# Petition for Writ of Certiorari — Friends of the Everglades v. South Florida Water Management District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2348%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1082 ## Text , Supreme Court, U.S. -, | Pp = i} out \0 eo a ee ee IN THE OFFICE OF THE CLERK Supreme Court of the United States OEY Ect FRIENDS OF THE EVERGLADES, FLORIDA WILDLIFE FEDERATION, and FISHERMEN AGAINST DESTRUCTION OF THE ENVIRONMENT, Petitioners, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT; CAROL WEHLE, Executive Director; UNITED STATES; UNITED STATES SUGAR CORPORATION, Respondents. ON PETITION FOR A Writ OF CERTIORARI TO THE UNITED StaTEs Court OF APPEALS FOR THE ELEVENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Davip G. GUEST SEAN H. DoNAHUE Monica K. REIMER Counsel of Record E,ARTHJUSTICE DONAHUE & GoLpBERG, LLP PO. Box 1329 2000 L St., NW, Ste S08 Tallahassee, FL 32302 Washington, DC 20036 (850) 681-0031 (202) 277-7085 sean@donahuegoldberg.com JOHN FE. CHILDE 150 Indian Mound Trail D Davip. T. GOLDBERG Tavernier, FL 338070 DoNAHUE & GOLDBERG, LLP (805) 712-0172 99 Hudson Street, 8 Floor New York, NY 10013 (212) 334-8813 Attorneys for Petitioners (Additional Counsel for Petitioners Listed on Inside Cover) Davip REINER REINER & REINER, PA 9100 8. Dadeland Blvd. Suite 901 Miami, FI. 33156 (305) 670-S282 QUESTION PRESENTED The Clean Water Act prohibits “the discharge of any pollutant by any person” without a permit issued pursuant to specified provisions of the Act, 33 U.S.C. 1311(a), and defines “the discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source,” id. 1362(12). The Act defines “navigable waters” to mean “the waters of the United States, including the territorial seas.” Jd. 1362(7). The question presented, discussed but left undecided in South Fla. Waiter Mgt. Dist. v. Miccosukee Tribe of Indians of Florida, 541 U.S. 95 (2005), is whether all waters of the United States may be treated as a “unitary” whole for purposes of the Act’s provisions requiring permits for point source discharges, so that transferring pollutants from one distinct water body to another — in this case, pumping contaminated water from drainage canals into an ecologically sensitive lake used for drinking water — does not constitute an “addition” of the pollutants to navigable waters and therefore does not require a permit. 11 PARTIES TO THE PROCEEDING Petitioners are Friends of the Everglades, Florida Wildlife Federation, and Fishermen’ Against Destruction of the Environment. All three petitioners were plaintiffs in the United States District Court for the Southern District of Florida and were appellees before the United States Court of Appeals for the Eleventh Circuit. Friends of the Everglades and Florida Wildlife Federation were also cross-appellants in the Eleventh Circuit. The Miccosukee Tribe of Indians of Florida was an intervenor in support of plaintiffs in the district court and an appellee and cross-appellant in the court of appeals. Respondent South Florida Water Management District, was a defendant in the district court, and appellant and cross-appellee in the court of appeals. Carol Wehle, its Executive Director, was, in her official capacity, a defendant in the district court, and an appellant in the court of appeals. The United States Sugar Corporation and the United States of America were intervenors in support of defendants in the district court, and appellants in the court of appeals. RULE 29.6 STATEMENT None of petitioners has a parent company, and none has issued stock. 111 TABLE OF CONTENTS QUESTION PRESENTED ........................ 0008. PARTIES TO THE PROCEEDING ................. ll RULE 29.6 STATEMENT ......:scccsccscesesscccscecce Ll TAB OF AP Fe vse vsccescnvevecpecsscnceones iv TARheee COE AU TARE LID 66. ces cesvesaccasvesves veeesces ¥ Pe MUERTE COMET oes conc cisepcctsccunadvesescccodeansss l EIT Rav dak ca edsbesisd hie tiv dtnateriaiisiseses ] STATUTORY PROVISIONS INVOLVED ......... ] STATEMENT OF THE CASE ...............2....008. l Fe I Te Ps one snssc0 4p sedesdavends ] B. The Disputed Discharges ......................65. 3 Ot ae 4 D. The District Court’s Decision ................... 6 E. EPA’s Water Transfers Rule .................... 8 F. The Court of Appeals’ Decision .................. 10 REASONS FOR GRANTING THE WRIT .......... 14 I. CERTIORARI IS WARRANTED BECAUSE THE COURT BELOW APPROVED A SWEEPING STATUTORY EXEMPTION THAT IS CONTRARY TO THE ACT AND HAS BEEN REJECTED BY OTHER COURTS OF APPEALS ............ 16 A. The Definition of a “Discharge of a 1V Pollutant” Does Not Support the LISRAPY WACEIO TROOLY ic ccccescvesesccccsccssses: 17 B. Numerous Provisions of the Act Refute the Unitary Waters Theory ................00688. 22 1. The Definition of “Pollutant” ............... 22 2. The Act’s Focus on Protecting Specific NI occ sss de teed sion sausecacecnkcoeds 24 3. Express Statutory Objectives and as ii ora hee Cee tae at 27 Il. THIS CASE PRESENTS THE PROPER OCCASION FOR THE COURT TO ADDRESS THE IMPORTANT QUESTION LEFT OPEN TN BEICOCUISURER occ csccsscccncncvessveseses Oe Se ETE, Sivivecasessvecesssacietasvertimexssessineesiis ee TABLE OF APPENDICES APPENDIX A: Court of Appeals Opinion APPENDIX B: APPENDIX C: APPENDIX D: APPENDIX E: CFenee ©, FOTO) ccc. coccocccccdvcss la Final Judgment of the District Court (June 15, 2007) ......... 39a District Court, Order on Remedies of the District Court (June 15, 2007) ......... 4la District Court, Findings of Fact and Conclusions of Law (Dec. 11, 2006) ............53a Order Denying Rehearing I aed en bue st useancven 203a APPENDIX F: Relevant Statutes ............... 205a TABLE OF AUTHORITIES Cases: Alaska Ctr. for the Envt. v. Reilly, 762 F. Supp. 1422 (W.D. Wash. 1991) .......... 29 Arkansas v. Oklahoma, 503 U.S. 91 (1992) ........ 2 Babbitt v. Sweet Home Chap. of Cmtys. for Greater Or., 515 U.S. 687 (1995) ...... 00... cece eee. 27 Brown v. Gardner, 513 U.S. 115 (1994) .............. 16 Catskills Mountains Chapter of Trout Unlimited, Inc. v. City of New York, ep pe Ee Cee) passim Catskills Mountains Chapter. of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77 (2d Cir. 2006) .........cscccec000 passim Catskills Mountains Chapter of Trout Uniimited, Inc. v. EPA, 630 F. Supp. 2d 295 (S.D.N-Y. 2009) ............ 10 Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) ............ passim City of Kansas City v. Dept. of Housing and Urban Dev., 923 F.2d 188 CM te NN nc ors acesag ei era ehcsceikiaadeeuen 18 Clark v. Martinez, 543 U.S. 371 (2005) Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) Cuomo v. Clearing House, 129 S.Ct. 2710 (2009) ..21 Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.1991) Dept. of Navy v. Egan, 484 U.S. 518 (1988) 27 Dubois v. United States Dept. of Agriculture, 102 F.3d 1273 (1st Cir. 1996) passim E.L Du Pont De Nemours & Co. v. Train, 430 U.S. 112 (1977) EPA v. California, 426 U.S. 200 (1976) MCI Tel. Corp. v. Amer. Tel. & Tel, 512 U.S. 218 (1994) Miccosukee Tribe of Indians of Florida v. South Fla. Water Mgt. Dist., 280 F.3d 1364 (11th Cir. 2002), afd in part, vacated and remanded, 541 U.S. 95 (2005) Miccosukee Tribe of Indians of Florida v. South Fla. Water Met. Dist., 559 F.3d 1191 (11th Cir. 2009) Milwaukee v. Illinois, 451 U.S. 304 (1981) Vll Morrison v. National Australia Bank, Ltd, DBD Ct, BI CT oc cvincccccsctvccecacccvcscesccsss 16 National Cable & Telecommunications Ass'n v. Brand X Internet Services, a Ue re Ce cerscvicacseiaccviec ace 30 National Wildlife Fed'n v. Gorsuch, 693 F.2d156 (D.C. Cir. 1982) ............... 20 Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) ............ 28 Nixon v. Missouri Mun. League, BOR UD, Te ose vesteiesecicsseuessseccanae 19 N. Plains Res. Council v. Fidelity Exploration & Dev., 325 F.3d 1155 (9th Cir. 2003) ........ 10,19 Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9 Cir. 2008) .............. .. 32 PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994) ......... 2,26 Rapanos v. United States, S67 U.S. 716 Ge sa this tsiorsinmes 20,22 Santos v. United States, 128 S. Ct. 2020 (2008) ... 24 vill S.D. Warren Co. v. Maine Bd. of Envtl Protection, 547 U.S. 370 (2006) ..............008: 2,26 South Fla. Water Mgt. Dist. v. Miccosukee Tribe of Indians of Fla., CS passim Train v. City of New York, 420 U.S. 35 (1975) ...... 2 United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., CE 19 United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001) ............... 19 United States v. Riverside Bayview Homes, EE) 20 West Va. Univ. Hosps., Inc. v. Casey, a 27 Statutes: Title 1, U.S.C.: Title 28, U.S.C.: Neer ei vccacsacnctusnstdsbudesenveccsncaenes l ee ca cacsdcnvas caubacesecsssesececavcences l rarer ccnaesanancacsetcesecescccsecessceseses l errs ci viccscdvensnciccidecessscesescees 9 Title 33, U.S.C, 33: 1251(a)(1) 1251(a)(2) 1311(a) passim Se LAUD seu ssssnscisceksthserseiaateanaceeee 25 1313(a) 1313(c)(2) 1313(c)(3) 1313(d) 1313(d)(4)(B) 1314(a) 1342(a) 1342() 1342(r) RIE ksnsse-asauacuansudsescuneusaieswietes cancseniann passim 1362(7) passim RIG viviscsiv suc ceuenateiaisaseis renee passim 1362(14) passim REED, ENDIX A Tia \ CeTIN INCONSISI Water Act to lea the transfer of polluta navigable body of water to another, but it | than to leave out avricultural run-off all ae non point ource CTCALOC H huge are t the Gulf of Mexico. Yet we know the Act doe this illustrate leyislation speak: roals, the legislative competing interest ILS Irom ome no more i] . ALIOW TITY ad ZT that W nal tnal even wnen tne preambl Ui Ingle-mindedly and espouses loft proce erves as a melting pot and What emerge Irom enactment 1s ofte promise fhe pl ‘compromises cobble rorce and compl mindedne it 3 legislative proc ! eave more tna quirement L ¢ if cl | }> { lip] otation omitte 174 | a | Ya OY CLOSE LeL i] 1 ( } } | Lire cite a face-oll of battling taction ’ tT? pure than the on oO] ley ial vretner [ compet ‘ t he Oy difficult to bel ted in a Clean Wa ‘ ; aan ‘ TOA head (j 0) LO! ma comp) Wane ere bniLAale i | ' ; iA. 10 { f ) } iT} ’ , (ry a 46 ( iP conti {) hHecome tne preamble 10) 7) re] (*¢ fit? polit | ith} Lnhat Ul a Le} Lc’ permitttl ; | ’ i } [ »? i ' (] ite i a ' ; | i? ft ' ; SOq APPENDIX A As the Supreme Court once said, “lajfter seizing every thing from which aid can be derived we are left with an ambiguous statute.” (/nited States v. Bass, 404 U.S. 336, 347, 92S. Ct. 515, 522, 80 L. kd. 2d 488 (1971) (internal citation and alteration omitted). There are two reasonable ways to read the § 1361(12) language “any addition of any pollutant to navigable waters from any point source.” One is that it means “any addition ... to lany] navigable waters;” the other is that it means “any addition... to navigable waters [as a whole|.” As we have held before, “the existence of two reasonable, competing interpretations is the very definition of ambiguity.” (/nited States v. Acosta, 3868 F.8d 1141, 1155 (Jith Cir, 2004) (quotation marks omitted), 1) Having concluded that the statutory langruaye | ambiguous, our final issue is whether the EPA’ reyulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an “addition... to navigable waters,” is a permissible construction of that language. Chevron, 467 US. at 848, 104 S. Ct. at 2782. In making that determination, we “need not conclude that the ageney construction was... the reading: the court would have reached if the question initially had arisen in a judicial proceeding.” ld. at 887, $43 n.11, 104 SS. Ct. at 2782 n. 11: see also id ul 844, 1048. Ct. at 2782 ([A| court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator o! an ayency.”). Because the EPA's construction is one of lad ~] fo APPENDIX A the two readings we have found is reasonable, we cannot say that it is “arbitrary, capricious, or manifestly contrary to the statute.” /d. at 844, 104 S. Ct. at 2782. Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marble-mover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable. Like the marbles rule, the Clean Water Act’s language about “any addition of any pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA reseinds or Congress overrides the regulation, we must give effect to it. 38a APPENDIX A In the defendants’ appeal, we REVERSE the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act. We DISMISS AS MOOT the plaintiffs’ cross-appeal from the dismissal of the Water District on Eleventh Amendment grounds. REVERSED in part and DISMISSED in part. 39a APPENDIX B — FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, DATED AND FILED JUNE 15, 2007 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 02-80309-CIV-ALTONAGA/Turnoff FRIENDS OF THE EVERGLADES, INC., et al., Plaintiffs, VS. HENRY DEAN, Executive Director, South Florida Water Management District, in his official capacity; et al., Defendants. FINAL JUDGMENT THIS CAUSE came before the Court upon the Order on Remedies issued separately on this date. Pursuant to the Order on Remedies and the Court’s December 11, 2006 Order Setting Forth Findings of Fact and Conelusions of Law [D.E. 636], it is 40a APPENDIX B ORDERED AND ADJUDGED as follows: (1) A declaratory judgment is issued in favor of Plaintiffs. In the absence of a National Pollutant Discharge Elimination System (“NPDES”) permit, the South Florida Water Management District's (“SFWMD['s]”) operation of the S-2, S-3, and S-4 pump stations to backpump pollutant-containing waters from the canals in a northerly direction into Lake Okeechobee is in violation of the Clean Water Act. (2) A permanent injunction is issued in favor of Plaintiffs. The SFWMD’s Executive Director shall apply to the Florida Department of Environmental Protection fora NPDES permit forthwith. (3) The Court shall retain jurisdiction, including to the extent allowable in light of the parties’ anticipated appeal, to ensure compliance with this Judgment. Furthermore, the Court retains jurisdiction over Plaintiffs’ request for the award of attorney's fees and costs. DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of June, 2007. s/ Cecilia M. Altonaga CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE dla APPENDIX C — FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, DATED JUNE 14, 2007 AND FILED JUNE 15, 2007 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 02-80309-CIV-ALTONAGA/Turnoff FRIENDS OF THE EVERGLADES, INC., et al., Plaintiffs, VS. HENRY DEAN, Executive Director, South Florida Water Management District. in his official capacity; ef al., Defendants. ORDER ON REMEDIES THIS CAUSE came before the Court upon the parties’ memoranda on injunctive relief and remedies;' 1. Plaintiffs, Friends of the Everglades (“FOE”), Fishermen Against Destruction of the Environment, Ince. (“FADE”), and Florida Wildlife Federation's (*“FWF[‘s]") Memorandum on Injunctive Rehef and Remedies |D FE. 649); Intervenor-Plaintiff, the Mieccosukee Tribe of Indians of (Cont'd) 42a APPENDIX C Plaintiffs’ and Plaintiff-Intervenor’s Joint Motion for Joinder of Mike Sole, in his Official Capacity as Secretary of the Florida Department of Environmental Protection, as an Involuntary Plaintiff |D.E. 653], filed on March 6, 2007; Intervener-Defendant, U.S. Sugar’s Motion to Strike Plaintiffs’ Exhibits to Plaintiffs’ Memorandum on Injunctive Relief and Remedies {D.E. 665], filed on April 13, 2007; and Defendant, the SFWMD’s Motion for Certification Under § 1292(b) [D.E. 689}, filed on June 4, 2007. The Court has carefully considercd the parties’ written submissions, the record, and applicable law. I. BACKGROUND On December 11, 2006, after a bench trial, the undersigned issued an Order Setting Forth Findings of Fact and Conclusions of Law (the “December 11 Order”), which concluded, in pertinent part, that “in the absence of a [National Pollution Discharge Elimination System (“NPDES”)] permit, the operation of the S-2, S-3, and 5-4 pump stations to backpump pollutant-containing (Cont'd) Florida’s (the “Tribe[’s]”) Brief in Support of Appropriate Final Judgment Remedies and Procedures [D.E. 654]; Defendants, South Florida Water Management District (the “SFWMD”) and Carol Wehle’s (“Wehle[’s]”) Response in Opposition to Plaintiffs’ Memoranda Regarding Remedies [D.E. 673]; Intervenor-Defendant, United States’ Remedy Brief [D.E. 662]; Intervenor-Defendant, United States Sugar Corporation’s (“US. Sugar[’s]") Memorandm on Remedies and Post-Trial Proceedings {D.E. 664]; and the reply briefs filed by the parties. 43a APPENDIX C waters from the canals in a northerly direction into Lake Okeechobee is in violation of the {Clean Water Act].” (Dec. 11 Order [D.E. 636] at 106). Finding that the issue had not been fully briefed, the Court did not rule, at that time, on Plaintiffs’ request that the Court issue an injunction requiring the SFWMD and/or its Executive Director to obtain a NPDES permit for the SFWMD’s backpumping activities. (See id.). The parties have submitted lengthy briefs regarding what particular injunctive relief, if any, the Court should order. Plaintiffs and Intervenor-Plaintiff, in their briefs regarding remedies, have taken the position that the Court should enter an injunction requiring the SFWMD’s Executive Director* to apply for a NPDES permit and should hold additional hearings to determine what interim injunctive relief should be granted while that NPDES permit application is pending. Defendants, the SFWMD and Wehie, agree that, given the December 11 Order, the SFWMD must submit to the state’s NPDES permitting scheme (although they argue an injunction is not necessary because they will voluntarity comply with that requirement). Defendants further argue that the Court should issue a final interpretive judgment and retain jurisdiction to ensure 2. In the December 11 Order, the Court found that the SFWMD enjoyed sovereign immunity from Plaintiffs’ suit. The SFWMD, however, has conceded that the case may proceed against its Executive Director under the doctrine of Fx parte Young, 209 U.S. 123 (1908). 44a APPENDIX C compliance with that judgment.’ (See SFWMD Remedies Br. |D.E. 673] at 23). They also maintain that the Court does not have the authority to, nor should it, order any type of interim injunctive relief. (See id. at 3-23). Il. ANALYSIS A. Issuance of Injunction Requiring the SFWMD to Apply for NPDES Permit 1. Legal Standard A party is entitled to the issuance of a permanent injunction where the party has established: (1) the violation of a right asserted in the complaint (success on the merits in the party’s case); (2) that there is no adequate remedy at law for the violation of the right; and (3) that irreparable harm will result if the court does not order injunctive relief. See Alabama v. United States Army Corps of Eng’rs, 424 F.3d 1117, 1128 (11th Cir. 3. Intervenor-Defendant, United States, agrees that an order requiring the SFWMD/Wehle to apply for a NPDES permit would be appropriate in this case. (See U.S. Remedies Br. |D.E. 662] at 3). Intervenor-Defendant, U.S. Sugar, also appears to agree that an injunction requiring compliance with the NPDES permitting scheme would be appropriate should the Court find that, at tnal, Plaintiffs met their burden of proving irreparable harm and that such an injunction would be in the public interest. (See U S. Sugar Remedies Br |D.E. 664} at 46-47). U.S. Sugar has also taken the position that the issuance of interim injunctive relief would be inappropriate in this case. (See rd. at 3). 45a APPENDIX C 2005). Because issuance of an injunction is an equitable remedy, the Court must also balance the hardships between the parties and give due regard to the public interest in fashioning an appropriate remedy. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). 2. Issuance of Injunction is Warranted Here As more fully set forth in the Court’s December 11 Order,’ Plaintiffs have established a violation of the CWA, prevailing on the merits of their claim. Such a violation of the CWA may only be remedied by the issuance of equitable relief, and the Court finds that there is no adequate remedy at law. The outstanding questions, then, are whether: (1) Plaintiffs established at trial the existence of irreparable harm, and (2) the balance of hardships and the public interest favor the issuance of an injunction requiring that the SFWMD’s Executive Director apply fora NPDES permit. a. Ilrreparable Harm Plaintiffs contend that they established at trial that irreparable harm will result if their requested relief is not granted. In support of this argument, they cite to the testimony of Dr. Tom Crisman, who testified that the backpumping at issue creates a significant risk of triggering a toxic algal bloom that could cause serious injury to humans and death to wildlife. (See Pls. 4 The Court adopts in this Order the Findings of Fact and Conclusions of Law set forth in the December 11 Order. 46a APPENDIX C Remedies Brief |D.H. 649] at 4-5). In addition, Plaintiffs contend that the trial testimony established that backpumping and disinfection create toxic disinfection byproducts that can sicken humans. (See 7d. at 5). Finally, Plaintiffs contend that the trial testimony established that backpumping causes irreparable ecological harm to Lake Okeechobee. (See id. at 6). Defendants do not seriously challenge these assertions, and the undersigned finds that Plaintiffs have met their burden of showing the potential for irreparable harm in the absence of a permanent injunction. b. Balance of Equities and Public Interest Plaintiffs contend that the irreparable harm they illustrated at trial outweighs any inconvenience to Defendants that will result from the issuance of an injunction requiring a NPDES permit. (See id. at 6). They also assert that the public interest in safe water supplies and the ecological integrity of Lake Okeechobee favor the issuance of such an injunction. (See id.). The undersigned agrees and finds that equitable considerations favor the issuance of an injunction requiring that the SFWMD’s Executive Director apply fora NPDES permit.’ 5. The SFWMD and Wehle assert that the issuance of an injunction is unnecessary because the December 11 Order made clear that the SFWMD must have a NPDES permit for its backpumping operations, an issue that was previously unclear, and the SFWMD has every intention of complying with the law (Cont'd) 47a APPENDIX C 3d. Inclusion of Deadlines in Injunction Plaintiffs contend that the Court should place a specific time limit for compliance and for the issuance of the permit. Given anticipated complications in the permitting process, including, among other things, that there are no “off-the-shelf” templates that can be followed in fashioning an appropriate permit, the Court finds that the imposition of hard deadlines for issuance of the NPDES permit would be inappropriate in this case, and that an order requiring application for such a permit “forthwith” will adequately address Plaintiffs’ claims. B. Issuance of Interim Injunctive Relief In their Remedies Brief, Plaintiffs assert that the Court should hold hearings regarding whether to order interim relief, which could include, inter alia, requiring: (1) the SFWMD and/or its Executive Director to report to the Court on backpumping episodes; (2) development of a new pumping protocol; (3) preparation of an analysis of the effect of the Bolles Canal expansion; (4) construction of additional in-city and on-farm on-site (Cont'd) as interpreted by the Court. (See SI'WMD Remedies Br at 24 25) Having found that Plaintiffs are legally entitled to the issuance of an injunction, the remedy they sought in their complaints, the undersigned 1s not persuaded now by the argument that the Court should not enter an injunction because the SFWMD’s Executive Director will voluntarily comply with the implications of the Court's interpretation of the CWA, 48a APPENDIX C floodwater storage facilities; (5) application of the SFWMD’s best management practices (“BMP”) rule in the S-4 Basin; and (6) stormwater treatment area (“STA”) construction or enlargement. (See Pls. Remedies Br. at 9-10). Intervenor-Plaintiff, the Tribe, additionally requests that the Court issue an order invalidating the Environmental Protection Agency’s Proposed Rule regarding NPDES water transfers, see 71 Fed. Reg. 32887, a request the United States adamantly opposes on a number of bases. (See Tribe Remedies Br. 1D... 654] at 16-19; U.S. Remedies Br at 7-11). Plaintiffs propose an extensive and lengthy process for the Court’s consideration of these proposed interim remedies. That process would include the designation of experts, exchange of expert reports and rebuttal expert reports, mediation wherein the parties’ experts would attempt to agree on appropriate interim relief, expert depositions, and an evidentiary hearing. Defendants raise a number of challenges to Plaintiffs’ requests for interim relief, including that Plaintiffs failed to put Defendants on notice of these requests in their complaints and failed to establish their entitlement vo such interim relief at trial. Defendants also raise a number of legal arguments regarding the Court’s authority to issue such interim relief. In addition, based on Plaintiffs’ proposal for a lengthy remedies procedure, the SEWMD has renewed its Motion for Certification Under § 1292, urging that the Court enter a final declaratory judgment and allow the parties to take an interlocutory appeal of the December 11 Order. Wa APPENDIX ¢ The undersigned finds that the issuance of interim relief is premature, and perhaps academic at this time By entering a Final Judgment that includes the permanent injunction that Plaintiffs sought from the inception of this case, the Court has resolved the case in a manner that allows the parties to immediatel) pursue their appeals of the Court’s conclusion that the CWA requires the SkKWMD to acquire a NPDES permit for its backpumping activities. That appeal would likely result in a stay of any interim relief the Court could order at the conclusion of the somewhat lengthy proce Plaintiffs envision. Conducting further evidentiary hearings, which would require the parties to engage in additional discovery and would require the Court to resolve highly technical arguments regarding the environmental impact of the SFWMD’s activities, could potentially result in the unnecessary expenditure of resources for both the judiciary and the parties. Should the Court’s interpretation of the CWA be overturned on appeal, that expenditure of time and resources would have been in vain In entering a inal Judgment, the Court will retain jurisdiction to ensure compliance with the judgment meaning that the Court will have jurisdiction to order interim remedies should this matter return to this Court ‘ following appeal. Plaintiffs’ present requests for interim rehef are ther fore denied SOa APPENDIX © C. Joinder of DEP Secretary Mike Sole In their Joint Motion for Joinder of Mike Sole, in his Official Capacity as Secretary of the Florida Department of Environmental Proteetion, as an InvoluntaryPlaintiff [D.e. 653], Plaintiffs and Intervenor-Plaintiff contend that the Court should join Mike Sole (the “DEP Secretary”) as an involuntary plaintiff for purposes of the remedies phase of the proceedings to “ensurle]| that the defendant’s NPDES permit applications ... are promptly processed and issued and to facilitate consideration of the permitting agency's position on questions relating to interim remedies.” (Mot. [D.lé. 653] at 1-2). Setting aside the issues of whether such a joinder would be feasible under the Federal Rules of Civil Procedure, the undersigned agrees with Defendants and Intervenor-Defendant, United States, that such joinder would be premature at this time because there is no evidence that the DIP Secretary or the Florida Department of Environmental Protection will attempt to delay issuance of a permit to the SEWMD. Should such a delay occur or should another reason for joinder arise, Plaintiffs may renew their motion, >. Dismissal of the SEWMD In their brief reyarding remedies, the SEWMD and Wehle request that the SEWMD be dismissed from this action on the basis of the sovereign immunity that the undersigned found it enjoys from this suit. The request Is appropriate and is granted Sla APPENDIX C HI. CONCLUSION Based on the foregoing, it is ORDERED AND ADJUDGED as follows: (1) Plaintiffs’ request that the Court issue an injunction requiring the SFWMD's Executive Director to apply for a NPDES permit forthwith is GRANTED. The injunction shall be issued in a separate Final Judgment, which shall be immediately appealable. The Court will retain jucisdiction over the parties, including to the extent allowable while any appeal is pending, to ensure compliance with the judgment. (2) Plaintiffs’ request for interim injunctive relief is DENIED for the reasons set forth above. (3) Plaintiffs and Plaintiff-Intervenor’s Joint Motion for Joinder of Mike Sole, in his Official Capacity as Secretary of the Florida Department of Ienvironmental Protection, as an Involuntary Plaintiff |D.E. 653] is DENIED. (4) U.S. Sugar’s Motion to Strike Plaintiffs’ Exhibits to Plaintiffs’ Memorandum on Injunctive Relief and Remedies [D.E. 665] is DENIED AS MOOT. (5) The SEFWMD’s Motion for Certification Under § 1292(b) [D.E. 689] is DENIED AS MOOT. S2a APPENDIX C (6) Defendants’ Motion to Strike and, in the Alternative, Response to Requests to Clarify and Reconsider Eleventh Amendment Issues [D.E. 691], filed on June 14, 2007, is DENIED. (7) Plaintiffs’ claims against Defendant, the SFWMD, are DISMISSED. The Executive Director of the SFWMD shall remain as a party to this action. (8) The Clerk of the Court is instructed to CLOSE the case. Any pending motions not otherwise ruled upon are DENIED AS MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of June, 2007. s/ Cecilia M. Altonaga CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE S3a APPENDIX D — ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, DATED AND FILED DECEMBER 11, 2006, SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 02-80309-CIV-ALTONAGA/Turnoff FRIENDS OF THE EVERGLADES, INC., et al., Plaintiffs, VS. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ef al., Defendants. ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court for a non-jury trial beginning on January 9, 2006 and ending on April 19, 2006. The Court heard testimony from over 20 witnesses, and approximately 165 exhibits were entered into evidence. S4a APPENDIX D I. BACKGROUND Plaintiffs, Friends of the Everglades (“FOE”) and Fishermen Against Destruction of the Environment (“FADE”), filed suit against the South Florida Water Management District (“SFWMD”) on April 8, 2002. FOE, an organization of over 6,000 members, was formed by Marjory Stoneman Douglas to preserve and protect the Everglades. (Comp. [|D.E.1] at 2). FADE was founded by a group of fishermen and conscientious conservationists concerned about the degradation of Lake Okeechobee. (See id. at 3). The SFWMD is an independent, special district of the State of Florida charged with the operation and maintenance of certain pump stations that pump water into Lake Okeechobee. (See id. at 4). The Complaint sought an order requiring the SFWMD to obtain a National Pollution Discharge Elimination System (“NPDES”) permit under the Clean fater Act (“CWA”), 33 U.S.C. § 1251 et seqg., before the SFWMD could discharge water containing pollutants into Lake Okeechobeeby means of the S-2, S-3, and S-4 pump stations. Jurisdiction was based on the “citizen suits” provision of the CWA, 33 U.S.C. § 1365(a),! and 1. Section 1364(a) provides, in part, that any citizen may commence a civil action on his own behalf — (1) against any person (ineluding (i) the United States, and Gi) any other governmental (Cont'd) APPENDIX D federal question jurisdiction under 28 U.S.C. § 1331. The ease was consolidated with Florida Wildlife Federation vu. So. Florida Water Mgmt. Dist., Case No. 02-80918- Civ (see Dec. 9, 2002 Order |D.E. 39]), and the latter pase was accordingly closed. The Florida Wildlife Federation (“FWE”) is a statewide non-profit conservation and education organization with a mission of preserving, managing, and improving the water resources and fish and wildlife habitat of Florida. (Conep. [D.E. 1 in 02-80918-Civ] at 3). The City of South Bay, Florida, and United States Sugar Corporation (“U.S. Sugar”) were granted permission to intervene as Defendants in an order dated October 2, 2002. [D.E. 23].2 In support of intervention, (Cont'd) instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who 1s alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there 1s alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, ... to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this ttle. 2. The undersigned subsequently granted the City of South Bay, Florida’s Motion to Withdraw. [D.E. 212]. S6a APPENDIX D U.S. Sugar asserted that it has substantial sugar cane growing and harvesting operations in the S-2 and 8-3 drainage basins served by the pump stations at issue, that it has property interests in the crops, that operation of the pump stations prevents its crops from being flooded and destroyed, that issuance of the requested NPDES permits for previously unregulated structures could cause U.S. Sugar to lose a statutory entitlement for an agricultural exemption from NPDES permitting, and that, in short, any decision requiring the SFWMD to obtain a NPDES permit would be devastating for U.S. Sugar’s operations. (See Mem. in Supp. of Mot. to Intervene [D.E. 18] at 2-3). The Miccosukee Tribe of Indians of Florida (“Miccosukee”) was granted leave to intervene as a Plaintiff in an order dated December 9, 2002. |D.E. 40]. In support of intervention, Miccosukee maintained that backpumping of pollutant-laden waters by the SFWMD into Lake Okeechobee threatened Miccosukee’s way of life in the Everglades and Lake Okeechobee, and that the destruction infringed on Miccosukee’s ability to practice its religion and on its traditional bases of subsistence, commercial activities, and natural resources. (Mot. to Intervene |D.E. 24] at 4). Much later, on May 2, 2005, the United States of America, on behalf of the United States Army Corps of Engineers (“Corps”) and the United States kinvironmental Protection Agency (“IPA”), was granted permission to intervene as a Defendant. [D.E. 263]. The United States maintained it had a compelling interest S7a APPENDIX D in the litigation because for decades the Corps had been building a comprehensive network of levees, water storage areas, pumps and canal improvements in South Florida, and the S-2, S-3, and S-4 pump stations were part of the Central and South Florida Project. As for the EPA, that agency administers the NPDES permitting program in conjunction with the states, including Florida, that have assumed responsibility for issuing permits within their borders under 33 U.S.C. § 1342. (See [D.E. 198] at 1-2). On May 12, 2003, the case was reassigned to the docket of the undersigned. [D.E. 77]. After the Supreme Court accepted certiorari in yet another related case styled So. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, Case No. 98-6056-Civ (“S-9 Case”), all proceedings were stayed by order dated July 1, 2003. [D.E. 147]. On January 21, 2005, after the Supreme Court entered its decision in the S-9 Case,’ the Court granted the SFWMD’s Motion to Reopen the Case. | D.E. 179]. The pleadings have been amended several times by all parties since the inception of the litigation. Miccosukee’s Second Amended Complaint, filed on February 22, 2005, among other things, added as a named Defendant Henry Dean, Executive Director of the SFWMD, in his official capacity. [D.E. 188]. 3. See So Flornda Water Mgmt Dist v. Miccosukee Tribe of Indrans, 541 U.S. 95, 1248. Ct. 1537, 158 L. Ed. 2d 264 (2004). S8a APPENDIX D Plaintiffs seek the following relief: (1) a judgment declaring that the SFWMD (and its representatives) has violated, and is in continuing violation of, the Clean Water Act, 33 U.S.C. § 1251 et seg.; (2) an order enjoining the SFWMD from continuing to violate the CWA; (3) an injunction requiring the SFWMD (and its representatives) to obtain a NPDES permit for its backpumping activities at the S-2, S-3, and S-4 pump stations; (4) an order requiring the SFWMD to provide Plaintiffs with a copy of all reports it submits to the state or federal government concerning the discharge of water to Lake Okeechobee (the “Lake”);' and (5) an award of attorney’s fees and costs. No affirmative relief is sought against Intervenor-Defendants, U.S. Sugar. An issue raised by the SFWMD consistently in its pleadings is its defense of sovereign immunity. The undersigned denied the parties’ cross-motions for summary judgment in an order dated November 23, 2005 [D.E. 527], and the trial followed. During and after the trial, the undersigned reviewed the evidence admitted, and considered all applicable law and arguments presented by counsel. The following findings of fact and conclusions of law are therefore made pursuant to the requirements of Rule 52 of the Federal Rules of Civil Procedure. 4. FWF has not specifically requested the furnishing of such reports. 59a APPENDIX D Il. FINDINGS OF FACT A. Historical Description of Lake Okeechobee and the Everglades The landscape of South Florida today is markedly different from that which existed prior to the extensive settlement and development the area has experienced since the late 19th century. The Court’s analysis begins with a description of the area as it existed prior to development efforts. The description focuses primarily upon the southern portion of Lake Okeechobee and the northern portion of the Everglades. Today this combined area is known as the Everglades Agricultural Area (“EAA”). Lake Okeechobee has been referred to at various times throughout recorded history as Laguna Del Espiritu Santo (1763), Lak du St. Esprit (1780), Lake Mayacoo (1835), and Lake O-Kee-Cho-Bee(1839, 1856). (See Trial Tr. Feb. 14, 2006, 58:22-59:8, 60:17-20, 63:6- 18, 65:3-66:14). To the south of Lake Okeechobee (in the area now known as the EAA and, further south, the Evergiades) was an immense and vast wetland referred to by Native Americans as “grassy water.” (See Joint Pretrial Stip. [D.E. 536], Attach. 5B 9 6). The “grassy water” area encompassed some three million acres. (See ud.). Today, the Everglades is less than half of its pre- drainage size. (See 2d., 48). Prior to extensive drainage operations, Lake Okeechobee had higher water levels 60a APPENDIX D and extended further south and west than it does today. (Id., 139).° Maps, surveys, and accounts of the natural conditions of the southern rim of the Lake describe a sandy-bottomed lake with water grasses gi owing in the shallows. (Plain. Ex. 60, p. 66; Plain. Ex. 57). The Lake bed rose to a muck rim covered with custard apple trees, (Trial Tr Jan. 9, 2006, 163:21-25, 165:10-24), followed by a slow downward gradient to the south through the Everglades. (Trial Tr. Jan. 9, 2006, 189:8-18). Short tributary rivers flowed from the Lake’s southern forested rim. (Plain. Ex. 60, pp. 69-73). Accounts survive of parties navigating the tributary rivers extending from the southern shore of the Lake. (See Trial Tr. Feb. 14, 2006, 68:21-69:5; Plain. E’x. 60). Lake Okeechobee appear's as a dominant feature on maps of Florida dating back at least 250 years. (Trial Tr. Feb. 14, 2006, 58:22-25; see also Def Ex. 75, p. 6). Beginning in the eighteenth century, there were various attempts to map the area of South Florida. Although many features of the maps changed over time as map- making techniques and knowledge of the area improved, the maps consistently showed two separate features — a very large lake bordered on the south by a vast 5. The surface waters of the Lake historically encompassed the area that today contains the Herbert Hoover Dike, which presently surrounds the Lake, and the 8-2, S-3, and S-4 pump stations, the stations at issue in this litigation. (See Joint Pretrial Stip , Attach. 5B 11 35; Trial Tr Jan 9, 2006, 191:13-18, 211:12-20; Trial Tr Jan 18, 2006, 104.11-18). 6la APPENDIX D wetland. (See Trial Tr Jan. 9, 2006, 157:10-168:21; Trial Tr. Feb 14, 2006, 58:12-66:11; Plain. Exvs. 16A, 16B, 220). In other words, all recorded maps show some boundary between Lake Okeechobee and the area currently known as the EAA. (See id.). The southern shoreline of the Lake was surveyed by J. M. Kreamer in 1892 (Plain. Ex. 220), and by John W. Newman in 1910. (Def Ex. 16D). It was officially surveyed by the State of Florida from 1914-17 (the “F. C. Elliot Survey”). (Plain. Ex. 55). The conclusions of the F-C. Elliot Survey are referenced in a case that required the court to determine the historical boundary between the Lake and the marshlands to the south of the Lake. (See Plain Ex. 57). On a related note, an account written in the newspaper New Orleans Democrat in 1870 references an exploring party making camp on the southern shore of Lake Okeechobee, further suggesting that the Lake, at least at times, had a distinguishable southern shoreline. (Plain. Ex. 60, p. 70). Finally, photographs of the Lake Okeechobee shoreline taken from the cupola of the Bolles Hotel in. April 1912 were entered into evidence.’ (Plain. Has. 16h 1, 162, 16E'3). These photographs depict a custard apple forest along a dry southern shoreline. (See Trial Tr Jan. 9, 2006, 170:16-174:14; Plain. Has. 1621, 16H 2, 16K). 6 The Bolles Hotel was located on the southern shore of Lake Okeechobee on the western bank of the Rita River. (See Trial Tr. Jan 9, 2006, 167:24-169:12), Its location is shown on the Newman Survey of 1910. (See Plain Ex 16D), It was constructed by Richard Bolles, an early Everglades land speculator. (Trial Tr Jan 9, 2006, 169:8-12) 62a APPENDIX D Notwithstanding these early maps, accounts and photographs, the shoreline was not as well-defined as Plaintiffs contend. Lieutenant J.C. Ives, for example, described the Lake as covering nearly 1,200 square miles, nearly double the current size of the Lake. (See Def Ex. 206, p. 38). Moreover, he observed that “(fJrom Cypress Point around toward the south and south-west, the shore is much less clearly defined. The Everglades form the general boundary, but no distinct line marks the division between this region and the surface of the lake; the southern portion of the latter being much grown up with grass [sic].” (/d.).’ Similarly, a report of the Board of Commissioners of the Okeechobee Flood Control District noted that historically “the south shore of the Lake was not clearly defined being low, irregular and swampy.” (Def Hx. 213, p. 12). Moreover, there was evidence adduced at trial that the 1912 Bolles Hotel photograph, the most convincing evidence of a well-defined southern shoreline, was taken during the annual dry season, when the Lake typically contracts. (See Trial Tr. Feb. 10, 2006, 90:4-7). Additional evidence suggests that the area was experiencing a drought during the period in question. (See id., 90:8-12, $1:7-10). Finally, the photographs were taken after 20 years of drainage operations and thus do not provide a truly accurate depiction of the Lake and the EAA in 7. Ives’ memoir acknowledges that the short time in which the map was compiled “precluded anything hke a thorough investigation as to what is now known in the region in question.” (Def Ex 206, p. 6). 63a APPENDIX D their natural states. (See id., 89:21-25; Trial Tr, Feb. 13, 2006, 17:20-23). That the historical accounts of the southern shoreline are inconsistent is not surprising. The size of Lake Okeechobee varied significantly depending upon meteorological conditions within its watershed. (See Joint Pretrial Stip., Attach. 5B 138; Trial Tr Jan. 13, 2006, 52:18-23; Trial Tr. Jan. 18, 2006, 104:3-5; Trial Tr. Jan. 19, 2006, 16:20-23; Def Ex. 206, pp. 6-7). The characteristics of the Lake and the Everglades varied seasonally, decadally and otherwise, through extreme cycles of flooding and drought. (See Joint Pretrial Stip., Attach. 5B 91 38; Def Ex. 206, p. 7). Even today, Lake Okeechobee periodically recedes within the boundary established by the Herbert Hoover Dike (“Dike”), which extends around the rim of the Lake. (See Joint Pretrial Stip., Attach. 5B 140; Trial Tr. Feb. 14, 2006, 78:1-24). The undersigned concludes that, historically, observable distinctions existed between Lake Okeechobee and the vast wetlands to the south of the Lake. A contrary conclusion would fly in the face of the evidence presented. However, the precise point or points dividing the Lake’s surface waters from the wetlands to the south varied drastically depending upon numerous conditions, explaining, at least in part, the inconsistent accounts of the area that have survived. 64a APPENDIX D B. Development of the Everglades |. Harly Development Beginning in the mid 1800s, the State of Florida embarked upon legislative efforts to encourage development of the Everglades ecosystem, focusing its efforts on draining the area to increase its marketability and habitability. (See Trial T'r. Jan. 13, 2006, 57:9-13; Trial Tr. Feb. 8, 2006, 204:11-16). Land reclamation was the single-minded purpose behind the efforts. (See Trial Tr. Feb. 10, 2006, 94:17-95:4, 95:20-23). To further the drainage activities, canals were constructed connecting the Lake to the Gulf of Mexico, (Jomt Pretrial Stip., Attach. 5B 910). The overarching goal of the canal construction was to move water from Lake Okeechobee to tidal waters. (See id.). The theory was that if Lake Okeechobee could be drained, then the Everglades would eventually dry out. (See Joint Pretrial Stip., Attach. 5B 19.9, 10; Def Ex. 203, pp. 56, 65). By 1912, construction had begun on three major canals, the North New River, Hillsboro, and Miami Canals. (See Joint Pretrial Stip., Attach. 5A 9 10). The 8. Two canals were constructed in the 1880s. One canal, named the 3 Mile Canal, connected Lake Okeechobee to Lake Hiekpochee. (Trial Tr Feb 14, 2006, 16:20-23). The other canal, located in the area of the present Miami Canal, extended approximately nine to ten miles into the Everglades from the Lake. (/d , 16:24-17:1). 65a APPENDIX D canals were connected to the Atlantic Ocean by April 1917. (See Trial Tr. Jan. 18, 2006, 107:3-5). The purposes of constructing the canals were to lower the elevation of the Lake, drain the rich muck soils south and east of the Lake, and to foster navigation. (See Joint Pretrial Stip., Attach. 5A 97191 10, 19). To further the effort, the Everglades Drainage District (established in 1913) constructed hundreds of miles of small drainage canals throughout the Everglades. (See id., Attach. 5B 19 10, 12). The early private and publie drainage canals were incapable of controlling flooding. (See Joint Pretrial Stip., Attach. 5B 1113). Problems with flooding reached an apex in 1926 and 1928, when hurricanes killed over 2,500 people living in towns just south of Lake Okeechobee. (See id.; Trial Tr: Feb. 10, 2006, 95:12-15; Def Ex. 218, p. 7; Def Ex. 208, pp. 8-9). Congress responded to the hurricanes of the 1920s by authorizing construction of the Dike. (See Trial Tr. Feb. 8, 2006, 204:21-23). The initial authorization contemplated building a substantia! dike system on the southern shore of Lake Okeechobee and a smatler dike system on the northern shore of the Lake. (See id., 204:23-205:1). By 1937, construction along the southern shore was substantially completed. (See id., 205:2-5). The Dike, however, proved incapable of adequately controlling flooding. Hurricanes in the 1940s caused Lake waters to overflow the newly constructed Dike, flooding the surrounding areas and severely damaging the Dike in the process. (See Trial Tr Jan. 13, 2006, 66a APPENDIX D 59:12-19; Trial Tr, Feb. 8, 2006, 205:6-10). In 1947 and 1948, ninety percent of southeastern Florida, from Orlando to the Keys, was flooded. (See Joint Pretrial Stip., Attach. 5B 913). Indeed, after the 1947 hurricane, there were reports of many Florida residents being forced te live on the second floors of their homes for up to nine months. (Trial 7T'r Jan. 13, 2006, 59:15-16). In addition to the flooding problems, the drainage of Lake Okeechobee and the Everglades produced other unintended consequences. When the areas surrounding Lake Okeechobee were drained, the soils dried out and thousands of acres of land were destroyed by fires. (See Joint Pretrial Stip., Attach. 5B 114). The fires caused loss of soil material that had taken hundreds or thousands of years to aecrete. (Trial Tr Jan. 19, 2006, 169:5-7). Fires dirtied the air to such an extent that health warnings were issued in Dade County.’ (Trial Tr eb. 10, 2006, 112:13-15). Uncontrolled drainage caused additional problems through the lowering of the water table. (See Joint Pretrial Stip., Attach. 5B 111). The lowered water table allowed the ocean saltwater to intrude in areas where fresh water had previously been. (See id.; Trial Tr. Jan. 20, 2006, 96:16-97:5). Saltwater intrusion contributed to the destruction of well fields and lands along the east coast of Florida. (See Joint Pretrial Stip., Attach. 5B 7 34). 9 Dade County has sinee been renamed Miami-Dade County. 67a APPENDIX D 2. C&SF Project In the 1930s, the State developed a comprehensive plan for flood control and water supply, Known as the “re-watering plan.” The plan dedicated the northern portion of the Everglades (what has become known as the EAA) for reclamation, and dedicated the southern portion of the Everglades (what have become the Water Conservation Areas) for water supply and storage to protect and provide water supply to the lower east coast of Florida, from West Palm Beach to Homestead. (See Trial Tr. Jan. 20, 2006, 114:13-115:18). As concerns arose over the health of the Everglades and the inability of the “re-watering plan” to address the problems, the Central and South Florida Project for Flood Control and Other Purposes (“C&SF Project” or the “Project”) was adopted. (See Joint Pretrial Stip., Attach. 5A 4% 37). Congress authorized the C&SF Project in 1948." (See id., Attach. 5B 9115; Trial Tr Jan. 13, 2006, 60:2-3, 14-16; Trial Tr Jan. 18, 2006, 80:17-19; Def Eas. 1,205). The C&SF Project is a multi-purpose project that provides flood control; water supply for municipal, industrial, and agricultural uses; water supply for the Everglades National Park; protection from saltwater intrusion; and protection of fish and wildlife resources." 10. For a vamety of reasons, several components of the C&SF Project that were originally planned have not been constructed. (See Trial Tr Jan. 20, 2006, 102:1-9). 11. Congress stated the purposes of the C&SF Project, in relevant part, as follows: (Cont'd) 68a APPENDIX D (See Joint Pretrial Stip., Attach. 5B 117; Trial Tr. Jan. 13, 2006, 149:23-150:28; Trial Tr Jan. 18, 2006, 80:10- 15; Def Ex. 232, p. i; Def Ex. 205, pp. 2-3, 50). Waste disposal is not one of the designated purposes of the C&SF Project. (See Trial Tr. Jan. 13,2006, 150:24-153:3; Trial Tr. Jan. 20, 2006, 118:20-25)).! The C&SF Project covers an area of approximately 12,000 square miles. (See Trial Tr. Jan. 18, 2006, 80:6- 7). Water is managed through the use of water contro! (Cont'd) Construction program. The comprehensive plan is a long-range plan for the control and use of water resources of most of central and southern Florida. * * * The flood problems of central and southern Florida are closely interrelated with the development of water and land resources of the entire area; this report therefore considers aj] related problems of water control and use. A long-range plan of this kind for flood protection and water quality is urgently needed now, so that development of the region ean proceed in an orderly manner which will preserve its resources of water and land for future generations. (Def Ex 205, pp. 14, 45, 58). 12. The water moved through C&SF structures, however, contains waste products (See Trial Tr Jan 13, 2006, 162:16- 163:12) 69a APPENDIX D structures including the Dike, levees, canals, spillways, culverts, pump stations and other water diversion facilities. (Joint Pretrial Stip., Attach. 5B 9 20)." These water control structures were designed and developed along general watershed basin concepts. (Trial Tr. Jan. 25, 2006, 23:10-14). The C&SF Project is responsible for moving billions of gallons of water daily. (Joint Pretrial Stip., Attach. 5B 4% 24). The SFWMD pump stations are flow diversion facilities, the purpose of which is to change the movement, flow and circulation of waters. (Trial Tr, Jan. 20, 2006, 110:12-22). As the local sponsor for the C&SF Project, the SFWMD is responsible for operating and maintaining most of the Project’s structures, including the 8-2, S-3, and S-4 pump stations at issue in this case. (Trial Tr. Jan. 19, 2006, 78:14-19). However, in operating the structures, there is a tremendous amount of eoordination between the Corps and the SFWMD. (See Trial Tr. Jan. 18, 2006, 85:5-11)."4 13. The system is comprised of over 1,000 miles of canals, over 1,000 miles of levees, approximately 150 structures and 15-30 major pump stations. (See Trial Tr Jan. 13, 2006, 61:16- 19). 14. The Corps developed the water control plan for the operation of the C&SF system. The water control plan contains information governing the regulation of the lakes and reservoirs in the system and contains operating criteria for the structures and canals within the system. (See Trial Tr Jan 18, 2006, 838:1-84:1; see also Def Has 215-18). 70a APPENDIX D The C&SF Project has successfully reclaimed much of the land in South Florida. (Joint Pretrial Stip., Attach. 5B 49 25). Today, millions of people live within the flood plain of the Everglades ecosystem,” which would not be possible without the flood protection and stable water supply provided by the C&SF Project. (/d.). C. Current Description of Lake Okeechobee and the Surrounding Areas 1. Lake Okeechobee The efforts to develop South Florida had a profound effect on the Lake and the Everglades. The present ecosystem scarcely resembles the natural system. Lake Okeechobee, a large shallow lake, remains the central feature of the Everglades ecosystem and is recognized as its liquid heart. (Joint Pretrial Stip., Attach. 5B 91 30). The Lake is a key component of the South Florida Kissimmee-Okeechobee-Everglades surface water hydrologic and ecological system. (See id., Attach. 5A 1 63). The system begins in Central Florida near Orlando, extends southward through the Kissimmee Chain of Lakes, the Kissimmee River, and Lake Okeechobee, and continues southward through the Everglades into Florida Bay. (/d., Attach. 5A 163). The ecosystem is an immense, integrated system of 15. Indeed, in the early 20th century, vast amounts of what is now downtown Miami remained under several feet of water. (Trial Tr Jan 19, 2006, 184:5-21). Tla APPENDIX D connected surface and ground waters that covers over 15,000 square miles. (/d., Attach. 5B 1 5). Lake Okeechobee spans an area of approximately 730 square miles and has an average lake-wide depth of nine feet. (See Joint Pretrial Stip., Attach. 5B 140; Trial Tr. Jan. 18, 2006, 103:23-24; Plain Ex. 20, p. 2). It is the largest body of fresh water in the southeastern United States and the second largest freshwater lake within the continental United States. (See Joint Pretrial Stip., Attach. 5B 9 30). The parties have stipulated that the Lake is a navigable water (see id., Attach. 5A {| 5), as that term is defined in the CWA and its regulations. See 33 U.S.C. § 1362(7); 40 C.ER. § 230.3(s); 33 C.FR. § 328.3(a). Lake Okeechobee is divided into six regions. The “pelagic” region is characterized by open water and a muddy or sandy bottom. (See Joint Pretrial Stip., Attach. 5B {| 44). Two near-shore regions (north and south), contain a high density of submerged plants when water levels in the Lake are low and periodic algal blooms when water levels are high. (/d.). Three littoral regions,’ located in the northern and southern portions of the Lake and at Fisheating Bay, contain their own unique vegetation structures and water quality. (/d.). Significant chemical, physical and biological differences 16. A littoral region is defined as an area in which the bottom of a lake 1s covered by macrophytes (plants that are visible). (See Trial Tr Jan 9, 2006, 83:13-25). 72a APPENDIX D exist between each Lake region and even within each region. (See id., | 46). The Lake has several hydrological and ecological functions. It functions as a reservoir to collect and supply water to the urban, agricultural and natural systems throughout the southern Florida peninsula. It provides flood protection while serving as a multimillion dollar sport and commercial fishery. It also provides a habitat for wading birds, migratory waterfowl, and the federally endangered Everglades Snail Kite. (Joint Pretrial Stip., Attach. 5B 9 33). As noted, Lake Okeechobee functions, in part, as a reservoir. The goal of any reservoir “is to store excess water from times when you don’t need it and to release it during periods when you do.” (Trial Tr. Jan. 20, 2006, 73:22-24). In order to carry out its storage functions, the water level of the Lake is generally brought to its lowest point at the end of May, creating excess storage capacity that may be utilized for flood control purposes during the rainy season. (See id., 72:14-73:2). The water levels in the Lake are permitted to rise during the rainy season and the excess water is made available to different users for a variety of purposes. (See id., 72:23- 73:2). Beyond using the waters for agricultural and/or municipal purposes, the ability to store and later release the water is critical to avoiding saltwater incursions onto the land. (See id., 97:6-24). Virtually the entire Lake is enclosed by the Dike, a 27 to 42-foot high, and up to 300-foot wide barrier that 73a APPENDIX D physically separates the Lake from the lands surrounding the Lake. (Trial Tr. Jan. 13, 2006, 75:1-2; Trial Tr. Feb. 9, 2006, 21:9-24). A portion of the Dike was built within the shoreline of the historical Lake. (Trial Tr. Jan. 18, 2006, 103:21-23; see also Trial Tr. Jan. 10, 2006, 142:1-6). The Dike is made of a soil matrix." (See Joint Pretrial Stip., Attach. 5B 19 33, 34; Trial Tr. Feb. 8, 2006, 206:5-7, 207:21-25). It prevents the Lake from expanding and contracting as it would under natural conditions. (See Trial Tr. Jan. 25, 2006, 46:14- 17). The Dike serves as a dual functioning dam, providing water storage in Lake Okeechobee and protecting the surrounding communities from flooding. (Joint Pretrial Stip., Attach. 5B 1 34). A rim canal surrounds the southern inner edge of Lake Okeechobee. (7'rial Tr. Jan. 9, 2006, 120:12-16). In most places, the rim canal is directly adjacent to the Dike. (Trial Tr, Jan. 10, 2006, 82:14-15). The rim canal was dug out to provide material for construction of the Dike. (Trial Tr. Jan. 9, 2006, 120:17-19). The S-2 and S-3 pump stations pump water directly from the canals into the rim canal. (Trial Tr. Jan. 10, 2006, 82:16-17). A series of canals'* have been constructed that intersect the Dike at the southern end of the Lake. The 17. The Dike consists of a number of materials, including sands, shells, limestone, limestone fragments, silts, and peat. (Triai Tr. Feb 8, 2006, 207:21-25). Most of the materials of which the Dike is composed were hydraulically dredged from the area. (id , 206:6-11). 18. The parties have stipulated that the EAA canals are navigable waters. (See Joint Pretrial Stip , Attach 5A 911). 74a APPENDIX D largest canals, the North New River, Hillsboro and Miami Canals, extend through several basins, from the southern side of Lake Okeechobee through the EAA, the Water Conservation Areas, the lower east coast communities or the remnant Everglades, and ultimately to the bays and ocean. (Joint Pretrial Stip., Attach. 5B 1 22; Def Ex. 1). Smaller canals manage more local} waters. The C-20 Canal, for example, is used to manage the waters of the S-4 basin, a basin that includes the City of Clewiston and the surrounding agricultural lands. (/d., 1 28). In all, there are approximately 43 structures that intersect the Dike, allowing water to flow into and/or out of the Lake. (See Trial Tr. Jan. 18, 2006, 92:7-9). There are 19 points that allow outflow from the Lake (five represent primary outflow points and 14 also allow inflow). (See 2d., 92:20-93:1, 93:2-6). Fisheating Creek is the only uncontrolled inflow source to the Lake. (See id., 93:11-18). The Lake has no uncontrolled outflow points. (See id., 93:25-94:1). It is beyond dispute that the natural storage capacity of the Lake basin has been lost as a result of the man-made modifications to the system. (See Trial Tr. Jan. 26, 2006, 20:2-4, 22:3-16). 2. The KAA Parts of Lake Okeechobee’s original lakebed — separated from the Lake by the Dike — and portions of the northern Everglades marshes, were designated by che C&SF Project as the EAA, which was to be reclaimed for public and private land uses. (Joint Pretrial Stip., 75a APPENDIX D Attach. 5B {i 36). The EAA comprises 630,000 acres between the southern boundary of the Dike and the northern boundaries of the Water Conservation Areas. (See id., 1 37). The EAA is a highly productive agricultural region extending from the south shore of Lake Okeechobee to the northern levees of the conservation areas (of the Everglades). The Lake supplies irrigation water to the EAA. (Joint Pretrial Stip., Attach. 5A 143). The EAA communities and land uses were, and are, fully dependent upon the Lake for their water supply and flood control. (See id., 11 43, 53). Muck soils predominate in the EAA. Prior to drainage operations, materials were deposited in the waters; those materials were, in turn, absorbed by the soil. (See Trial Tr Jan. 9, 2006, 45:11-16). The soils of the Everglades were formed under wetland conditions. ‘The water that covered the soil surface much of the year greatly reduced oxygen availability to microorganisms that derive their energy by oxidated decomposition of carbon compounds. Organic matter accumulated faster than it decomposed forming the Everglades Histosols. When the area was drained for settlement and agricultural use, oxygen permeated the soil mass, decomposition accelerated, and the organic matter began to decompose faster than it accumulated. This 76a APPENDIX D caused the surface elevation to fall, a phenomenon known as subsidence. (Plain. Ex. 128, pp. 37-38). The muck soils are naturally very high in phosphorous. (See Trial Tr. Feb. 10, 2006, 61:3-15). D. Water Flow in the Everglades Today, almost all water flow in the Everglades is through man-made conveyance structures. Given that the system has been significantly modified from its natural state, it is important to distinguish between the flow of water today, flow that is primarily regulated by the SFWMD (along with the Corps), and the natural flow of water through the system. 1. Natural Water Flow Historically, Lake Okeechobee’s surface water, sub- surface flow, and localized rainfall supplied water for the Everglades. (See Joint Pretrial Stip., Attach. 5B 4 7). In its natural state, the Everglades was a unified hydrologic system. (See, e.g., Trial Tr Jan. 9, 2006, 208:16-209:5; Trial Tr. Jan. 10, 2006, 140:15-141:4; Trial Tr. Jan. 11, 2006, 75:5-18; Trial Tr, Feb. 8, 2006, 203:25- 204:7; Trial Tr. Feb. 10, 2006, 78:22-79:6, 81:8-22, 94:3-7; Def. Ex. 207, p. 21). Water moved freely between surface and ground water. (See Trial T'r. Feb. 10, 2006, 82:6-16). Prior to the man-made modifications to the system, water generally flowed slowly south, over the flat South 77a APPENDIX D ilorida landscape to the sea.’ (See Joint Pretrial Stip., Attach. 5A 97). Land to the south of the Lake slopes very slightly to the south. (See Trial Tr. Jan. 19, 2006, 177:4-10). In fact, the slope is far flatter than the slope of a sidewalk. (See id., 177:11-19). Due to the nearly flat slope of the land, water flowed south at an exceedingly slow pace. (/d., 178:5-12). This historic water flow is depicted on a United States Geological Survey map that was introduced into evidence (the map was made using SFWMD data). (Plain. Hx. 58; see also Trial Tr. Jan 19, 2006, 34:17-36:25). Historically, the water of the Lake would rise until it overtopped a natural muck berm along the southern shoreline, and then it would spill into the vast marsh known as the Everglades. (See Joint Pretrial Stip., Attach. 5B 147a; see also Trial Tr. Jan. 13, 2006, 51:18 17). Water in the Lake would overcome the levy when the Lake reached an elevation of 21.5 feet. (Trial Tr. Jan. 9, 2006, 208:25-209:5). During the rainy season, water from Lake Okeechobee would flow in a gradual 19. When the Miami Canal was first dredged across the Ki verglades from its entrance at the Rita River to the headwaters of the Miami River, a navigation lock was constructed in the canal just a short distance south of the southern shore of Lake Okeechobee. (See Trial Tr Jan 9, 2006, 182:8-189:1; Plain Here 16h’, 16G). A photograph of the lock shows the doors opening to the north. (See Trial 77 Jan 9, 2006, 186:7-14; Plain has 16G,42, 46) Lock doors are designed to open against the direction of flow (ser Plaun Bas 42, 46), confirming that the direction of Mow in the Miam) Canal was generally from the north to the south. (See 7'ria/ Tr Jan. 9, 2006, 186:11-14; Plaaw Bas 16G,42, 46) 7a APPENDIX D sheet through the Everglades to Florida Bay. ” (See id; Trial Tr. Feb. 10, 2006, 81:18-19). Oceasionally (during some years) the water would flow across the coastal ridge to the Atlantic Ocean. (Trial T'r. Jan. 13, 2006, 51:18-22), Localized events such as wind or rainfall could affect the general southward flow of water over short periods of time. (Trial Tr, Jan. 19, 2006, 178:13-179:6). In other words, the southward flow, at least historically, was intermittent. (See id., 180:7-18). During severe windstorms, hurricanes or other metcorological events, water could flow north from the Everglades to the Lake. (See, e.g., Trial Tr. Jan. 9, 2006, 193:4-20; Trial Tr. Jan 10, 2006, 156:22-158:16; see also Plain, Nae. 16C, p. 3; Def Bax. 302,97). There are historic accounts of people observing wind and water conditions causing water to flow in this direction. (See Trial Tr Jan. 9, 2006, 212:2 18, 216:6-25). Water was also capable of seeping through the porous soil matrix of the Everglades in both directions, «.e., from the Lake to the Everglades and from the Everglades to the Luke. (See Trial Tr Jan 13, 2006, 53:10-13; Tral Tr Feb. 10, 2006, 81:13-17). 20. “Florida Bay is a shallow inner-shelf lagoon located at the southern end of the south Florida watershed, It is an area where fresh water from the Everglades mixes with the salty waters from the Gulf of Mexico to form an estuary that is surrounded by mangrove forests and encompasses over 200 mangrove islands.” The Flonda Bay Education Project, http www.floridabay.org/intro.shtml 79a APPENDIX D 2. Water Flow Today a. Surface Water Flows Generally Most water flows today are regulated. As a managed system, the natural flow of water has been replaced by a series of man-made structures, and water is now routed through a very complex series of conveyance systems. (See Trial Tr Jan. 26, 2006, 20:1-6). The waters are managed as a whole. (Joint Pretrial Stip., Attach. 5B 4 21). Navigable waters in the C&SF canals and waters in the Lake certainly intermingle, whether by natural or man-made forces. (Trial Tr. Jan. 12, 2006, 88:23-89:17). For example, water in the Lake is released into the canals at certain times and may be pumped back into the Lake at other times. (/d.). However, whereas historically the water flowed almost exclusively to the Everglades, today much of the water flow is directed to the coast. (Trial Tr Jan. 10, 2006, 25:20-25). Because water flows on a downgrade, water in the Lake flows by gravity to the south whenever the SFWMD opens the gated spillways and culverts that feed water from the Lake into the canals. (See Trial Tr: Jan. 12, 2006, 82:2-83:3; 89:8-13). Water from the canals generally is not capable of flowing into the Lake because it would have to flow on an upgrade. (7'rial Tr Jan. 10, 2006, 112:4-12: Trial Tr. Jan. 17, 2006, 7:1-8:1). Thus, as in its natural state, water generally flows from Lake Okeechobee south to the FAA. (See Trial Tr. Jan. 18, SOa APPENDIX D 2006, 96:24-97:4). Indeed, Plaintiffs’ witness, Herbert Zebuth, who spent the bulk of his extensive career working on issues concerning Lake Okeechobee, testified that “I have never heard anyone talk about the Everglades flowing into Lake Okeechobee until this lawsuit was filed.” (Trial Tr. Jan. 17, 2006, 9:22-23). Nevertheless, the hurricane gates adjacent to the S-2 and S-3 pump structures may allow gravity flow from the canals into the Lake when the water level in the Lake is lower than the water level in the canals. (See Trial Tr. Jan. 13, 2006, 118:1-5; Trial Tr. Jan. 17, 2006, 8:2-4; Plain. Bx. 115, p. 170). Under such circumstances, and without the aid of the pump stations, surface water in the EAA canals ean, and does, flow north into Lake Okeechobee. Such instances, however, remain very rare. (See Trial Tr, Jan. 18, 2006, 97:4-13; Trial Tr. Jan. 19, 2006, 37:18-21; Plain. Ex. 115, p. 170; Def Ex. 208, p. 57; Def Ex. 202, pp. 335, 345-47, 385-86, 406, 411, 551; Def Ex. 207, p. 23). Moreover, the frequency of northern flow has been reduced by the Corps’ removal of “humps” in the canals that had previously served as impediments to the canal waters’ steady southward flow. (See Trial Tr. Jan. 18, 2006, 114:2-12; Trial Tr. Jan. 25, 2006, 25:13- 15). Every year, a substantial amount of water is discharged from the Lake to tide (7.ec., large quantities of Lake water are dumped into estuaries) in order to reduce the amount of water in the Lake, for example, when the water level in the Lake becomes too high. (See Trial Tr. Jan. 19, 2006, 51:2-8). Obviously, the Sla APPENDIX D discharges, resulting in the loss of, on average, approximately 1.7 billion gallons of water to tide per day from the Everglades system, are undesirable. (See Trial Tr. Jan. 20, 2006, 145:14-16). However, at present, it appears that the losses are unavoidable. Because Florida experiences periods of heavy rainfall that produce water that the system is ineapable of assimilating, the excess water must be discharged. (See Trial Tr. Jan. 19, 2006, 163:3-15). The rainy periods are followed by dry periods during which water becomes scarce. (See 2d.). The problem is exacerbated by the inability to predict weather conditions with any degree of accuracy. (See id., 168:9-11, 169:17-170:14). b. Surface Water Flow in the EAA The Hillsboro, North New River, and Miami Canals, as well as the C-20 and C-21 Canals, collect water that is drained from their respective basins. Industrial, municipal, and construction activities are conducted within the basins. Thus canal water contains byproducts of industrial, municipal and construction activities. (Trial Tr Jan. 13, 2006, 113:14-115:19). Agricultural activities contribute immensely to the amount and direction of water flows in the EAA. When there is excess water on the farmlands, farmers pump the excess water into the canals. (See Trial Tr Feb. 10, 2006, 39:238-41:10).?) Conversely, when the farmers 21. There are approximately 300 pump stations used by the farmers in the EAA that discharge water into the SFWMD's main eanals. (Trial Tr Feb 9, 2006, 32:2-A). 82a APPENDIX D require water for irrigation, they withdraw water from the canals through a variety of mechanisms. (See Trial Tr, Jan. 25, 2006, 12:21-13:24). Each activity — taking and discharging water — requires a SFWMD permit. (See Trial Tr. Feb. 9, 2006, 102:4-104:15).7* ce. Sub-Surface Water Flows The Lake and the EAA canals are also hydrologically connected through seepage (7.e., the flow of fluid through soil pores). The groundwater and surface waters of the Everglades are highly interrelated (7'ral Tr. Jan. 20, 2006, 111:2-8), and are only truly separated in isolated areas. (See id., 111:2-8, 120:7-13). Moreover, water flows through the Dike in both directions, that is, from the Lake to the EAA and vice-versa. (See Trial Tr: Jan. 13, 2006, 109:14-110:6; Trial Tr, Feb. 8, 2006, 208:2- 3, 213:3-24; Trial Tr. Feb. 9, 2006, 7:17-20, 9:20-10:2, 24:1- 3).35 Seepage is possible because the material of which the Dike is constructed is porous. (See Trial Tr. Feb. 8, 2006, 209:2-210:4). 22. Generally, farmers drain their lands during the wet season and irrigate their lands during the dry season, (Jovnt Pretrial Strp., Attach. 5A 9 44). Farmers seek to maintain an optimal level of moisture in their fields; a level that depends upon the particular crop being cultivated and the stage within the planting cycle. (See Trial Tr Feb 10, 2006, 53:2-54:1). 23. Such seepage is common to all lakes. (Tral Tr Jan 13, 2006, 109:25-110:1; Trial Tr Feb 9, 2006, 11:4-6). 3a APPENDIX D The direction that water will flow, both above and below the ground, depends on the soil matrix (porosity of the soils), and the difference in water level (water always flows from higher to lower elevations). (See Trial Tr. Jan. 18, 2006, 97:8-13; Trial Tr. Feb. 8, 2006, 208:4- 209:16). Although seepage generally occurs from the Lake to the EAA (see Trial Tr Feb. 9, 2006, 21:2-8), it can also flow in the opposite direction. (See Trial Tr: Feb. 8, 2006, 213:22-25; Def Ex. 244, pp. 29-30, 32, 73). Comprehensive studies have ching ari water seepage through the Dike. (See Def Ews. 248, 249). The amount of seepage through the Dike, however, is small in comparison to the amount of water moved by the pump stations. (Trial Tr. Feb. 9, 2006, 13:2-5). Indeed, the amount of seepage is so small that the Corps does not consider seepage losses in computing the Lake's monthly water budget (total water flows into and out of the Lake). (Def Ex. 211, p. 23)." The amount of seepage through the Dike is constantly changing, depending upon a variety of factors including, most notably, the elevation of the Lake.” (See Trial Tr. Feb. 9, 2006, 6:25- 7:9). “ 24. Specifically, the water budget states that “seepage is not considered as a loss from Lake Okeechobee because it is only a minor amount of the normal range of operations.” (Def Ex 211, p. 23). 25. The elevation of water in the Lake is almost always higher than the elevation of water in the canals, the exception heing during pemods of extreme drought (Jornt Pretroal Stip , Attach. 5A 917). 84a APPENDIX D E. The Pump Stations Although the water flows in the Everglades are controlled by numerous conveyance structures, this case focuses upon only three of the structures, the 8-2, S-3, and S-4 pump stations, which are located at the southern end of the Lake. 1, Description of Pump Stations The S-2, S-3, and S-4 pump stations are built into the Dike where the Dike intersects the EAA canals. (See Joint Pretrial Stip., Attach. 5A 912; Trial Tr. Feb. 8, 2006, 205:25-206:3). The pump stations, which were constructed by the Corps (see Trial Tr. Jan. 19, 2006, 57:7-10), are flow diversion facilities that change the movement, flow and circulation of the waters they control. They convey water from the Miami, North New River, Hillsboro, and C-20 and C-21 canals to Lake Okeechobee. (Joint Pretrial Stip., Attach. 5A 113). The rim canal, which runs along the south shore of the Lake, is the immediate receiving body of water from the pumps. (Tral Tr. Jan. 10, 2006, 82:16-17; Trial Tr, Jan. 19, 2006, 75:16-19; Plain. Ex. 115, p. 170). The pumping of water from the S-2, S-3, and S-4 pump stations into the Lake has long been described as “backpumping.” (See Def Hx. 110, cover). Backpumping by the SFWMD has artificially added three basins totaling over 400 square miles to the watershed of Lake Okeechobee, all of which would have drained to either the south or west under natural conditions. (See Plain. 8Sa APPENDIX D Ex. 110, p. 1).*° The S-2, S-8, and S-4 pump stations have the capacity to pump excess drainage into the Lake from the northern one-third of the EAA.”’ (See Plain. Ex. 115, p. 166). The southern two-thirds of the EAA are drained by pump stations S-5A, S-6, S-7, and S-8, which pump water into the Water Conservation Areas. (See 2d.). The distance between the intake of water and outflow of water through the S-2, S-3, and S-4 pump stations is less than 60 feet. (See Joint Pretrial Stip., Attach. 5B 9 27). When the pumps are turned on, they immediately lower the water level in the canal at the entrance to the pump station (Tnal Tr Jan. 25, 2006, 14:7-15), and the water is thus artificially induced to flow by gravity toward the pump station. (See Trial Tr. Jan. 20, 2006, 131:22-132:5). The pump stations are designed with the capacity to remove 3/4 of an inch of water (rain) per day from their respective basins. (Joint Pretrial Stip., Attach. 5A 916; Trial Tr. Jan. 13, 2006, 64:9-11). The pump stations convey “navigable waters” without subjecting the waters to any intervening industrial, municipal or commercial use. (See Joint Pretrial Stup., Attach. 5B 9 2; see also Trial Tr. Feb. 12, 2006, 102:10-12). Moreover, the pump stations do not introduce anything to the water as it moves through the stations. (See Joint Pretrial Stip., Attach. 5B 4 3). 26. The calculations are based upon the pumps operating at full capacity. 27. The stations do not necessamly pump water from the entire area. 86a APPENDIX D All constituents in the waters transferred by the S-2, S-3, and S-4 pump stations (e.g., phosphorous and nitrogen) are already present in the waters when they enter the pumps, either because they occur naturally or because they were introduced to the waters by some other source or land use upstream of the pump stations. (See id., 1 28). Neither the disposal of waste (Trial T'r. Jan. 13, 2006, 150:24-151:18), nor the assimilation of waste (Trial Tr. Jan. 20, 2006, 118:20-25), may be properly characterized as a goal of the SFWMD’s backpumping activities. Each pump station contains three or four pumps, each of which is powered by a diesel engine approximately the size of three tractor-trailer engines. (Trial Tr. Jan. 12, 2006, 65:19-66:8; Trial Tr, March 2, 2006, 83:11-16). Each engine, in turn, drives a pump with an impellor that is 12 feet in diameter. (Trial Tr. Jan. 12, 2006, 65:17-66:2). The pumped water is discharged through a tube. (See Trial Tr, Jan. 25, 2006, 29:16-30:1). Massive quantities of water may be moved through the S-2, S-3, and S-4 pumps (each pump is capable of transporting approximately 900 cubic feet of water per second). (See Trial Tr Jan. 12, 2006, 66:19-24; Trial Tr Jan. 13, 2006, 80:16-17). The flow rate from just one of the pump stations operating at full capacity is comparable to the flow of a medium-sized Florida river. (See Trial Tr Jan. 12, 2006, 67:4-6). The S-2 pump station, located at the northern end of the Hillsboro and North New River Canals, was designed to pump excess water from the 180 square mile 87a APPENDIX D S-2 drainage basin transected by the canals. (Def Ex. 218, p. A-S2-1). The S-2 basin includes agricultural areas and the cities of South Bay and Belle Glade. (Def Fx. 200, p. 29). The S-3 pump station is located at the northern end of the Miami Canal and was designed to pump water from the surrounding 129 square mile S-3 basin. (Def Ex. 218, p. A-S3-1). The S-3 basin includes agricultural areas and the city of Lake Harbor. (Def Ex. 200, p. 52). The dominant land use in both the S-2 and S-3 basins is agriculture. (Trial Tr. Feb. 10, 2006, 109:18-22). The S-4 pump station conveys water to the Lake from the 116 square mile S-4 drainage basin (sometimes referred to as the Nine Mile Canal Area). (Def Fx. 2/8, p. A-S4-1, A-Ind-iii). The S-4 basin includes the agricultural area to the west of Clewiston and sometimes includes the City of Clewiston. (Def Ex. 200, pp. 67, 69). The S-4 pump station conveys water from the C-20 and C-21 canals (three miles northwest of Clewiston) to the Lake. (7'rial Tr. Jan. 19, 2006, 74:15- 75:1). The water backpumped into Lake Okeechobee contains at least the following pollutants: color, nitrogen, phosphorous, total suspended solids, high biological demand, dissolved solids (including dissolved organics), low quantities of dissolved oxygen, and un-ionized ammonia. (Plain. Ex. 94, App. F; Plaaw Ex. 9, pp. 41- 46; Trial Tr. Jan. 9, 2006, 50:17-51:21, 88:4-15, 93:6-20; Trial Tr, Jan. 17, 2006, 5:16-6:24). 88a APPENDIX D 2. Reasons for Backpumping The S-2, S-8, and S-4 pump stations are integral components of the C&SF Project. (See Trial Tr Jan. 18, 2006, 97:14-19; Trial Tr. Jan. 20, 2006, 112:20-113:3; Trial Tr. Feb. 10, 2006, 102:23-103:22; Def Ka. 205, p. 42). The pump stations provide flood protection for the basins, communities and agricultural areas that they service. (See Joint Pretrial Stip., Attach. 5B 126). Water management is essential to maintaining the agricultural activity in the EAA. (See id., Attach. 5A 4 44). Indeed, the S-4 pump station is the only option for flood protection for the City of Clewiston. (Tmal Tr. Feb. 10, 2006, 110:11-12). The “tremendous majority” of backpumping episodes are meant to dispose of flood water. (Trial Tr. Jan. 138, 2006, 179:23-180:1). The trigger for backpumping occurs at the S-2 and 8-3 pump stations whenever the water at any point in the canal reaches a level of 13 feet National Geodetic Vertical Datum (“NGVD”).* (Trial Tr. Jan 20, 2006, 129:6-130:17). The trigger for backpumping at the S-4 pump station occurs whenever water in the canal reaches a level of 14 feet NGVD. (Def Ex. 200, p. 66). Flood control backpumping occurs even when the water level in Lake Okeechobee is at 18 feet (see Trial Tr. Jan. 25, 2006, 16:23-24), a level at which the integrity of the levee is called into question (see 7d., 15:25-16:24), 28. NGVD is equivalent to “above mean sea level.” 89a APPENDIX D and a level at which the Corps is making maximum “regulatory releases” to tide (7.e., dumping large quantities of Lake water into the Caloosahatchee and St. Lucie River estuaries). (7’rial Tr. Jan. 19, 2006, 40:3- 43:4; Def Ex. 218, Figures 7-1, 7-3). Failure to operate the 8-2, S-8, or S-4 pump stations during severe rain events would cause flooding in communities and farmlands throughout the S-2, S-3, and S-4 basins. (See Trial Tr. Jan. 20, 2006, 136:21-137:8). On rare occasions, backpumping occurs for water supply purposes.”” Before the SFWMD may backpump for water supply purposes, it must declare a water supply emergency. (See Trial Tr. March 2, 2006, 21:12- 17; Plain. Ex. 228). Once an emergency is declared, the Florida Department of Environmental Protection (the “DEP”) issues an order authorizing the SFWMD to backpump for water supply purposes. (Plain. H'x. 228). The SFWMD backpumped for water supply purposes in 1980-81, 1985-86, 1988-89, and 2000-01. (See Joint Pretrial Stip., Attach. 5A 153; Trial Tr. Jan. 10, 2006, 37:9-18; Plain. E'x. 228). In its report to the DEP after the 2001 drought, the SFWMD distinguished backpumping conducted for “water supply augmentation” purposes from backpumping for the purpose of flood protection, although both types of backpumping occurred within the same time period. (Plain. Hx. 29, p. 2). The SFWMD 29. Several municipalities obtain their drinking water from Lake Okeechobee. 90a APPENDIX D explained that the flood control backpumping events “were not considered part of the water supply augmentation efforts” and their effects on the Lake were thus not covered in the report. (Plain. Ex. 29, p. 2; see also Trial Tr. Jan. 17, 2006, 68:23-69:1). Kk Effects of Backpumping on Lake Okeechobee While the extent of the adverse effects of backpumping on the Lake is not conclusive, that the backpumping has adversely affected the Lake is not in dispute. It is important, however, to distinguish between backpumping today and backpumping in the past as, over the last 25 years, significant efforts have been made to reduce backpumping to the Lake. The following discussion highlights the conclusions of different studies conducted throughout the years. l. 1970s Studies Plaintiffs entered into evidence a Florida Department of Environmental Regulation (the “DER”)” study from August 1975, entitled “Effects of Backpumping from Agricultural Drainage Canals on Water Quality in Lake Okeechobee.” (See Plain. Ex. 110). The report referenced a 1971 study that found that water backpumped from the Miami, Hillsboro, and North New River Canals was the poorest quality of all 30. The Department of Environmental Regulation (the “DER”) was the previous name of the DEP See, eg , Southwest Florida Water Mgmt. Dist v Charlotte County, 774 So. 2d 903, 907 n.7 (Fla. 2d DCA 2001), Qla APPENDIX D water sources to Lake Okeechobee. (/d., pp. 8-10). The study noted that “lalerial sampling demonstrated measurable influences of the drainage water (backpumped water) throughout the South Bay area of Lake Okeechobee and several miles northward in the open water.” (/d., abstract). The DER study ultimately found that “backpumping is |] an important cause of eutrophication® for Lake Okeechobee.” (/d.). In 1978, the SEWMD authored a study entitled “Water Quality in the Everglades and its Impact on Lake Okeechobee.” (See Plain. Ex. 109). The study found that, at the rim canal — the immediate receiving body of the backpumped water — “[nlitrogen, phosphorous, and conductivity were all higher during backpumping periods, while dissolved oxygen concentrations were lower.” (/d., p. 8; see also Trial Tr. Jan. 10, 2006, 38:15-18). The study further found that the effects of backpumping became less noticeable further into the Lake. (Plain. Ex. 109, p. 8). The immediate zone of influence of backpumping did not extend more than four miles from the pumps. (See 7d.; Trial Tr. Jan. 10, 2006, 33:19-34:4). Moreover, the study concluded that from May 1973 through May 1977, the EAA contributed 15% of the total phosphorous input, and 35% of the total nitrogen input, to the Lake. (Plain. Ex. 109, p. 9) 31. IKutrophication refers to the process by which a lake becomes increasingly biologically productive (meaning: more photosynthesis takes place) as nutments are added to the water body. (See Trial Tr Jan 9, 2006, 89:3-9, 66:7-67:8), Qa APPENDIX D 2. 1981 Water Supply Backpumping Hvent In 1981, as a result of an extended drought, the Slk'WMID backpumped water for water supply purposes, The SEWMD subsequently issued a report on the effects of this backpumping event on the water quality of the Lake, (See Plain. bx. 115). Only the S-2 and S-3 stations pumped during the event. (/d., p. 166). The study found that conductivity increased at the sampling site near the S-2 and S-8 pump stations although it had decreased during the same time period throughout the remainder of the Lake. (See id., p. 173), The report noted that highly mineralized canal water remained largely undiluted as far as eight kilometers into the Lake. (/d.). The study coneluded as follows: The data presented here show that S-2 and 5-3 discharges influenced water quality in the lake at least as far as station 6, which is 14.0 km from the south shore. This indicates that these inflows affected a far greater arca than has been shown in previous studies... . The more widespread impact resulted from the diminished dilution capacity of the lake and the highly intense discharge from the EAA (Jd... p. 17%). 93a APPENDIX D 3. 1996 Backpumping Study In 1996, the SFWMD drafted a report entitled “Evaluation of Water Quality Criteria in the Everglades Protection Area.” (See Plain. Ex. 9).° The SFWMD tested thirteen water quality parameters,* comparing water quality during periods of backpumping and no- backpumping. (Plain. Ex. 9, p. 46; Trial Tr. Jan. 9, 2006, 86:21-22). The study found that there was statistically significant worsening in twelve of the thirteen water quality parameters when S-2 was operating, eight of the thirteen parameters when S-3 was operating, and ten of the thirteen parameters when S-4 was operating. (Plain. Ex. 9, p. 46; Trial Tr. Jan. 12, 2006, 52:1-56:21). However, the study also found that “[a]lthough backpumping events did transfer nutrients and other pollutants at some level into the lake, overall water quality impacts to the lake could not be established due to effects of dilution, pollutant decay, particulate settling, and nutrient uptake which were not considered in [the] study.” (Plain. Ex. 9, p. 44). 32. It does not appear that a final version of the report, if one exists, was entered into evidence 33. The parameters were: alkalinity as CaCQO3, field conductivity, dissolved oxygen, pH, total suspended solids, turbidity, total chloride, total phosphorous, ortho-phosphorous, total nitrogen, nitrate and nitrite, ammonia dissolved and total kjyeldahl nitrogen. (See Plain Ew. 9, p. 46) 94a APPENDIX D 4. 2001 Backpumping Event In 2001, drought conditions again required the SFWMD to backpump for water supply purposes. On December 14, 2001, the SFWMD submitted its “Lake Okeechobee Water Supply Backpumping and Water Supply Augmentation After Action Report.” (See Plain. Ex. 29). Herbert Zebuth characterized the 2001 study of backpumping as the most thorough he had ever seen. (Trial Tr. Jan. 18, 2006, 10:16-20, 22:6-15). The report found that “biological monitoring indicated no negative impacts of the backpumping operation on SAV [submerged aquatic vegetation] or water transparency.” (Plain. Ex. 29, p. 4). Ultimately, the report concluded that an “[a]nalysis of the data collected in the Water Quality and Biological Monitoring programs associated with the emergency final orders did not indicate adverse impacts to Lake Okeechobee attributable to the emergency water supply backpumping and flow augmentation operations.” (/d., p. 8). Furthermore, no large algal blooms were reported as a result of the 2001 water supply backpumping event. (Trial Tr. Jan. 11, 2006, 28:19-24:2). The final SFWMD study is in some respects contradictory to a draft of an article entitled “Effects of Pumping Rainfall Runoff from Agriculture Fields into Lake Okeechobee.” (See Plain. Fx. 18). The draft, which studied the effects of the 2001 baeckpumping event on Lake Okeechobee, concluded as follows: 95a APPENDIX D Water quality monitoring documented poorer light penetration and chlorophyll and nutrient levels up to an order of magnitude higher at the impact site. Along with measurable levels of six heavy metals, five pesticides were found in backpumped water. When compared with data from backpumping in the 1970's, the magnitude of difference in nutrients between backpumped and reference water was comparable to 2001. Although not lethal, there were some negative ecological impacts of backpumping on SAV [submerged aquatic vegetation] communities of Lake Okeechobee. There appeared to be some impacts on Vallisneria, with a lower number of blades (and smaller photosynthetic surface area) in the impact water after two weeks. By four weeks, however, these differences disappeared. Results from the short duration of these incubations does [sic] not indicate whether long- term impacts on Vallisneria might be apparent. In contrast, there was significantly lower biomass of Chara in the backpumped assays, attributed to extensive epiphytization and the development of a sediment algal mat. It is unknown to what extent this nuisance benthic algal mat might influence emergence of growth of SAV in the field. (Plain Hx. 18, p. 1). The source of the seemingly inconsistent conclusions was not clarified at trial. 96a APPENDIX D 5. Karl Havens’ Experiment Over time, scientists theorized that because the algal blooms that adversely impacted the Lake were believed to have been caused by low nitrogen/phosphorous ratios, one solution to the problem might include pumping nitrogen-rich waters, such as the waters from the EAA, into the Lake. (See Plain. Ex. 52, p. 1). Karl Havens, a scientist with the SFWMD, conducted an experiment pursuant to which he added canal water to Lake water to determine whether backpumping might have any positive effects. (See id.). Specifically, he wanted to determine whether backpumping could decrease the amount of blue/green algae in the Lake. (See id.). The idea was that by changing the total nitrogen/phosphorous ratios in the Lake through the introduction of backpumped waters, the nature of the algal communities in the Lake could be beneficially altered. (See Trial Tr. Jan. 18, 2006, 39:10-20). Mr. Havens ultimately concluded that “the results of [the] study indicate a risk for ecological damage if backpumping of EAA canal water was substantially increased.” (See Plain. Ew. 52, p. 35). The report further warned against increased backpumping without additional experimentation and found that even if there were benefits that could result from backpumping, backpumping only represented a temporary fix to the Lake’s problems. (See id.). 97a APPENDIX D 6. Effects of Backpumping on Drinking Water Lake Okeechobee serves as the drinking water source for the cities of Belle Glade, Clewiston and South Bay, among others. (Joint Pretrial Stip., Attach. 5A 16). When backpumping occurs, the City of South Bay’s drinking water plant experiences increases in the water’s hardness, turbidity and color. (/d., 1 25). The SF WMD has received complaints from South Bay, Belle Glade, Pahokee and Clewiston that backpumping causes an unpleasant odor and taste in the cities’ water supplies. (Plain. Kx. 65C). Therefore, the SFWMD sends advance notification of impending backpumping events to the City of Belle Glade. Ud.). Furthermere, the 2001 emergency order that the DEP issued to the SFWMD authorizing water supply backpumping required that the SFWMD reimburse the cities surrounding the Lake for any increased costs of water treatment caused by the backpumping. (Trial Tr. Jan. 12, 2006, 136:19-137:1; Plain. Ex. 54; Plain. Ew. 117, p. 7). Dr. William Wise, a hydrologist, environmental engineer, and chemist, testified that he visited three water treatment plants eight days after a two-day S-2 backpumping event that occurred during the trial. (Def Bx. 124; see also Trial Tr. Feb. 15, 2006, 16:7-9).** The intake water at the South Bay plant (which Plaintiffs claim is closest to the S-2 pump station) was noticeably colored and significantly darker than intake water from 34. The backpumping occurred from February 4, 2006 through February 6, 2006. (Trial Tr March 2, 2006, 16:5-6). 98a APPENDIX D the Belle Glade or Pahokee plants. (Trial Tr Feb. 15, 2006, 16:23-17:2, 54:9-55:11). Dr. Wise attributed the poor water quality at the water intakes to the backpumping episode. (Jd., 55:12-15). Defendants, however, presented testimony that the water quality issues were likely caused by dredging activities that became necessary as a result of the 2005 hurricane season, and not the backpumping event. (See Trial Tr. March 2, 2006, 46:5-24). Defendants presented further testimony that, in fact, Belle Glade, as opposed to South Bay, is the closest intake structure to the S-2 pump. (/d., 85:22-86:1). G. Similarities and Differences Between the Lake and the Canals As noted, the Lake is by no means a uniform body of water and there is much variability between and within the different regions of the Lake. Moreover, the rim canal of the Lake, the immediate receiving body of backpumped waters, is more similar chemically to the EAA canals than is the rest of Lake Okeechobee.” (See Trial Tr. Jan. 9, 2006, 120:14-121:6; Trial Tr. Jan. 10, 2006, 149:14-21). Additionaily, it is important to note that most of the water in the canals likely originated in Lake Okeechobee. (Trial Tr. Feb. 10, 2006, 118:25-119:38). Notwithstanding the commonality of elements, several 35. Although the water in the rim canal is similar to the waters in the canals in many respects, a plume is still visible when water is backpumped into the rim canal. (Trial Tr Jan 9, 2006, 120:23-25). 99a APPENDIX D witnesses testified that there are certain characteristics unique to the canals while other characteristics are unique to the Lake. 1. Structural Characteristics The canals are cut into the bedrock. (Trial Tr. Jan. 17, 2006, 18:7-10). Consistent with their role as water conduits, they were designed and constructed to have vertical sides and a flat bottom. (Joint Pretrial Stip., Attach. 5A 9 20; Trial Tr. Jan. 10, 2006, 91:7-92:1; Trial Tr. Jan. 12, 2006, 70:10-18). In contrast, the Lake was most likely formed as a result of the uneven settling of materials during the period when Florida rose above the ocean. (Trial Tr. Jan. 17, 2006, 12:25-13:6). Thus, the Lake has taken the form of a bowl-shaped depression. (See 7d.). The structural differences between the Lake and the canals mean that the Lake is subject to winds and other physical forces that do not affect the canals in a meaningful way. (Treal Tr. Jan. 12, 2006, 70:15-18). Ona related note, the waters of the Lake mix far more than do the canal waters. (/d., 85:9-12). As a result of the different mixing regimes, chemicals that enter the canals have a longer residence time than do those entering the Lake. (/d., 85:12-15). 2. Water Quality The canals and the Lake are classified differently under Florida and federal law. Unless otherwise delineated, “[t]he surface waters of the State of Florida 100a APPENDIX D are classified as Class III.” Fla. Admin. Code r. 62- 302.400(1). The canals are designated as Class III waters, to be used for recreation and propagation and maintenance of a healthy, well-balanced population of fish and wildlife. (Joint Pretrial Stip., Attach. 5A 1 19; see also Fla. Admin. Code r. 62-302.400(4)). In contrast to the Class III designation of the canals, Florida has designated Lake Okeechobee as a Class I water body, or potable water supply. (Joint Pretrial Stip., Attach. 5A 1 6; see also Fla. Admin. Code r. 62- 302.400). As a Class I water body, the Lake must meet more stringent water quality criteria than the Class III canals. (Joint Pretrial Stip., Attach. 5A 1 22). The total maximum daily load (“TMDU’) of a particular pollutant permitted to enter a Class I water body will often be less than the load permitted to enter a Class III water body. (See Trial Tr. Jan. 17, 2006, 32:22, 33:7-9). Nevertheless, there are many similarities in water quality standards for Class I and Class III waterways (i.e., the criteria for some pollutants are identical). (See id., 32:7-33:13).* As would be anticipated, the water quality in the Lake is generally better than the water quality in the 36. A water body may have multiple classifications. For instance, a river may be classified as a Class I water body at one point and be classified as a Class III water body downstream, or vice-versa. (See Trial Tr, Jan. 17, 2006, 37:13-25). The different classifications may exist even though there is no physical boundary marking the dividing point between the two classifications. (See id , 42:15-17). 10la APPENDIX D canals. A September 2005 draft report from the Corps addresses water quality in the Lake and the canals. (See Plain. Ex. 94; Def Ex. 32). The study utilized data collected from June 4, 1973 through January 18, 2005. ([d., F-86). It concluded that “[i]n both S-2 and S-3, water quality exiting [Lake Okeechobee] was of higher quality than water entering [Lake Okeechobee].” (/d., F-89). As compared to the Lake, the canal waters were higher in most nutrients and lower in dissolved oxygen (at least at S-2 and S-3). (See 2d., F 89-91). The differences in nutrient levels between the canals and the Lake are not surprising. Although canal waters largely originate in the Lake, the canals also receive runoff from the EAA, including waters pumped off of agricultural lands. Additionally, the muck soils in the EAA were formed from partially decomposed plants, causing the soils to have a different chemistry than the sand bottoms of the Lake.” (Trial Tr. Jan. 10, 2006, 90:1- 8; see also Def. Ex. 243, pp. 27-28). As the universal solvent, water picks up the characteristics of its location. (See Trial Tr. Jan. 20, 2006, 53:10-12; see also Trial Tr. Feb. 10, 2006, 119:3-7). Thus, the waters in the canals have incorporated many of the natural characteristics of the EAA. 37. Wetlands tend to have low dissolved oxygen even in their natural state (See Trial Tr, Jan 9, 2006, 118:14-19). 102a APPENDIX D 3. Biology In a well-taken analysis, Dr. Thomas Crisman, professor of environmental science at the University of Florida and director of the Odum Center for Wetlands, explained that within any eco-system type there can be a great deal of variability, but when you are looking at the variability that takes place within Lake Okeechobee, that’s variability among biological components that are lake components. When you look at variability within the canals, it’s variability within the components that are characteristics of canals. (Trial Tr. Jan. 9, 2006, 46:5-12). Many species of birds thrive in shallow waters. (See Trial Tr. Jan. 10, 2006, 90:24-91-12). The Lake contains many shallow areas in which birds may wade. (See 7d.). However, because the canals have steep walls, birds generally are not capable of wading in the canals unless the water level is extremely low. (See 2d.). Furthermore, the big broad flats of the Lake allow certain plants to live in the Lake that are unable to live in the far narrower canals. (See 2d., 91:13-19). Additionally, as explained by biologist Dr. Paul Gray, whose expertise is in the area of lake ecology and ducks, [cljanals, because of their nature, go up and down very rapidly. If you are a bird, you are 1O3a APPENDIX D depending on the canal to get a steady supply of food. You have to keep your young alive. You can’t rely on a canal. ... Canals are just not the same [type] of habitat ecologically for various marsh organisms. .. . The lack of a normal hydrology, the lack of shallow water, the Jack of expanse of habitat really makes canals a lot different from Lake Okeechobee... . (/d., 91:23-92:19; see also Trial Tr. Jan. 17, 2006, 14:7 (biological differences between Lake and canals are “severe”)). Dr. Gray added that “canals don’t have the same water cycle vegetation, the same spatial extent. They are very different.” (Trial Tr. Jan. 10, 2006, 94:1- 3),38 H. Programs Addressing Current Environmental Problems 1, Recognition of Problems in the Lake Over the years, it has become increasingly apparent that although Florida succeeded in reclaiming much of the Everglades for human use, the natural environment has suffered as a result of these efforts. What remains of the natural Everglades is in a continuing state of decline. (Joint Pretrial Stip., Attach. 5B 4 49). The 38. The rim canal, into which the canal waters are pumped, attracts species of birds that would generally be attracted to the canals. (See id , 150.5-10). As noted, the rim canal is similar to the canals in other respects. (See Trial Tr Jan 9, 2006, 120°14 121°6, Tal Tr Jan 10, 2006, 149:14-21). 104a APPENDIX D adverse situation is primarily attributable to the Everglades’ diminished capacity to retain the huge volume of water that once pooled and sheet flowed across the landscape. (/d.). These waters are now either discharged in massive volumes through canal systems to tide, or are stored at unnaturally high levels in the Water Conservation Areas (“WCA[s]”). (/d.). Many of the area’s problems are now recognized as unanticipated consequences of the C&SF Project. (Joint Pretrial Stip., Attach. 5B 9 49). The problems are exacerbated by the inescapable reality that people continue to move to South Florida at one of the highest rates in the nation. (/d.). The result is a currently non sustainable system of urban, agricultural and natural! environments in South Florida that exceeds the capacity of, or is hampered by, the existing system of water management. (/d., 150). The problems facing the Everglades have heen examined in many studies conducted over the past 35 years, many of which have been funded by the SEFWMD. (See Trial Tr. Jan. 11, 2006, 6:15-7:3). For example, in 1969, a United States Geological Survey report concluded that: (1) Lake Okeechobee was eutrophic; (2) the EAA was a principal source of nitrogen loadings to the Lake; (3) backpumped waters were very high in nitrogen, had high specific conductance, and had low turbidity; and (4) the most impacted parts of the Lake were the rim canal and the South Bay littoral zone. (Joint Pretrial Stip., Attach. 5A 935). 10Sa APPENDIX D A series of scientific studies subsequently conducted confirmed the conclusion that the Lake was undergoing a process of man-induced (anthropogenic) eutrophication and that backpumped EAA flood water contributed significantly to Lake eutrophication. (See Plain. Ex. 111, pp. 49-52). In 1976, the Florida Department of Administration, the DER, and the Central and Southern Florida Flood Control District participated in a report that ultimately recommended that: (1) backpumping from S-2, S-3, and S-4 and by private interests should be eliminated or reduced to the maximum degree feasible; (2) the FAA canals should be enlarged to enable the largest feasible amount of water now backpumped to be routed southward for storage; (3) as much of the backpumped water as feasible should be stored for recyle |sic| within the FAA; and (4) a detailed study of alternatives to backpumping by private interests and the S-4 pump station should be conducted. (Plain. Hx. 111, pp. 80-84). The study, however, did not recommend that backpumping be eliminated. (See id.; Trial Tr Jan. 17, 2006, 51:21-52:1). The State of Florida has declared the Lake to he impaired (not meeting its designated uses) “due to phosphorus, dissolved oxygen, iron, un-ionized ammonia, coliforms and chlorides.” (Plain. E.r. 20, p. 8). Florida has also recognized that the health of the Lake’s natural resources is threatened by three primary stressors: (1) excessive phosphorous loads; (2) harmful high and low water levels; and (3) the spread of exotic vegetation. (Jorn Pretrial Stip., Attach. 5B 4 31). 1O6a APPENDIX D 2. KHKfforts to Restore Lake Okeechobee and th Bverglades To combat the enormous problems facing Lake Okeechobee, the state and federal governments have gone to great lengths to restore the system. Many of the programs build upon each other. The following summarizes the major programs/actions upon which the Court heard testimony and received evidence a. SFWMD Duties In 1972, the Florida legislature expanded the SFWMD’s duties to include management, on a holistic basis, of all water resources throughout Central and South Florida. (Trial Tr Jan. 20, 2006, 118:20-114:1) In keeping with the goal of protecting the environment, the SFWMD and other agencies have conducted extensive research to address the water quality problems of the Lake. (Jomt Pretrial Stip., Attach. 52 1 47). Many scientists have been studying the Lake to ascertain the optimal manner of restoration, spending millions of dollars to examine not only the Lake but the interactions occurring within the entire ecosystem. (Trial Tr. Jan. 11, 2006, 6:17-7:25). Notwithstanding it: efforts, however, the SEWMD has been the source of considerable criticism and has been foreed to defend numerous lawsuits over the year 107a APPENDIX D b. Interim Action Plan and Temporary Operating Permit In the late 1970s, environmental groups filed suit against DER, alleging that it had failed to require the SF WMD to obtain a pollution permit for the structures that were discharging water and pollutants into Lake Okeechobee. (7T'rial Tr Jan. 12, 2006, 97:18-98:3). The parties eventually entered into a consent decree, pursuant to which DER issued a temporary operating permit to the SFWMD that required the development of interim actions to reduce nutrient impacts to the Lake. (See id., 101:11-16; Plain. Ex. 112). The permit also required the development of a longer-range analysis of options for reducing pollution levels. (See id. ). One important consequence of the consent decree was the development of a modified backpumping schedule called the Interim Action Plan (“IAP”). (See Trial Tr. Jan. 12, 2006, 101:17-106:10; Plain. Ex. 113). The LAP established a point system to determine when backpumping for purposes other than water supply is appropriate. (See Trial Tr. Jan. 12, 2006, 104:10-105:4; Plain. Ea. 113). In other words, under the IAP the SFWMD is permitted to backpump into the Lake from the S-2 and 8-3 pump stations only under certain conditions.” (Plaim. Ex. 113, Table 5). 39 The requirements of the IAP do not apply to the S-4 pump station. (Plawn Ex. 118, Trial Tr Jan 17,2006, 116:15-16; Trial Tr Feb 13, 2006, 42:5-6). 108a APPENDIX D One of the primary goals of the IAP was to move nutrient-rich waters south into the WCAs or out to tide rather than moving them north into the Lake. The IAP has successfully reduced the amount of water moving north into the Lake. At most, the S-2 and S-3 pumps now operate only a few days per year. (Trial Tr Feb. 10, 2006, 105:20-21). There are estimates that the IAP has reduced the flows from the EAA to the Lake by 90 to 95 percent. (Trial Tr. Jan. 10, 2006, 188:15-19; Trial Tr Jan. 20, 2006, 128:12-18). Today, the S-2, S-3, and S-4 pump stations, together, contribute no more than six percent of the total inflows to Lake Okeechobee (on a multi-year average). (See Joint Pretrial Stip., Attach. 5B 9129; Trial Tr Jan. 25, 2006, 54:17-22, 66:4-8). Plaintiffs, however, provided testimony that, over the years, backpumping has occurred even when the conditions specified in the LAP were not met (/.e., when the point total was not high enough). (See Trial Tr Jan. 13, 2006, 176:23-179:22, 181:13-21). Moreover, because the IAP does not apply to backpumping for water supply purposes, under certain circumstances, a significant amount of water could be backpumped outside the bounds of the IAP (Trial Tr Jan. 12, 2006, 105:14-16). c. 1983 Operating Permit In 1988, the DEP issued to the SFWMD an operating permit that placed limits on the amount of phosphorous and nitrogen that could be discharged from SFWMD structures into Lake Okeechobee. (Plain. Ex. 109a APPENDIX D 114). The permit also set deadlines for meeting the reduction requirements. (See ?d.). It specifically regulated discharges from 14 major inflow structures to the Lake. (Joint Pretrial Stip., Attach. 5A 4 55). Importantly, the operating permit incorporated the backpumping criteria of the [AP (See Trial Tr Jan. 18, 2006, 7:8-15). The 1988 operating permit for the SFWMD was meant only to establish temporary goals and was scheduled to expire in 1988. (See Trial Tr. Jan. 11, 2006, 76:13-17; Trial Tr. Jan. 12, 2006, 125:13-126:8). The 1983 permit is still in effect. (Trial Tr. Jan. 12, 2006, 126:9-]28:2; Trial Tr, Jan. 25, 2006, 110:24-111:1). Herbert Zebuth summarized the SFWMD’'s compliance with the 1983 permit in a report that was entered into evidence. (See Plain. Ex. 93). His report was based on data provided by the SFWMD. (Trial Tr. Jan. 12, 2006, 61:4-6). The analysis, and Mr. Zebuth’s testimony, indicate that the permit’s nutrient targets have been continually exceeded throughout the years. (See Joint Pretrial Stip., Attach. 54 1 24; see also Plain Birs. 45,93; Trial Tr. Jan. 12, 2006, 111:22-23, 116:8-20). d. Surface Water and Improvement Act In 1985 and 1986, the Lake experienced a massive algal bloom that attracted widespread public attention. (See Trial Tr. Jan. 12, 2006, 40:23-25). In response, Florida passed the Surface Water and Improvement (“SWIM”) Act, which required development of a plan to improve the water quality of the Lake and other water bodies by 1988, and required compliance with a numeric 110a APPENDIX D phosphorous reduction goal by a date certain. (/d., 40:23- 41:12). The stated legislative intent of the SWIM Act is as follows: The Legislature finds that the water quality of many of the surface waters of the state has been degraded, or is in danger of becoming degraded, and that the natural systems associated with many surface waters have been altered so that these surface waters no longer perform the important functions that they once performed. These functions include: (a) Providing aesthetic and recreational pleasure for the people of the state; b) Providing habitat for native plants, fish, and wildlife, including endangered and threatened species; (c) Providing safe drinking water to the growing population of the state; and (d) Attracting visitors and accruing other economic benefits. Illa APPENDIX D The SWIM Act mandates that each water management district “maintain a list that prioritizes water bodies of regional or statewide significance within the water management district.” Fla. Stat. § 373.453(1)(a). The lists are to be reviewed and updated every five years. Jd. The SWIM Act specifically requires that the SFWMD prioritize the restoration of Lake Okeechobee and its tributaries. Fla. Stat. § 373.453(1)(c)(1). Water management districts are authorized to develop surface water improvement and management plans for the water bodies within their district. Fla. Stat. § 373.453(2). Those plans should include, among other things, the identification of point and nonpoint sources of pollution to the water body and strategies for restoring and protecting the water body. ld. The plan developed for Lake Okeechobee set a goal of a 40% reduction in phosphorous loading to the Lake (from the watershed) from the baseline levels that existed from 1973-1979. (Joint Pretrial Stip., Attach. 5A 7 64)." From 1991-2000, an average of 433 metric tons of phosphorous entered the Lake annually. (Def Ex. 28, p. 11; see Trial Tr. Jan. 12, 2006, 122:5-22). Accordingly, the 1997 SWIM Plan update reported that although the Plan had achieved phosphorus load reductions, the 40% reduction goal had not been achieved. (Jozrt Pretrial Stip., Attach. 5A 167). Similarly, the 2002 SWIM Plan update found that phosphorous loading far exceeded 40 The SWIM Plan did not address nitrogen loading to the Lake. (Joint Pretrial Stip , Attach. 5A 4 61). ll2a APPENDIX D the amount considered necessary to achieve a healthy Lake and found that it could take decades before the beneficial results of phosphorous loading reductions were realized. (Joint Pretrial Stip., Attach. 5A {1 69). e. 1988 Consent Decree and Everglades Forever Act In 1988, the United States filed suit against the SFWMD and the State of Florida over activities that allowed pollutants to enter the Everglades. See United States v. So. Florida Water Mgmt. Dist., Case No. 88- 1886-Civ. Specifically, the suit concerned the SFWMD’s movement of polluted waters to Everglades National Park. A consent decree reached in the 1988 suit resulted in the construction of stormwater treatment areas (“STA[s]”) in the southernmost portion of the EAA (Trial Tr. Jan. 13, 2006, 92:22-93:4), and the construction of new pump stations approximately five miles north of the S-7 and S-8 pump stations for the purpose of pulling canal water into tne STAs. (Def Evs. 1, 118), In the aftermath of the litigation, Florida passed the Everglades Forever Act.*' See Fla. Stat. § 373.4592. The Everglades Forever Act mandates that a series of actions be taken to restore the Everglades. At trial, Defendants focused on the best management practices (“BMP”) program established by the Act. The BMP program is a regulatory program meant to control the 41. The Everglades Forever Act was initially known as the Everglades Protection Act. (7mal Tr Feb 9, 2006, 34:11-18). l}3a APPENDIX D release of pollutants before they enter navigable waters. (Trial Tr. Feb. 9, 2006, 37:12-22). The BMP program is considered a source control] program. (/d., 37:11-23). All landowners within the EAA who utilize the works of the district must apply fora BMP permit. (/d., 34:8-25; Fla. Admin. Code r. 40E-63.110(1)). Landowners may receive general, individual or master permits. General permits are issued under the program for smaller parcels of land. See Fla. Admin. Code r. 40E-63.120. To obtain an individual permit, an applicant must, among other things: (1) Submit and implement a BMP Plan which includes: (a) Adeseription of Best Management Practice implementation and operation; (b) Adescription of Best Management Practice rationale (Best Management Practice research can be used to supplement data where appropriate); (c) A consideration of the Best Management Practices [from a@ list] . and an explanation of why Best Management Practices not included in the BMP Plan are net suitable for implementation; lida APPENDIX D (d) A fertilization and water management plan for each crop, combination of crops or farming units; (e) A water management system design plan, including a water budget, probable volume and timing of discharge, nutrient recovery rationale, field water management strategies, infrastructure descriptions, and inter- and intra-operation water routing; (f) A monitoring plan to verify Best Management Practice implementation, operation and effectiveness . .. ; (7) An education [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_IA40386017_2348%3A01. Public record. Not legal advice.