# Appendix — Winchester Homes, Inc. v. Hoover Universal, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1112%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 870 ## 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1112%3A2. Public record. Not legal advice.