FRIENDS OF THE EVERGLADES LEGAL UPDATE

The Everglades, from the Kissimmee River Basin to the mangrove estuaries of the Gulf of Mexico to the Florida Keys and its barrier reef system, is a World Heritage site and the largest subtropical sheet-flow ecosystem in the world. It is the focus of a thirty year, eight billion dollar restoration project and is home to dozens of rare, threatened and endangered plants and animals. It, and the restoration, are under assault from a host of local and state, private and governmental interests. Federal government agencies must not be allowed to abandon their environmental oversight responsibilities to state sponsored, short-term policies and projects.

When it becomes clear that these regulatory agencies have made important resource decisions based on politics rather than sound science and reason we must take legal action.

Friends of the Everglades has filed or joined in ten Federal lawsuits in the last ten years - three of which have been reviewed by the 11th Circuit Court of Appeals and one by the Untied States Supreme Court. We have participated in more than twenty state court cases in the last twenty years. A brief description of each of the current legal actions we are pursuing on behalf of the Everglades follows:

* Friends of the Everglades, et al. v. SFWMD, et al., Case No.: 02-CV-80309
(S-2, S-3 Pump case)

This is a Federal Court challenge to the South Florida Water Management District's backpumping of polluted water from the Everglades Agricultural Area, north into Lake Okeechobee.

This lengthy and expensive case began in 2002 and finally came to trial in January 2006. Friends has been joined in this lawsuit by the Florida Wildlife Federation and the Miccosukee Tribe of Indians. The Defendants, whose position continues to be that they either they did not create the pollution they admit to pumping or we can't prove they are responsible, include the South Florida Water Management District, U.S. Sugar Corporation and the U.S. EPA and Corps of Engineers represented by the U.S. Department of Justice. In the meantime, Lake Okeechobee, the liquid heart of the Everglades, continues to deteriorate. After dozens of depositions and days of trial testimony, in December 2006 Federal Judge Cecelia Altonaga issued a 107 page ruling indicating that the Defendants are, in fact, violating the Clean Water Act and must apply for federal permits to move polluted water.  Her ruling, issued as a final Judgment in favor of Friends of the Everglades, is a major vindication of our strategy to require Everglades Restoration to be driven by Federal law rather than state law.  The Judge’s ruling, of course, has been appealed by the SFWMD and is currently briefed awaiting a decision by the U.S. 11th Circuit Court of Appeals.  If the Court affirms the ruling as we expect, the SFWMD will likely appeal to the U.S. Supreme Court.

Miccosukee Tribe & Friends of the Everglades v. SFWMD, Case No.: 98-CV-6056 (S-9 Pump Case) The S-9 is one of the pumps that moves water from a polluted Broward County canal into the Everglades.

The canal serves Weston and other suburban areas of western Broward County. This case went up to the Supreme Court two years ago. [LINK TO SUPREME COURT BUTTON] Friends won on all disputed issues, however, the U.S. Solicitor General stepped in and raised (for the first time) a 'unitary waters' theory: "Isn't the water in this canal, water which conveys pollution from sugar cane fields and urban areas, really part of the same water body as the more-pristine Everglades and, therefore, not governed by the Clean Water Act?" The Supreme Court sent the case back to the District Court for a ruling on this single issue. If the waters are all part of the same water body, the pumping (and pollution of the Everglades) will likely be allowed to continue unabated - if they are not, the SFWMD will be required to get a federal pollution elimination permit to continue its pumping. The District Court has now heard all legal arguments and reviewed expert depositions.  The case is currently stayed (put on hold) pending the outcome of the appeal in the S-2, S-3 Pump case since the issues are so similar. 

 

Friends of the Everglades v. U.S. EPA, Case No.: 04-CV-22072 (EFA Amendments case); Friends of the Everglades v. U.S. EPA, Case No.: 05-CV-20663 (Phosphorus case) The first case is a Federal Court Challenge to the EPA's decision to allow State of Florida to take another decade to meet Everglades’ water quality standards - to clean up agricultural run-off.  The second case is a Federal Court Challenge to the lax law setting the numeric standard for phosphorus in the Everglades - the amount of phosphorus run-off the Everglades can tolerate. Both of these cases have been consolidated procedurally and for purposes of trial since all the parties are the same and many of the facts overlap.

In 1994, the state Everglades Forever Act suspended enforcement of all water quality standards in the Everglades until 2006. The US EPA ruled that the state's 12-year plan to stop Everglades pollution was reasonable. Friends of the Everglades did not agree. However, a federal Court ruled that 12 years was not completely unreasonable and agreed to allow it. In 2003, at the request of the SFWMD and the Florida Department of Environmental Protection, the state decided to extend that deadline until December 2016, with the proviso that there could be yet another ten-year extension if needed. Also in 2003, the state finally set a phosphorous level standard for water entering or pumped into the Everglades - a level all agree is probably correct. However, they built into that law so many loopholes that it will utterly fail to protect the Everglades as required. The US EPA either remained silent on these developments or approved them. Friends of the Everglades challenged both decisions and, after much stalling (and the intervention of sugar industry conglomerates and the State of Florida), this case is proceeding and should be decided early next year. Our opponents in these combined cases are the Okeelanta Sugar Corporation, New Hope Sugar, the Department of Justice (DEP), the Environmental Protection Agency, (EPA) and the State of Florida represented by the Attorney General and the Florida Department of Environmental Protection.  The case is currently fully briefed and a trial or final hearing will likely be held in the next few months.

            We are contemplating a number of other challenges related to water management and quality issues and will keep you updated on our progress.