is based on state law and federal con-
tract 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
cea pew See Sega et aie Se a
Rasen?
a
é
B's)
59a
that “the [Department of Justice] does not have general
discretionary authority to file civil actions within the
purview of other federal agencies without the authoriza-
tion and concurrence of those agencies.” League's Mem-
orandum in Support of Motion for Court Inquiry, De-
cember 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. 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 ques-
tion, 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.” Jd.
at 1124 (citing 28 U.S.C. §§ 516-519). Solomon not
only lends no support to the League’s argument, but in-
deed 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 conclu-
sion that their challenge to the Attorney General’s au-
thority is without legal foundation, the issue of the con-
currence 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, En-
vironmental 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
60a
Interior Secretary Constance Harriman was quoted in a
press article dated 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 desig-
nated to meet the goal of responsible stewardship of our
public iands.” (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 Inter-
ests’ 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.
D. Infringement of Federal Agency Discretion
The Farm Interests claim that the Agreement illegally
infringes upon the discretionary authority of federal agen-
cies 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
a i ae Nal i |
6la |
of the Central and Southern Florida Project (the “Proj-
ect”) in support of the Agreement’s objectives.°
A similar argument was addressed in Gorsuch, 718
F.2d at 1127-29. In Gorsuch, a group of industries chal-
lenged a consent decree which established certain pro-
cedures 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
*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 conver-
sion of farmland to STAs, and funding for research and monitoring.
With respect to the phosphorous concentration levels and lim-
its 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 fund-
ing obligations on any federal agency. The only reference to fed-
eral 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 pro-
grams. This is an affirmation, not a restriction, of the Environ-
mental Protection Agency’s funding authority under the Clean
Water Act.
62a
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 dis-
tinguishable from cases in which agencies were ordered,
against their will, to take action otherwise committed to
their discretion. See, e.g., National Ass'n of Postal Su-
pervisors 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 dif-
ferential 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 de-
fensive position, the United States initiated and aggres-
sively pursued this action; any commitments it has made
are in furtherance of its own independently-sought objec-
tives. 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 in-
fringe 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 ap-
a,
63a
plicable 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 ap-
proval 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) (dis-
cussing the Corps’ discretionary authority to make post-
authorization modifications to projects which do not ma-
terially alter authorized project pi »oses); 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 € 15:
The Corps shall apply to DER for stormwater man-
agement 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 man-
agement permits for these existing structures may
iii a,
64a
include monitoring, adjustments to regulatory sched-
ules 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 Agree-
ment. 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 hypothet-
ical. More fundamentally, because 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 environ-
mental 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 con-
sequences of their actions. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (citation
Semana eS
PAE wack Besa
65a
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 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 (Sth Cir. Unit A, July 13, 1981)" (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 defi-
nition of “significant effects” on the environment. 40
C.F.R. § 1508.27(b)(1). While the courts and the CEO
have not clearly articulated the purpose served by re-
quiring an EIS for actions intended to benefit the environ-
ment, 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 fed-
eral action and, if so, whether implementation of the
Agreement is precluded pending preparation of an EIS.®
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 sub-
mission of consent or settlement agreements from its definition of
66a
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 discre-
tionary 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 fed-
eral funding is involved. See, e.g., Maryland Conserva-
tion Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042 (4th
Cir.1986) (county highway project involved federal ac-
tion 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, 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 (10th 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
“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.
=_ EE EE ee
67a
skin and blubber samples from killer whales was subject
to NEPA’s requirement of EIS or preliminary environ-
mental assessment). Other examples involve the provision
of federal services or non-financial assistance to a non-
federal project. See Sierra Club v. Hodel, 544 F.2d 1036,
1044 (9th Cir. 1976) (by entering into contract to sup-
ply 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 pres-
ence of a federal decision which in some manner “en-
ables” another to take action impacting upon the environ-
ment, 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 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 At-
lanta Coalition on Transp. Crisis, Inc. v. Atlanta Regional
Comm'n, 599 F.2d 1333, 1347 (Sth 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 Mail 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 re-
ceived 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
68a
Indiana’s receipt of early federal approval and financial
aid rendered its highway project federal in character,
despite its subsequent withdrawal from the funding pro-
gram, 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 engineer-
ing, and right of way acquisition for the project. Jd. at
489. Such extensive federal involvement was sufficient to
federalize the state’s highway, thus triggering the need
for an EIS.
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 meas-
ures 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.® 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
® Although the United States’ role in determining the size and
location of the STAs implicates NEPA’s requirements, the acquisi-
tion of land on which the STAs are to be constructed does not.
It is the STAs, 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) (hold-
ing NEPA inapplicable to site-acquisition activities).
pip Ps te a ea a
Aatvertuidhs Aaphs Maken
Aletta se pr nd Ne ae Seeder
Dea cathn tt,
ten
Bw eae
PY cle
PAN i Rama WR DS: ph lS RBS ato
69a
only had the power to influence the initial determination
of the specific standards and measures affecting the en-
vironment, 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 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 ad-
ministrative process.” 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 con-
dition 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 pro-
mote preservation and enhancement of the environment.
See 42 U.S.C. § 4331. Here, the United States is attempt-
ing to protect and save the Everglades from further de-
terioration, thus fulfilling NEPA’s purpose. Defendant-
intervenors, moreover, have alleged no harm or even pos-
sible 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.
The irony of the situation confronting this Court is
similar to that faced by the Sixth Circuit in Pacific Legal
10 Agreement {7 13.B, 17, 18. See also DER’s and District’s Reply
Brief, at 32, describing the Agreement as “a new spirit of coopera-
tion between the state and federal governmental agencies who have
bound themselves to work together in a cooperative effort to
preserve and protect the Everglades... .”
70a
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 In-
terior 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 mus-
sels as endangered species had necessitated a halt in con-
struction 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 environment:
The Secretary, by listing species, is working to pre-
serve 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 goai of im-
proving 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) .”
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 require-
ments 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 ez 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
Tla
Like the Sixth Circuit, this Court also declines to per-
mit 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 deteriora-
tion 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 use-
less. The restoration project spans a period of about
eleven years, with interim concentration levels not ex-
pected 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 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
(D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974); Environ-
mental 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 equiva-
lent 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).
72a
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 re-
quiring 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 ad-
vantages and disadvantages of full application of NEPA.”
Portland Cement, 486 F.2d at 386.”
lil. 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 adminis-
trative forum; this is precisely the result which the Farm
Interests, at least, have consistently sought. Though
defendant-intervenors would prefer that the Court relin-
quish its continuing jurisdiction over this case by leaving
the ultimate determination of the United States’ rights
12 The Court is aware of no case in which an action to restore
an environmental resource was enjoined due to non-compliance 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 bene-
ficial or remedial effects of the plans were clearly established in
an EIS.
T3a
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 adminis-
trative 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 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 scien-
tific 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 Inter-
ests wish to participate in the finality of these conclu-
sions and so they shall.
Lest there be any doubt from what has been said be-
fore 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 refer-
ence. If, ultimately, it is determined factually that proce-
dures 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:
T4a
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 be necessary or appro-
priate for enforcement or modification of the terms of
the Agreement.
DONE AND ORDERED in chambers at Miami, Flor-
ida this 24th day of February, 1992.
/s/ William M. Hoeveler
WILLIAM M. HOEVELER
United States District Judge
cc: All counsel of record
PNR! RSE ERG a
Sa a
OP UE EAN UA, Et. RV AN! TI SY ae as et PPE Ne OP Ey)
75a
APPENDIX G
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 88-1886-CIV-HOEVELER
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
Vs.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT; TIMER
E. Powers, Interim Executive Director, South Florida
Water Management District; FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION; and CAROL M.
BROWNER, Secretary, Florida Department of Environ-
mental Regulation, et al.,
Defendants.
SETTLEMENT AGREEMENT
WHEREAS the United States, the South Florida Water
Management District and Timer E. Powers in his official
capacity as Interim Executive Director of the South
Florida Water Management District; and the Florida De-
partment of Environmental Regulation and Carol M.
Browner in her official capacity as Secretary of the Flor-
ida Department of Environmental Regulation, desire to
restore, preserve and protect the unique flora and fauna
of the Everglades National Park and the Arthur R. Mar-
shall Loxahatchee National Wildlife Refuge, to maintain
a cooperative relationship in accomplishing these goals,
and to settle and resolve the disputes that have arisen
between and among them without admitting or conceding
liability;
THEREFORE, the United States, the South Florida
Water Management District and Timer E. Powers, and
16a
the Florida Department of Environmental Regulation and
Carol M. Browner mutually stipulate and agree as
follows:
DEFINITIONS
1. The following definitions shall apply to this Settle-
ment Agreement (“Agreement”) and the attached Ap-
pendices:
A. “Class III water quality standards” shall have
the meaning set forth in Florida Administrative Code
Chapter 17-302.
B. “The DER” shall mean the Florida Department
of Environmental Regulation.
C. “The District” shall mean the South Florida
Water Management District.
D. “The Everglades Agricultural Area” (“EAA”)
shall mean that area including, but not limited to,
the drainage basins of S-2, S-3, S-5A, S-6, S-7, S-8,
and S-150, as further defined in the SWIM Plan or
permits to be developed pursuant to paragraph 13.
E. “The Everglades Protection Area” (“EPA”)
means Water Conservation Areas 1, 2A, 2B, 3A,
3B, the Arthur R. Marshall Loxahatchee National
Wildlife Refuge, and the Everglades National Park.
F. “Imbalance in natural populations of aquatic
flora and fauna” and “imbalance of flora and fauna”
shall have the meaning in Florida Administrative
Code Rule 17-302.560: “Class III Waters—Recrea-
tion, Propagation and Maintenance of a Healthy,
Well-Balanced Population of Fish and Wildlife. (19)
Nutrients: In no case shall nutrient concentrations
of a body of water be altered so as to cause an im-
balance in natural populations of aquatic flora or
fauna.” Imbalance includes situations when nutrient
additions result in nuisance species as defined in
Florida Administrative Code Rule 17-302.200(14),
or when nutrient additions result in violation of other
TE. ne PRI het + rv Le AL OF
IED Le SEES BORG I NO H oS
AAR Ba SS GEE RR aR Wt HIRE
Peg, Pal RR SMES, RPE
77a
standards contained in Chapter 17-302 as defined
in Rule 17-302.510(3)(j). In the case of the Park
and Refuge, imbalance specifically shall include
nutrient additions that result in, but are not limited
to, replacement of native periphyton algal species by
more pollution-tolerant algal species, loss of the na-
tive periphyton community or, in advanced stages of
nutrient pollution, native sawgrass and wet prairie
communities giving way to dense cattail stands or
other nutrient-altered ecosystems, which impair or
destroy the ability of the ecosystem to serve as habi-
tat and forage for higher trophic levels characteristic
of the Everglades. Numerical interpretation of im-
balance shall specifically include an array of indices
to measure sensitivity of the ecosystem to small
changes in nutrients, such as nutrient cycling proc-
esses and the basic components of the Everglades
ecosystem, including periphyton and other sensitive
indicators of nutrient enrichment. The results of the
Research and Monitoring Program will be used to
determine numerically the undesirable level of nu-
trients that cause an imbalance.
G. “Interim concentration limits” for the Park shall
mean the concentration limits to be measured at dis-
charges to the Park and attained by July 1, 1997,
as determined in Appendix A.
H. “Interim concentration levels” for the Refuge
shall mean the geometric mean of concentration
levels to be measured at 14 interior marsh stations
and attained by July 1, 1997, as determined by
Appendix B.
I. “Long-term concentration limits” for the Park
shall mean the concentration limits to be measured
at discharges to the Park and attained by July 1,
2002, as determined by Appendix A.
J. “Long-term concentration levels” for the Refuge
shall mean the geometric mean of concentration
78a
levels to be measured at 14 interior marsh stations
and attained by July 1, 2002 as determined by Ap-
pendix B.
K. “Outstanding Florida Waters” (“OFWs”) shall
mean waters designated by the Florida Environ-
mental Regulation Commission pursuant to Florida
Administrative Code Rule 17-302.700.
L. “The Park” shall mean the Everglades National
Park, including the Park expansion area, as defined
in the Everglades National Park Expansion and Pro-
tection Act of 1989, P.L. 101-229.
M. “The Parties” shall mean the United States and
the State Parties.
N. “The Refuge” shall mean the Arthur R. Mar-
shall Loxahatchee National Wildlife Refuge.
O. “The State Parties” shall mean the South Flor-
ida Water Management District and Timer E. Pow-
ers, in his official capacity as Interim Executive
Director, or his successors; and the Florida Depart-
ment of Environmental Regulation and Carol M.
Browner, in her official capacity as Secretary, or her
successors.
P. “Stormwater Treatment Areas” (“STAs”) shall
mean the stormwater management systems that are
to be designed, acquired, constructed and ope.ated
by the District in a manner primarily to provide nu-
trient removal pursuant to this Agreement. Use of
the term “stormwater” in this Agreement shall not
limit the source or nature of the water to be treated
in the STAs in accordance with this Agreement, and
shall include all water discharged to the EPA
through the S-5A, S-6, S-7, S-8 and S-150 structures.
Q. “The SWIM Plan” shall mean the Surface Water
Improvement and Management (“SWIM”) Plan for
the Everglades Protection Area as defined in the
79a
Marjory Stoneman Douglas Everglades Protection
Act of 1991, Chapter 91-80, Laws of Florida.
R. “Technical Oversight Committee” (“TOC”)
shall mean the committee established in paragraph
18 of this Agreement.
S. “The United States” shall mean the United States
of America and its agencies, including but not lim-
ited to the United States Department of the Interior,
the United States Environmental Protection Agency
(“USEPA”), the United States Army Corps of En-
gineers (“The Corps”), and the United States De-
partment of Agriculture.
T. “The Water Conservation Areas” (“WCAs’”)
shall mean WCAs 1, 2A, 2B, 3A and 3B as de-
scribed in District map dated September 1985.
SETTLEMENT OF CLAIMS
2. This Agreement settles all claims that the United
States raises in the Second Amended Complaint, and all
counterclaims to the Second Amended Complaint that
the State Parties raise, in United States et al. v. South
Florida Water Management District et al., No. 88-1886-
CIV Hoeveler (S.D. Fla.).
INTRODUCTION/BACKGROUND OF PROBLEM
3. The Parties agree that the Park and the Refuge are
unique and irreplaceable natural resources. As the major
remnants of the greatly diminished natural Everglades,
the Park and the Refuge contain unmatched, world-
renowned examples of biologically rich and sensitive eco-
systems. The nutrient-lean (oligotrophic) condition of the
aquatic ecosystems is one hallmark characteristic of the
unspoiled Everglades that still exists in the Park, the
Refuge and other parts of the Everglades. These eco-
systems are changed by even slight increases in nutrient
concentrations, particularly increases in the concentra-
tion of phosphorus.
80a
A. At the present time, the ecological integrity and
ultimately the survival of the Park and Refuge are threat-
ened by the inflow of EAA drainage water containing
excess nutrients. Indeed, the high levels of phosphorus in
EAA discharges constitute the most immediate water
quality concern facing the Everglades system. EAA
drainage that flows directly into the Refuge contains aver-
age phosphorus concentrations ten to twenty times higher
than background concentrations of phosphorus observed
at interior marsh sites. Water from the EAA eventually
flows into the Park through the WCAs. Thus, mainte-
nance of state water quality standards within the WCAs
is crucial to the ecology of the Park.
B. Excess phosphorus accumulates in the peat under-
lying the water, alters the activity of microorganisms in
the water, and disturbs the natural species composition of
the algal mat (periphyton) and other plant communities
in the marsh. These disturbed communities deplete the
marsh of oxygen, and, ultimately, result in native saw-
grass and wet prairie communities being replaced by dense
cattail stands or other nutrient-tolerant ecosystems. The
ability of the ecosystem to serve as habitat and forage
for the native wildlife is thereby greatly diminished or
destroyed. These changes constitute imbalances in the
natural populations of aquatic flora and fauna or indica-
tors of such imbalances.
C. The Parties agree that surface water entering the
Refuge, including water entering through the S-SA and
S-6 pumping stations, contains nutrient levels that are
causing imbalances in the natural populations of aquatic
flora and fauna in violation of state water quality stand-
ards.
D. The Parties agree that surface water entering the
Park from the WCAs contains excessive nutrients that are
being accumulated in the soils and sediments downstream
of one or more Park water delivery structures. Once these
soils and sediments are loaded with excess phosphorus,
ee ee ee
8la
nuisance species that thrive on excess phosphorus are
able to invade the marsh. The presence of these excessive
nutrients is potentially harmful or injurious to animal and
plant life in the Park. Accordingly, such nutrient-polluted
water is, or is reasonably expected to be, a source of
pollution in the Park.
E. The Parties agree that nutrient-polluted water
threatens to devastate the ecosystems in the Park and
Refuge. The Parties further agree that the actions set
forth in this Agreement are necessary to halt or prevent
imbalances in natural populations of aquatic flora and
fauna and other water quality violations in the Park and
Refuge.
COMMITMENT TO RESTORING AND
MAINTAINING WATER QUALITY
4. In recognition of the serious and potentially devastat-
ing degradation threatening the Park and the Refuge as
a result of nutrient-laden waters, and to further a process
that resolves ongoing litigation, the Parties commit them-
selves to guarantee water quality and water quantity
needed to preserve and restore the unique flora and fauna
of the Park and the Refuge.
5. The State Parties shall take such action as is neces-
sary so that waters delivered to the Park and the Refuge
achieve state water quality standards, including Class III
standards, by July 1, 2002. The State Parties commit:
A. To achieve interim phosphorus concentration
limits and levels, as reflected in Appendices A and B,
by July 1, 1997.
B. To achieve long-term phosphorus concentration
limits and levels, as reflected in Appendices A and
B, by July 1, 2002.
6. Compliance with the interim and long-term total
phosphorus concentration limits and levels set forth in or
established pursuant to this Agreement shall be deter-
82a
mined in accordance with the methodologies and proce-
dures set forth below, including the Appendices attached
to this Agreement. If a conflict arises between the fol-
lowing summaries and the Appendices, the Appendices
shall prevail.
TOTAL PHOSPHORUS CONCENTRATION
LIMITS FOR THE PARK
7. The Parties agree that the interim and long-term total
phosphorus concentration limits for the Park are as set
forth in Appendix A.
A. By July 1, 1997, interim concentration limits for
Shark River Slough must be met. The approximate
annual flow-weighted concentration limit will vary
based upon total annual flow, with a range of less
than 14 ppb for a dry year to less than 9 ppb for a
wet year.
B. By July 1, 2002, the long-term concentration
limits must be met for the Shark River Slough,
Taylor Slough and Coastal Basins. The long-term
concentration limits represent the concentration levels
delivered during the OFW baseline period of March
1, 1978 to March 1, 1979, adjusted for observed
variations. The approximate long-term concentration
limits for Shark River Slough also vary with flow,
with a range of less than 13 ppb for a dry year to
less than 8 ppb for a wet year. The long-term
concentration limit for Taylor Slough (S-332 and
S-175) and the Coastal basin (S-18C) is 11 ppb.
C. Compliance with these concentration limits is
expected to provide a long-term average flow-
weighted mean inflow concentration of approximately
8 ppb for the Shark River Slough Basin and 6 ppb
for the Taylor Slough and Coastal Basins. Monitor-
ing of biological responses in the Park will determine
if these limits are sufficient to prevent an imbalance
of flora and fauna; if not, these limits will be ad-
justed to prevent an imbalance of flora and fauna.
83a
TOTAL PHOSPHORUS CONCENTRATION LEVELS
AND DISCHARGE LIMITS FOR THE REFUGE
8. The Parties agree that the interim and long-term total
phosphorus concentration levels for the Refuge are as set
forth in Appendix B. Total phosphorus concentration
levels for the Refuge were calculated from water quality
data collected by the District from 1978 to 1983.
A. By July 1, 1997, phosphorus loads discharged
from the EAA will be reduced by approximately
80% to the EPA and 85% to the Refuge as com-
pared to mean levels measured from 1979 to 1988.
B. Interim concentration levels for the Refuge,
which are effective July 1, 1997, are based on the
relationship between phosphorus concentrations
measured at the 14 interior marsh stations and water
elevations measured at 3 gauges within the Refuge.
Compliance with these concentration levels is in-
tended to limit mean phosphorus concentrations in
water samples collected monthly at 14 interior marsh
Stations to values between 8 and 22 ppb when water
elevations in the Refuge are between 17.14 and
15.42 feet msl, respectively.
C. Inflows to the Refuge must result in compliance
with Class III water quality criteria or long-term
concentration levels, whichever are lower, by July 1,
2002, as set forth in Appendix B. Research and
monitoring will be conducted under this Agreement
to interpret what phosphorous concentration levels
comply with Class III water quality criteria.
D. The STA and best management practices
(“BMPs”) programs are designed to limit Refuge
inflow discharge concentrations to a long-term aver-
age of 50 ppb. DER will require compliance with a
maximum annual discharge limit of 50 ppb for
Refuge inflows if the interim or the lower of the
84a
long-term marsh concentration levels or Class III
nutrient criteria are not being met by the effective
dates. By July 1, 2002, if the 50 ppb maximum an-
nual inflow discharge limit is being met but the lower
of the long-term marsh concentration levels or Class
III nutrient criteria is being violated, DER will en-
force more stringent inflow discharge limits.
WATER QUANTITY REQUIREMENTS
9. Quantity, distribution and timing of water flow to the
Park and Refuge must be sufficient for maintaining and
restoring the full abundance and diversity of the native
floral and faunal communities throughout the Park and
Refuge. The Parties shall take all actions within their
authority necessary to provide adequate flows to meet
the water quantity, distribution, and timing needs of the
Park and the Refuge. The District shall implement mitiga-
tion measures to offset flow reductions to the EPA result-
ing from efforts to improve the water quality in the
EPA. Additionally, the Parties through the TOC shall
jointly develop specific elements of these actions as part
of a basin-wide Everglades ecosystem restoration plan.
Nothing in this Agreement shall limit or prejudice any
rights of the Park or Refuge under State or Federal law
to obtain greater or more specific water quantity.
IMPLEMENTATION OF STORMWATER
TREATMENT AREAS
10. The District commits to purchase, design and con-
struct STAs as set forth in Appendix C.
A. The primary strategy to remove nutrients from
agricultural runoff is the construction and operation
of STAs, which are large scale wetland treatment
systems constructed by the District. These STAs will
mainly receive stormwater directly from the primary
agricultural drainage canals and process it for the
removal of nutrients through intensive management.
$5a
Deliveries may be made to the STAs from Lake
Okeechobee or other sources. These areas will be
designed, operated and managed primarily to purify
the water before it enters the WCAs, the Park and
the Refuge. In addition, their size and location may
allow significant improvement in the manner in
which water is introduced into the natural areas. By
allowing the reintroduction of sheet flow into tens
of thousands of acres of Everglades, the completion
of these projects has the potential for improving
Everglades hydroperiod.
B. The District agrees to acquire the lands set forth
in Table 1. Table 1 provides an estimate of the
effective treatment acres of STAs. The design sizes
and configurations of STAs are based on the need
to achieve an interim outflow concentration of ap-
proximately 50 ppb at each STA outflow point. The
Class III phosphorus criteria when interpreted by
research will be implemented by July 1, 2002, if
lower than the long-term concentration levels. The
size of each STA is based on the assumption that the
volume of flows experienced during the 1979 to
1988 base period from each tributary basin would
be treated with no hydraulic bypass. These STA
acreages (with future adjustments as may be re-
quired based upon performance as set forth in Ap-
pendix C) and the BMP regulatory program provide
the control programs which are anticipated to meet
both the interim and long-term Park and Refuge
Phosphorus concentration limits and levels. How-
ever, notwithstanding the implementation of these
control programs, if the concentration limits and
levels are violated, then the State Parties will imple-
ment additional remedies, such as any necessary ex-
pansion of STAs, more intensive management of
STAs, a more stringent EAA regulatory program, or
a combination of the above. The State Parties shall
not implement more intensive management of the
STAs as the sole additional remedy.
86a
C. Table 1. STA Effective Acreage
Approx.
Approx. Total Effective
Acres to be Treatment
Basin STA Acquired Acres
S-5A STA-1 12,500 11,800
$-6 STA-2 4,000 3,700
S-7 STA-3 5,270 4,950
S-8 STA-4 12,930 12,150
TOTAL: 34,700 32,600
D. The 11,800 acres of STA-1 includes 7,400 effec-
tive treatment area acres which will be constructed
and in operation by July 1, 1997, and 4,400 effective
treatment area acres which will be constructed and
in operation by July 1, 2002, if the long-term
phosphorus concentration levels for the Refuge are
not met by July 1, 2000. Each of the four major
drainage basins in the EAA will have a treatment
system. They will be designed to treat all the flow
from the EAA with respect to the 1979-1988 base
period. If long-term concentration limits and levels
are not met by July 1, 2002, additional acreage will
be required as described in Appendix C.
RESEARCH AND MONITORING
11. The Parties agree to the research and monitoring pro-
gram set forth in Appendix D.
A. Several aspects necessary to achieve compliance
with this Agreement must be defined by additional
research. The research objectives are to:
1. Numerically interpret the narrative Class III
nutrient water quality criteria (i.e., the nutrient
levels which cause an imbalance of flora and
fauna in the units of the EPA); and
2. Assess current and continuing responses of
the EPA to nutrient input levels resulting from
»
i
a
:
c}
wa
*
27]
2.
ae
Ya
=:
ie
mi
Nd
P
4
a
3
AI IPS MNS AR SEN IN NR QE COO APRESS:
Poa te ae
iS gail
od coun
87a
the efforts to achieve interim and long-term con-
centration limits and levels.
B. A key component of these research efforts is the
development (including appropriate data collection)
of models of phosphorus dynamics in the EPA. For
example, one priority would be an understanding of
the relationship
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.