By Jenny Staletovitch
February 23, 2017
A quarter century after the state promised to clean up polluted farm water fouling the Everglades in a historic federal court order, water managers say its time to end the judicial oversight.
In an email earlier this month, an attorney for the South Florida Water Management District asked the U.S. Department of Justice to agree to terminate a “consent order” struck to end a bitter legal battle over dirty water flowing off sugarcane fields and into Everglades National Park and the Loxahatchee National Wildlife Refuge. The district, which has repeatedly pushed to end the judicial oversight, argues that with water in 90 percent of the Everglades now meeting targets and construction on schedule for clean-up projects, the order is no longer needed.
“This protracted litigation … stands today as an antiquated and inequitable vestige of a bygone era,” attorney James Nutt wrote in a draft motion he forwarded to DOJ attorneys Feb. 10. “It is the right time to acknowledge the State parties’ remarkable achievements.”
But plaintiffs in the lawsuit and environmentalists warn ending the consent order at a time when restoration efforts remain far from complete — none of the 68 projects that make up the Comprehensive Everglades Restoration Plan is done — would remove a powerful tool for insuring work gets done. They worry the state, which has changed deadlines, failed to clean up pollution in Lake Okeechobee and reneged on a promise to replace a reservoir needed to provide water to South Florida, will instead declare victory before goals are met.
They also fear the push to remove court supervision comes at a pivotal moment: with a new president and a new boss at the Environmental Protection Agency who has fought to end its regulations.
“I’ll tell you what’s antiquated is how we manage water right now. Dumping water east and west of Lake Okeechobee is as antiquated as it comes,” said Everglades Foundation CEO Eric Eikenberg. “Billions of gallons of water are killing things east and west and they want to wait another six years to come up with a solution. The water management district has lost its mind.”
Without court supervision, Audubon Florida Executive Director Eric Draper also fears water quality would fall to the legislature — and political whims — or an EPA that might be less inclined to enforce water quality rules.
“The state of Florida has had to be dragged along in every step of the clean-up process,” he said. “If you use the Oklahoma standard, we have no reason to think if the state stopped implementing water quality programs that the EPA would intervene.”
Draper also called the “90 percent” clean claim from the district misleading, saying it includes vast areas of the marsh that were never dirty to begin with. “The district is using a bookkeeping trick of including data that doesn’t really tell the story of how out of balance the water quality is in the Everglades,” he said.
Over the years, the state has pushed to end the case and the latest call to end judicial oversight isn’t exactly a surprise. Board chairman Dan O’Keefe first mentioned the prospect of the move to two of the cases’ plaintiffs — Audubon and the Florida Wildlife Federation — in December. But the timing suggests the district may now be hoping for a friendlier response with the Trump administration now in the White House.
Nutt’s email was sent just two days after Congress confirmed new Attorney General Jeff Sessions, who voted to strip EPA of its authority to regulate greenhouse gases. In it, Nutt argued the decree “stands inconsistent with principles of equity and federalism,” which limit the powers of government.
The move also comes just months after the district threatened to terminate a lease deal with the U.S. Fish and Wildlife Service to manage the Loxahatchee refuge, raising fears that without federal involvement, water quality rules would no longer be enforceable in the 147,000-acre refuge.
The consent decree ended a three-year battle, with Gov. Lawton Chiles famously showing up in court to surrender, asking “who I can give my sword to?” The decree established three pillars of restoration: how clean the water is, where it goes and when it gets there. While the federal government agreed to handle the distribution and timing of water flow, the state agreed to make sure it was clean and laid out a monitoring plan.
Over the past two decades, the state has vastly improved water conditions in the Everglades Agricultural Area, the farm fields that now separate Lake Okeechobee, a historic source of water to the Everglades, from the marshes to the south. However, while the amount of phosphorus in flowing water hit its lowest in 17 years last year, the concentration remain above the consent decree’s target.
In the draft motion, Nutt writes that while the parties originally agreed to meet water goals by 2002, then extended it to 2006, no steps are spelled out about ending the decree. The motion also argues that the state has expanded its restoration efforts and, coupled with EPA regulations, now extends far beyond the goals set in the consent decree. Farmer’s best management practices have reduced run-off and vast stormwater treatment areas, part of an $880 million package of remedies agreed to by Gov. Rick Scott to settle another lawsuit, are working.
“This is a lawsuit that was filed in 1988, it is now 2017. In the nearly 30 years since the lawsuit was filed, Florida has implemented a rigorous system of EPA approved water quality initiatives that have resulted in exceptional water quality results,” district spokesman Randy Smith said in an email.
When asked how justice attorneys responded to the request, Smith said “dialogue is ongoing.”
If the parties do follow through on the motion, U.S. District Judge Federico Moreno will have final say. Other parties, including the Miccosukee Tribe, will also get a say on determining whether in fact the circumstances that created the need for the decree have been solved. Tribe attorney Jeanine Bennett said the tribe was unaware of the talks and “dismayed” that the district would consider it unnecessary at this point.
“The Tribe would expect that the DOJ would recognize the federal government’s obligation to the Miccosukee people in any action contemplated where its lands would be irreparably harmed,” she wrote.