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A Table of Contents of this Order is included as an attachment to this Order.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

LEAD CASE NO: 04-21448-CIV-GOLD/McALILEY

MICCOSUKEE TRIBE OF INDIANS

OF FLORIDA,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.

Defendants.

________________________________/

FRIENDS OF THE EVERGLADES, 

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.

Defendants.

________________________________/

ORDER GRANTING SUMMARY JUDGMENT; CLOSING CASE

I. SUMMARY OF THE COURT’S RULING1

This case, and its long history, is complex. It is a continuation of litigation over the

Everglades that started in 1988. Since that time, the litigation has resulted in numerous

court decisions, an overall settlement agreement, and then litigation over it. To resolve the

litigation (as then pending), the Florida Legislature enacted the Everglades Forever Act in

1994, § 373.4592, Florida Statutes. More recently, the Florida Legislature enacted

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amendments to the Everglades Forever Act in 2003, and the State of Florida has adopted

the Phosphorus Rule, §§ 62-302.530 and 62-302.540, Florida Administrative Code,

applicable to the Everglades Protection Area. Both the 2003 amendments to the

Everglades Forever Act and the Phosphorus Rule are the subject of this litigation.

 Notwithstanding its complexity, the matters at issue may be reduced to two

essential questions. The first question is whether the Environmental Protection Agency

acted arbitrarily and capriciously under the Federal Clean Water Act, 33 U.S.C. § 1251 et.

seq.(“CWA”), and the Federal Administrative Procedures Act, 5 U.S.C. § 701, et. seq.

(“APA”), by concluding that the 2003 amendments to the Florida’s Everglades Forever Act

did not change water quality standards. The second question is whether the

Environmental Protection Agency further erred in its subsequent review of the State of

Florida’s Phosphorus Rule by finding compliance with the Federal Clean Water Act.

I conclude against the Environmental Protection Agency on both questions (with

some limited exceptions pertinent to the Phosphorus Rule). Contrary to the Environmental

Protection Agency’s written Determinations, it is my view that the Florida Legislature, in

2003, by adopting the State’s draft Long-Term Plan, as proposed by the South Florida

Water Management District’s Governing Board, changed water quality standards under the

Federal Clean Water Act, and violated its fundamental commitment and promise to protect

the Everglades, by extending the December 31, 2006 compliance deadline for meeting

the phosphorus criterion for at least ten more years. Turning a “blind eye,” the United

States Environmental Protection Agency (“EPA”) concluded that there was no change in

water quality standards. The EPA is patently wrong and acted arbitrarily and capriciously

in reaching its conclusion. It did so by simply reading the words of specific sections of the

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Amended Everglades Forever Act (“Amended EFA”), rather than by connecting the dots

to analyze its true effect. Its review is nothing more than a repeated imprimatur, i.e.,

acceptance without independent analysis, based on the State of Florida’s representation

that the EFA Amendments did not change water quality standards.

The Environmental Protection Agency further compounded its error in its

subsequent review of the State of Florida’s Phosphorus Rule for compliance with Section

303 of the Clean Water Act, 33 U.S.C. § 1313. The EPA ended its November 5, 2003

Determination on the Amendments to the EFA by observing that “the 2003 amendments,

and their subsequent implementation, warrant ‘close scrutiny.’” EPA November 5, 2003

Determination, p. 11 [PR-AR-11]. Instead of giving the Phosphorus Rule provisions the

close scrutiny it promised, the EPA again deferred to the State of Florida, reserving its

review under the CWA for later permits. Plaintiffs are correct that “by kicking the can down

the road to individual permits,” EPA has once again avoided its duty to protect the

Everglades. It has failed to adhere to the mandates of the Clean Water Act and properly

analyze whether the Phosphorus Rule was a “blanket change” to the previously approved

December 31, 2006 compliance deadline for those who adopt the Long-Term Plan. It also

acted arbitrarily and capriciously by failing to consider the effect of these changes on the

Everglades Protection Area as a whole, and on the requisite “propagation and

maintenance of a healthy, well-balanced population of fish and wildlife,” as required for

Class III Florida waters. 

In short, what EPA has done is to allow “Florida to radically modify its water quality

standards, simply disavow that a change had taken place” and then “rely on Florida’s

disavowal to avoid its mandatory review of the modified standards.” Fla. Pub. Interest

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Research Group Citizens Lobby, Inc. v. EPA (FPIRG), 386 F.3d 1070, 1089 (11th Cir.

2004). This Court is duty-bound to give “close scrutiny” to the effect of the EPA’s actions.

EPA November 5, 2003 Determination, p. 11 [PR-AR-11]. I have endeavored to do so in

this Order.

II. THE PARTIES, THE CASE, AND THE PENDING MOTIONS 

A. The Parties

This consolidated case has been brought by two Plaintiffs: the Miccosukee Tribe of

Indians of Florida (“Miccosukee Tribe”) and Friends of the Everglades (“Friends”). The

Miccosukee Tribe is a federally recognized Indian Tribe whose members reside and work

within the Everglades. DE 147 at 2. Friends is an organization founded for the protection

and preservation of the Everglades ecosystem, and more than 4,400 members of Friends

use the Everglades on a continuing basis for both recreational and aesthetic uses. DE 150

at 2-3. 

The Plaintiffs have brought their cases, as now consolidated, against the United

States, the United States Environmental Protection Agency (“EPA”), the Administrator of

the EPA, and the Regional Administrator of the EPA, Region IV (all collectively referred to

as “EPA”). The EPA is the federal agency charged with enforcing the Federal Clean

Water Act. The Florida Department of Environment Protection (“DEP”), New Hope Sugar

Company and Okeelanta Corporation are intervenors. The Florida Department of

Environmental Protection is the State’s designated environmentalregulatory agency. New

Hope Sugar Company and Okeelanta Corporation, together with their affiliated companies,

own and farm approximately 190,000 acres within the Everglades Agricultural Area (“EAA”)

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The Clean Water Act (CWA) was enacted in 1972 to “restore and maintain the

chemical, physical and biological integrity of the Nation’s waters.” As defined in the federal

regulations which implement the CWA, “water quality standards are provisions of State or

Federal law which consist of a designated use or uses for the waters of the United States

and water quality criteria for such waters based upon such uses.” 40 C.F.R. § 131.3(I).

Pursuant to the same regulation, “criteria” are defined as elements of a state’s water quality

standards which represent the quality of water that support a designated use of a water

body, and these criteria may include narrative statements and numeric concentrations or

levels. Id. 

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which borders the Everglades Protection Area. DE 19 at 1. The Everglades Protection

Area (as defined in the 1994 EFA) covers approximately 3,500 square miles and consists

of Everglades National Park (“Park”), the Loxahatchee National Wildlife Refuge (“Refuge”),

and Water Conservation Areas (WCAs) 2A, 2B, 3A, and 3B. EPA Sept. 1999

Determination at 3, 10 [EFA-AR-8]. The Refuge is also referred to as Water Conservation

Area 1 or WCA-1. 

B. The Case 

This case is now before me on the Third Amended Complaint [DE 147] by Plaintiff

Miccosukee Tribe and the two Second Amended Complaints [DE 113, DE 150] by Friends

of the Everglades. The Miccosukee Tribe’s Third Amended Complaint raises three claims

under the Federal Administrative Procedures Act, 5 U.S.C. § 701, et. seq. (“APA”), with

regard to the EPA’s determinations on the Amendments to the EFA and on the

Phosphorus Rule. In Friends’ Second Amended Complaint with respect to the Amended

EFA [DE 113], it brings claims under the APA, 5 U.S.C. §§ 702 and 706(1), (2)(A), (C), and

(D); and the Declaratory Judgment Act, 28 U.S.C. § 2201. In Friends’ Second Amended

Complaint with respect to the Phosphorus Rule [DE 150], it brings claims against

Defendants under the CWA, 33 U.S.C. §§ 1301(a) and (e), 1311(a), 1313(c), 1342(a); the 2

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When a state submits its water quality standards to the EPA for review, the

standards must include: (1) the designated uses for each body of water; (2) what methods

were used and analyses conducted to support the revisions to state water quality

standards; (3) water quality criteria, which constitutes specific limits on pollutants which

protect the designated uses for each water body and which may be expressed as either

a narrative standard or a numeric concentration level; and (4) an anti-degradation policy

to protect existing uses of bodies of water and high-quality water. Id.; 40 C.F.R. § 131.3;

40 C.F.R. § 131.6; 40 C.F.R. § 131.12.

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Endangered Species Act (ESA), 16 U.S.C. § 1440; the APA, 5 U.S.C. § 706; and the

Declaratory Judgment Act, 28 U.S.C. § 2201. 

C. Summary of Pending Motions: Oral Argument

This Order addresses the parties’ cross-motions for summary judgment on Plaintiffs’

claims regarding the Amended Everglades Forever Act and the Phosphorus Rule. With

respect to the Amended EFA, the motions for summary judgment are: (1) the Miccosukee

Tribe’s Motion for Summary Judgment on Count I of its Third Amended Complaint and

Friends of the Everglades’ Motion for Partial Summary Judgment on its Second Amended

Complaint [DE 226]; (2) the EPA’s Cross-Motion for Summary Judgment [DE 231]; (3)

DEP’s Cross-Motion for Summary Judgment [DE 234]; and (4) New Hope and Okeelanta’s

Cross-Motion for Summary Judgment [DE 239].

With respect to the Phosphorus Rule, the motions for summary judgment are: (1)

the Miccosukee Tribe’s Motion for Summary Judgment on Counts II and III of its Third

Amended Complaint and Friends of the Everglades’ Motion for Summary Judgment on its

Second Amended Complaint [DE 255]; (2) the EPA’s Cross-Motion for Summary Judgment

[DE 274]; (3) DEP’s Cross-Motion for Summary Judgment [DE 281]; and (4) New Hope

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Plaintiffs filed a Motion to Complete and Supplement the Administrative Record [DE

196], a Motion to Supplement the Administrative Record [DE 253], and a Motion to

Complete the Administrative Record [DE 270]. I previously granted these motions in part,

to allow the parties to refer to these documents in their briefs while reserving to rule on the

merits of these three Motions.

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The EPA has filed “Objections to Evidence Presented by Plaintiffs at Summary

Judgment Hearings” [DE 322]. By way of background, both parties, at the request of the

Court, had filed power point presentations to purportedly summarize the key points in their

numerous briefs. The Plaintiffs, the EPA and the Intervenors have exceeded the Court’s

request by incorporating matters beyond the scope of the record as part of their respective

power point presentations. In its objections, the EPA does not object to the use of Plaintiffs’

materials as demonstrative exhibits, but does object to any use of the materials as a basis

for the Court’s decision on the merits. DE 322, p. 2. I concur with EPA. While I accept all

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and Okeelanta’s Cross-Motion for Summary Judgment [DE 278]. 

I heard oral argument on all of the motions for summary judgment on April 21, 2008,

April 22, 2008, and May 21, 2008. 

III. THE ADMINISTRATIVE RECORD UNDER REVIEW

The parties have argued at length about what constitutes the administrative record

subject to the Court’s review under the APA on the challenges to both the EFA

Amendments and to the Phosphorus Rule. The Plaintiffs have sought to significantly

supplement the record. I conditionally allowed the record to be supplemented, subject to 3

resolving the issue by this Order. I now deny the Plaintiffs’ motions to supplement with two

exceptions. I conclude that I can resolve each challenge on the record submitted by the

EPA and the DEP without resorting to the Plaintiffs’ supplemental material. Instead, I focus

on the plain wording of the EFA Amendments and the Rule, and on the history of the case

as presented by the parties. This history includes the EPA’s past Determinations relating

to the 1994 EFA as well as the litigation history. My conclusions on each of the issues 4

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of the presentations, and supporting exhibit books, for “demonstrative purposes,” I do not

rely on the extraneous information contained in the power point presentations and exhibit

books in reaching my findings and conclusions.

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As stated at the end of this Order, the parties are instructed to file electronic

versions of the full March 2003 and October 2003 Long-Term Plans. In response to my

order [DE 311], the parties delivered copies of both full Long-Term Plans to the Court, but

the parties did not file these documents as part of the docket in this case.

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pertinent to the Plaintiffs’ separate challenges to the Amendments and the Rule are based

solely on the administrative record corresponding to each separate challenge.

I now address the two exceptions. First, at the hearing held on February 29, 2008

and in a subsequent order [DE 311], I instructed the parties to submit the full Everglades

Protection Area Tributary Basins Conceptual Plan for Achieving Long-Term Water Qaulity

Goals Final Report (“Long-Term Plan”), dated March 2003, as well as the revised LongTerm Plan, dated October 2003. Although the March 2003 Long-Term Plan was adopted

and included by reference in the Amended EFA, the EPA’s administrative record for the

Phosphorus Rule only contained executive summaries of the March 2003 and the October

2003 Long-Term Plans, [PR-AR-32, 3-27-2003, doc. 6; PR-AR-29.28], and the EPA’s

administrative record for the Amended EFA contained neither full versions nor executive

summaries of either Long Term Plan. At the February 29, 2008 hearing, no party objected

to including the full Long-Term Plans for March 2003 and October 2003 as part of the

administrative records in this case. See Trans. Feb. 29, 2008 at 6-9. As such, I consider

the full March 2003 and October 2003 Long-Term Plans as part of my analysis on the

parties’ cross-motions for summary judgment.5

Second, in Plaintiffs’ Motion to Complete the Administrative Record [DE 270], they

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EPA also argues, without supporting authority or documentation, that although the

EPA collected the samples used for the REMAP report in 2005, EPA processed the data

from those samples in 2006 and statistically analyzed the data in 2007. 

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requested that I consider an EPA document dated August 2007 and entitled Everglades

Ecosystem Assessment: Water Management and Quality, Eutrophication, Mercury

Contamination, Soils and Habitat – Monitoring for Adaptive Management: A R-EMAP

Status Report (“REMAP Report”). Although the REMAP Report was released to the public

after EPA’s May 2006 determinations on the Phosphorus Rule, the REMAP Report is

based on data gathered in 2005. Plaintiffs argue that I should consider the REMAP Report

on the motions for summary judgment because the underlying data was available to the

EPA when the agency conducted its review of the Phosphorus Rule for its May 2006

determinations. The EPA and the DEP argue that I should not consider the REMAP report

because it was distributed after the EPA’s May 2006 determinations, and therefore EPA

could not have relied on the final document.

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The APA dictates that “the court shall review the whole record” when reviewing a

challenge to an administrative agency action, 5 U.S.C. § 706, and the Eleventh Circuit

instructs that the “focal point for judicial review of an administrative agency’s action should

be the administrative record.” Pres. Endangered Areas of Cobb’s History, Inc. (“PEACH”)

v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996) (citing Camp v. Pitts,

411 U.S. 138, 142 (1973)). A court, however, may go beyond the administrative record in

certain circumstances, such as where it appears that the agency relied on materials not

included in the administrative record or where there is a strong showing of improper

behavior by the agency. Id. at 1246-1247, n.1. In addition, the Eleventh Circuit has

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recognized that a court may consider extra-record materials that are necessary to

determine whether the agency considered all relevant factors. Sierra Club, Inc. v. Leavitt,

488 F.3d 904, 914 n.16 (11th Cir. 2007) (“On remand, Sierra Club is free to request that

the district court supplement the administrative record with these documents or consider

them as extra-record material necessary to determine whetherEPA considered all relevant

factors in making its decision. See, e.g., Inland Empire Pub. Lands Council v. United

States Forest Serv., 88 F.3d 754, 760 n.5 (9th Cir. 1996) (ruling that a court reviewing

agency action may look beyond the administrative record to determine if the agency

examined all relevant factors); United States v. Akzo Coating of Am., 949 F.2d 1409, 1428

(6th Cir. 1991) (same).”); see also Akzo Coatings, 949 F.2d at 1427-1428 (“It will often be

impossible, especially when highly technical matters are involved, for the court to

determine whether the agency took into consideration all relevant factors unless it looks

outside the record to determine what matters the agency should have considered but did

not.”); Sierra Club v. United States Army Corps of Eng’rs, 935 F.Supp. 1556, 1566 (S.D.

Ala. 1996) (allowing Plaintiff to submit two post-decision letters submitted to the Corps by

EPA and the Fish and Wildlife Service and noting that extra-record information may be

considered by a court where the agency is alleged to have “swept stubborn problems or

serious criticism under the rug” or when “such information takes the form of newly

discovered evidence which undermines the soundness of the agency’s decision”) (citing

Akzo Coatings, 949 F.2d at 1429). 

Here, the data and analysis in the REMAP Report is undeniably relevant to the

Phosphorus Rule in that the Report includes information on changes in phosphorus

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concentrations in the Everglades Protection Area. Because EPA had the data for the

REMAP report in its possession before it made its May 2006 determinations on the

Phosphorus Rule and because the EPA itself conducted the underlying studies in 2005,

I will consider the REMAP report as extra-record material necessary for this Court to

determine whether the EPA considered all the relevant factors when it made its May 2006

determinations. See Leavitt, 488 F.3d at 914 n.16. Therefore, I consider the REMAP

Report for this limited purpose in my review of the Motions for Summary Judgment, and

I grant Plaintiffs’ Motion to Complete the Administrative Record [DE 270]. 

IV. STATEMENT OF THE FACTS

None of the parties dispute that this case is appropriate for summary judgment as

to both the EFA Amendments [Plaintiffs (DE 226, p.1), EPA (DE 231, p. 1; DE 232, p. 2),

DEP (DE 234, p. 11, DE 235 p. 2), New Hope and Okeelanta (DE 237, pp. 2-3)], and the

Phosphorus Rule [Plaintiffs (DE 255, p.1), EPA (DE 274, p. 1, 276, p. 2), DEP (DE 281,

p. 12, DE 282, p. 3), New Hope and Okeelanta (DE 278, p. 5 )]. Nor is there any dispute

as to the material facts.

Because of the length of this Order, and the desire not to be unduly repetitive, I elect

to refer to the undisputed material facts gleaned from my review of each administrative

record in the respective section of the Order pertinent to the EFA Amendments and to the

Phosphorus Rule. No useful purpose would be served to restate those facts here.

Moreover, the lengthy litigation history already has been fully summarized in Chief District

Judge Davis’ opinion in Miccosukee Tribe Of Indians v. United States, 1998 WL 1805539

(S.D.Fla. Sept. 14, 1998) and my own earlier order in Miccosukee Tribe of Indians v.

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United States, 2006 WL 648055 (S.D.Fla. Feb. 16, 2006). I incorporate these recitations

by reference and conclude that each recitation is consistent with the parties’ own

statements of the case as included in their briefs. As necessary, I have expanded on the

recitation of the litigation history in the body of this Order. 

V. STANDARD OF REVIEW UNDER THE APA

The scope of review is set forth in 5 U.S.C. § 706. Under this section, the “...

reviewing court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms of an agency

action.” Id. To the extent necessary, the court may hold unlawful and set aside agency

action, findings and conclusions of law found to be arbitrary, capricious, and abuse of

discretion, or otherwise not in accordance with law. 5 U.S.C. § 706 (2)(A).

As the Eleventh Circuit has recently pointed out, “‘[t]his standard is exceedingly

deferential.’” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008)(quoting

Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996)). The Eleventh Circuit has

made clear that “[t]he court’s role is to ensure that the agency came to a rational

conclusion, ‘not to conduct its own investigation and substitute its own judgment for the

administrative agency’s decision.’” Van Antwerp, 526 F.3d at 360 (quoting PEACH, 87 F.3d

at 1246).

The fine line between “deferential review” and “arbitrary and capricious” action, or

action “not in accordance with law,” is established by the case law. An agency’s action is

arbitrary and capricious “if the agency relied on improper factors,” “failed to consider

important relevant factors,” “offered an explanation for its decision which runs counter to

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the evidence before the agency,” “committed a clear error of judgment that lacks a rational

connection between the facts found and the choice made,” U.S. Steel Corp. v. Astrue, 495

F.3d 1272, 1279 (11th Cir. 2007), or if the action is so implausible that it cannot be

ascribed to a different viewpoint or agency expertise. Leavitt, 488 F.3d at 911. 

Courts give due deference to an agency’s interpretation of a statute that it is

responsible for administering if “(1) Congress has delegated interpretive authority to the

agency, (2) the statute is silent or ambiguous with respect to the issue at hand, and (3) the

agency’s interpretation of the statute is reasonable.” Leavitt, 488 F.3d at 911-912 (citing

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)).

However, under the law of this Circuit, and important to the analysis in this case,

“[w]here the statute directly addresses an issue, we give the language of the statute effect

and accord no deference to the agency’s interpretation.” Leavitt, 488 F.3d at 912 n.12

(citing Chevron, 467 U.S. at 842-43). Similarly, if an agency’s interpretation conflicts with

the “plain meaning” of the statute, the interpretation is not entitled to Chevron deference.

Friedman v. Market Street Mortg. Corp., 520 F.3d 1289, 1297 (11th Cir. 2008) (citing

Heimmermann v. First Union Mortg. Corp., 305 F.3d 1257, 1261 (11th Cir. 2002) (“No

deference is to be given to an agency interpretation that is at odds with the plain meaning

of the statute being interpreted.”)); Leavitt, 488 F.3d at 914 (where EPA approved Florida’s

list of impaired waters, “the EPA’s data-cutoff decision contradicts the CWA’s statutory and

regulatory language such that it is not entitled to deference, see Chevron, 467 U.S. at 842-

43"); Friends of the Earth v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006) (reviewing EPA’s

interpretation of the CWA’s requirement of “total maximum daily loads” for pollutants under

Chevron and holding that EPA’s approvals of seasonal or annual loads for some pollutants

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must be vacated, noting that “EPA may not avoid the Congressional intent clearly

expressed in the text simply by asserting that its preferred approach would be better

policy.”) (citations omitted)

Agency interpretations in guidance letters, opinion letters, policy statements, agency

manuals, or enforcement guidelines are not entitled to Chevron deference. Leavitt, 488

F.3d at 915 (“Because there is no indication that the EPA’s guidance letter was the product

of a formal agency adjudication, notice-and-comment rulemaking, or any other

circumstances reasonably suggesting that Congress ever thought of guidance letters as

deserving deference, the EPA’s guidance letter is not entitled to Chevron deference.”)

(internal quotations omitted) (citing United States v. Mead Corp, 533 U.S. 218, 230-31

(2001)); Christensen v. Harris County, 529 U.S. 576, 587 (2000). 

Interpretations of a statute by an agency that is not charged with administering that

particular statute or rule are not entitled to deference. Coghlan v. Nat’l Transp. Safety Bd.,

470 F.3d 1300, 1304 (11th Cir. 2006) (“Furthermore, there is no showing that Congress

delegated authority to the FAA or NTSB to implement 2463, which is a general statute of

limitations. Accordingly, those entities’ construction and application of 2462 is not entitled

to [Chevron] deference.”); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649 (1990)

(holding that court would not defer to Secretary of Labor’s interpretation of statute’s

provision establishing private right of action where Congress expressly established the

judiciary, not the Department of Labor, as the adjudicator of private rights of action under

statute). 

In addition, “[a]n agency interpretation of a relevant provision which conflicts with

the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a

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consistently held agency view.” Am. Wildlands v. Browner, 94 F.Supp. 2d 1150, 1163 (D.

Colo. 2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (stating

that while an administrative agency is not disqualified from changing its position, the

“consistency of an agency’s position is a factor in assessing the weight that position is

due”)); United States v. Baxter Int’l, Inc., 345 F.3d 866, 887 (11th Cir. 2003) (“The

consistency of an agency’s interpretation over time is a factor in determining the level of

deference due.”); Fla. Manufactured Housing Ass’n, Inc. v. Cisneros, 53 F.3d 1565, 1574

(11th Cir. 1995) (“In addition, although an agency’s interpretation may receive some

deference even if it has changed over time, the consistency of its interpretation is an

important factor in determining the amount of deference owed.”)

Even if an agency interpretation is not entitled to Chevron deference, it is still

entitled to “respect proportional to its power to persuade.” Leavitt, 488 F.3d at 915 (quoting

Mead Corp, 533 U.S. at 234-35); see Gonzales v. Oregon, 546 U.S. 243, 256, 268 (2006)

(stating that if agency interpretation does not warrant Chevron deference, it is “‘entitled to

respect’ only to the extent it has the ‘power to persuade’, based on the ‘thoroughness

evident in its consideration, the validity of its reasoning, its consistency with earlier and

later pronouncements, and all those factors which give it power to persuade, if lacking

power to control’”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 

I now apply these standards to the EPA’s Determinations on the EFA Amendments

and the Phosphorus Rule. For reasons that I will discuss, I do not find that the EPA’s

Determinations interpreting the “plain language” of the EFA Amendments or the

Phosphorus Rule are entitled to Chevron deference.

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While there is some grammatical debate, I elect to refer to the “Everglades” in the

singular. See, e.g., Guy Martin, See you Later, Alligator, N.Y. Times, Apr. 9, 2006.

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40 C.F.R. § 131.12(3) provides “Where high quality waters constitute an outstanding

National resource, such as waters of National and State parks and wildlife refuges and

waters of exceptional recreational or ecological significance, that water quality shall be

maintained and protected.” 

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 VI. BACKGROUND AND ANALYSIS OF THE EPA DETERMINATIONS

A. The Everglades Is Unique

Few would disagree that the Everglades is unique. It is unlike any other ecosystem

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on earth. It is a national treasure and requires our utmost protection. The Congress of the

United States has said this. So has the Florida Legislature. Congress has declared that

the Everglades is an “American treasure” which includes uniquely important and diverse

wildlife resources and recreational opportunities. Water Resources Development Act of

2000, Public Law 106-541, § 602 (Dec. 11, 2000). Congress has found that the

preservation of the pristine and natural character of the South Florida ecosystem is critical

to the regional economy. Id. Based on these findings by Congress, along with the formal

designations of Everglades National Park and Loxahatchee National Wildlife Refuge, the

entire Everglades Protection Area fits the definition of “waters of exceptional recreational

and ecological significance,” as set forth in 40 C.F.R. § 131.12(3).8

Like the United States Congress, the Florida Legislature has acknowledged the

watershed’s one-of-a-kind nature in the opening paragraph of the 1994 EFA. It proclaimed

that the Everglades is irreplaceable and stated: “The system is unique in the world and one

of Florida’s greatest treasures.” Fla. Stat. § 373.4592(1)(a). Indeed, the State of Florida

has designated the Everglades National Park and the Loxahatchee National Wildlife

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The Loxahatchee National Wildlife Refuge is also called Water Conservation Area

1 or WCA 1. 

17

Refuge as “Outstanding Florida Waters” under Sections 62-302.700(9(a)(3), 9(b)(17) of 9

the Florida Administrative Code, thereby providing these waters the highest standard of

protection. Moreover, under Florida law, the Everglades National Park is also an

Outstanding National Resources Water. F.A.C. § 62-302.700(10).

 But, the Park and Refuge do not stand alone. The last remnants of the historical

Everglades include Water Conservation Areas 2 and 3. Water Conservation Area 3

primarily encompasses the tribal lands of the Miccosukee Tribe. Of importance to this

case, the Miccosukee’s tribal lands are located immediately south of points of discharge

into the Everglades Protection Area through South Florida Water Management District

structures. The water flow is in a southerly direction into the tribal lands. Water

Conservation Areas 2 and 3 are all interconnected with the Refuge and the Park, and,

collectively, are defined by the Florida Legislature to be the “Everglades Protection Area.”

[See Appendix A to this Order for an overview of the Everglades Protection Area].

B. The Everglades is Endangered by Excessive Levels of Phosphorus.

The Everglades is an oligotrophic system, meaning it is naturally low in nutrients.

In the case of an ecologically healthy Everglades, the system is poor in the nutrient

phosphorus. There is also a disproportionately low level of phosphorus in relation to the

presence of other nutrients (nitrogen and potassium) so that the system is described as

not only oligotrophic but “phosphorus limited,” as well. Thus, the nutrient-lean

(oligotrophic) condition of the aquatic ecosystems is one hallmark characteristic of the

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10

In the 1988, the federal government sued the South Florida Water Management

District (“SFWMD” or “the District”) and the Florida Department of Environmental

Regulation (now known as the Department of Environmental Protection (DEP)) alleging

that Florida and the District were not enforcing Florida’s water quality standards in

Everglades National Park or the Refuge. Specifically, the Complaint alleged that

agricultural runoff water entering the Refuge and Everglades National Park through

structures operated by the District violated Florida’s water quality standards. See United

States v. S. Fla. Water Mgmt. District, 847 F.Supp. 1567, 1569 (S.D. Fla. 1992), aff’d in

part, 28 F.3d 1563 (11th Cir. 1994). 

The parties entered into a comprehensive settlement in 1991. In this Settlement

Agreement, the narrative phrases “imbalance in natural populations of aquatic flora and

fauna” and “imbalance of flora and fauna” were defined to include nutrient additions which

result in the replacement or loss of native periphyton algal species, or native sawgrass and

wet prairies being replaced with dense cattails or other nutrient-altered ecosystems.

Settlement Agreement, at 3 [Case No. 88-1886, DE 1105, Ex.1]. In this Settlement

Agreement, the parties agreed that the ecosystems of the Everglades National Park and

the Refuge are changed by even slight increases in the concentration of phosphorus. Id.

at 6. The parties also agreed that the surface water entering the Refuge contained nutrient

levels which caused imbalances in violation of Florida’s water quality standards. Id. at 7-8.

Although the Settlement Agreement set limits and levels of phosphorus only as to the

Refuge and the Park, it explicitly recognized that the “maintenance of state water quality

standards within the WCAs is crucial to the ecology of the Park.” Id. at 7. 

The interim phosphorus concentration limits and levels for the Refuge and the Park

were to be attained by July 1, 1997, and the long-term phosphorus concentration limits and

levels for the Refuge and the Park were to by attained by July 1, 2002. Id. at 4. The

Settlement Agreement further provided that inflows to the Refuge had to result in

compliance with the long-term compliance levels or Florida’s Class III water quality criteria,

whichever was lower, by July 1, 2002. Id. at 11. Under the Settlement Agreement, the

“State Parties shall take such action as is necessary so that waters delivered to the Park

and the Refuge achieve state water quality standards, including Class III standards, by July

1, 2002.” Id. at 9. 

The parties also agreed to take action if standards were not being met: under the

Settlement Agreement, the Florida Department of Environmental Regulation (now DEP)

agreed to enforce more stringent inflow discharge limits if, by July 1, 2002, the Refuge was

not in compliance with the lower of the Class III nutrient water quality criteria or the longterm concentration levels. Id. at 11. 

In addition, the Florida parties agreed to initiate a regulatory program with the goal

of reducing total phosphorus from the Everglades Agricultural Area into Storm Treatment

Areas, which are large-scale wetland treatment systems. Id. at 12, 14, 17. Under this

regulatory program, permits would be required for the discharge of water from the EAA.

Id. Permit applications would be required to meet long-term phosphorus limits and institute

18

unspoiled Everglades. Settlement Agreement at 7 [Case No. 88-1886, DE 1105, Ex.1].10

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special farming practices, called Best Management Practices (“BMPs”), designed to meet

interim and long-term phosphorus limits. Id. The Settlement Agreement further provided

that compliance with these phosphorus limits would be determined by measuring flow and

concentration at the permit applicant’s property boundary. Id. at 18. The District also

agreed to construct over 35,000 acres of Storm Treatment Areas (“STAs”) within the

Everglades Agricultural Area to reduce phosphorus discharges. Id. at 12, 14.

On January, 24, 1992, Senior District Judge William M. Hoeveler allowed “limited

intervention” to the Miccosukee Tribe for the purpose of permitting the Miccosukee Tribe

to invoke the Court’s continuing jurisdiction to enforce settlement agreement to protect

rights and interests of Miccosukee Tribe. Order, Jan. 24, 1992 [Case No. 88-1886, DE

1193]. 

The Settlement Agreement was then approved by Judge Hoeveler and entered as

a consent decree on February 24, 1992. United States v. S. Fla. Water Mgmt. District, 847

F.Supp. 1567 (S.D. Fla. 1992), aff’d in part, 28 F.3d 1563 (11th Cir. 1994). In his order,

Judge Hoeveler recognized that the Settlement Agreement established both interim and

long-term limits on phosphorus concentrations in Everglades National Park and the

Refuge. Id. at 1569. In particular, Judge Hoeveler noted that “the District or [the Florida

Department of Environmental Regulation, now DEP] will regulate the water quality of

agricultural discharges through a permitting scheme by which permit applicants will be

required to comply with the designated phosphorus load allocations and adopt best

management practices aimed at reducing the levels of phosphorus in agricultural

discharge.” Id. at 1570. 

19

Undisputed scientific research has documented that long-term exposure to excess

phosphorus allows flora not adapted to oligotrophic environments to overcome the native

communities over time. Simply put, the Everglades ecosystems are changed by even

slight increases in nutrient concentrations, particularly increases in the concentration of

phosphorus. Id. at 7. Excess phosphorus accumulates in the peat underlying the water,

alters the activity of microorganisms in the water, and disturbs the natural species

composition of the algal mat (periphyton) and other plant communities in the marsh. Id.

at 7. These disturbed communities deplete the marsh of oxygen and, ultimately, result in

native sawgrass and wet prairie communities being replaced by dense cattail stands or

other nutrient-tolerant ecosystems. The ability of the ecosystem to serve as habitat and

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11

In light of the 1994 EFA, the United States, the District, and the DEP jointly moved

to modify the consent decree that Judge Hoeveler had issued in 1992 following the 1991

Settlement Agreement in that case. See Omnibus Order, April 27, 2001 at 2 [Case No. 88-

1886, DE 226, Ex.B] (Hoeveler, J.). The Miccosukee Tribe was an intervenor in that case,

and it moved to enforce the Settlement Agreement and Consent Decree and asked the

Court to appoint a special master to oversee implementation. 

In his Omnibus Order issued on April 27, 2001, Judge Hoeveler modified his 1992

consent decree to reflect the timetable in the 1994 EFA, noting that many of the deadlines

in the 1992 consent decree had already lapsed. Id. at 2, 27. In modifying the consent

decree, however, Judge Hoeveler noted that “by endorsing this extended schedule, the

Court fully expects that the parties will achieve compliance as mandated by the Modified

Consent Decree and the EFA.” Id. at 24. 

In the Modified Consent Decree, the new timetables track those of the 1994 EFA.

For example, the Modified Consent Decree provides that “[t]he State Parties shall take

such action as is necessary so that waters delivered to the Park and the Refuge achieve

20

forage for the native wildlife is thereby greatly diminished or destroyed. Id. at 7. 

The effect of excess phosphorus on the Everglades is not in dispute. In the

Settlement Agreement, the State of Florida acknowledged that water flowing from the

Everglades Agricultural Area (“EAA”) into the Refuge and the Park contained excess

nutrients that violated Florida’s water quality standards by causing imbalances in the

natural aquatic flora and fauna. Id. at 7-8. These violations were so severe that they

threatened “the ecological integrity and ultimately the survival of the Park and Refuge.” Id.

at 7. The water flowing from the EAA was causing “potentially devastating degradation”

of Everglades waters, and “threatens to devastate the ecosystems in the Park and

Refuge.” Id. at 8. The Settlement Agreement established a schedule for ensuring that

EAA runoff into the Everglades met state water quality standards by 2002, id. at 9, but this

date was later changed by modifications to the Consent Decree to coincide with the date

of December 31, 2006, as established by the 1994 EFA. See Omnibus Order, Apr. 27,

2001 [Case No. 88-1886, DE 226, Ex.B] (Hoeveler, J.).11

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state water quality standards, including Class III standards, by December 31, 2006.” Id.,

Appx. A, 1 (citing page 9, paragraph 5 of the Consent Decree). In addition, the Modified

Consent Decree also provides that phosphorus loads in discharges from the EAA would

be reduced to the Everglades Protection Area by 80% by October 1, 2003 and to the

Refuge by 85% by February 1, 1999. Id. at 2 (citing page 10, paragraph 8.A in the

Consent Decree). The Modified Consent Decree mandates that inflows to the Refuge

must result in compliance with the lower of Class III water quality criteria or long term

concentration levels by December 31, 2006. Id. at 3 (citing page 11, paragraph 8.C of the

Consent Decree).

21

 As recognized in the 1994 EFA, the “Everglades ecological system is endangered

as a result of adverse changes in water quality, and in the quantity, distribution and timing

of flows, and, therefore, must be restored and protected.” Fla. Stat. § 373.4592(1)(a)

(1994). The Florida Legislature specifically found that waters flowing into the Everglades

Protection Area contain excessive levels of phosphorus, and that a reduction in levels of

phosphorus will benefit the ecology of the Everglades Protection Area. Fla. Stat. §

373.4592(1)(d) (1994). Accordingly, one of the 1994 EFA’s primary objectives was to

reduce phosphorus levels entering into the Everglades Protection Area.

The 1994 EFA contained many of the same requirements as the Settlement

Agreement, but established different timetables. See generally Fla. Stat. § 373.4592

(1994)(and later discussion in this Order). Section 4 of the 1994 EFA directed the South

Florida Water Management District (“District”) to establish the Everglades Construction

Program which contained eighteen separate projects. Fla. Stat. § 373.4592(4)(a) (1994).

The primary component of the project was the construction of six Stormwater Treatment

Areas, or STAs, by 2003. Id. The STAs are thousands of acres of man-made marshes

designed to filter phosphorous and other nutrients out of the EAA’s water runoff before it

flows into the Everglades Protection Area. 

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12

In 1968, regulations were promulgated in Florida which enumerated five classes of

beneficial uses of surface waters that would be protected. These classes are: (1) Class I:

Potable Water Supplies; (2) Class II: Shellfish Propagation or Harvesting; (3) Class III:

Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish

and Wildlife; (4) Class IV: Agricultural Water Supplies; (5) Class V: Navigation, Utility and

Industrial Use. F.A.C. § 62-302.400(1). The surface waters in the WCAs and the

freshwater portion of Everglades National Park are Class III waters. Sugar Cane Growers

Cooperative v. Dep’t of Environmental Protection, Case No. 03-02884RP (Final Order,

22

C. The 10 ppb Standard as the Essential Limit on Water Phosphorous

Concentration Discharging into the Everglades Protection Area

The 1994 EFA codified and expanded the phosphorus reduction program of the

Settlement Agreement by the adoption of the “Everglades Program.” Fla. Stat.

§373.4592(2)(h); (4)(a); (4)(f) (1994). The most controversial EFA provision at the time

was its program for reducing phosphorus loads to the point where they no longer caused

an imbalance in the natural aquatic flora and fauna. Miccosukee Tribe, 1998 WL 1805539,

at *6 (Davis, J.). Like the Settlement Agreement, the 1994 EFA established a long-term

research and monitoring program to develop a numeric concentration level of phosphorous

that would not cause an imbalance in the Everglades Protection Area and the Everglades

Agricultural Area (EAA). While the 1994 EFA required the State of Florida and the South

Florida Water Management District to employ all means practicable to complete by

December 31, 1998 all necessary research to numerically interpret the existing narrative

standard, id. at § 373.4592(4)(e)(1994), the 1994 EFA did not require the agencies to finish

their research until 2001, nor did it require the State to develop a numeric concentration

level until 2003. 

But, while all of this was going on, the 1994 EFA’s Class III narrative nutrient

criterion remained in effect as the state water quality standard applicable to the 12

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June 17, 2004) [PR-AR-35], aff’d, Miccosukee Tribe of Indians v. New Hope Sugar Co.,

906 So.2d 1064 (Table) (Fla. 1st DCA 2005) at 50-51 (“Administrative Order”). The EAA

and the C-139 Basin also contain Class III waters. EPA Sept. 1999 Determination at 10

[AR–PH-8] (“The narrative criterion also applies to all Class III waters tin the EAA and C139 Basins except for the Class IV agricultural canals.”) 

The following narrative criterion for nutrients in Class III waters appears in

Subsection 62-302.530: 

(48)(a) Nutrients – The discharge of nutrients shall continue to be limited as

needed to prevent violations of other standards contained in this Chapter.

Man-induced nutrient enrichment (total nitrogen ortotal phosphorus) shall be

considered degradation in relation to the provisions of Sections 62-302.300,

62-302.700, and 62-4.242 F.A.C.

13

Although the 1994 EFA did not define the terms “imbalance” or “natural populations

of aquatic flora and fauna,” it did direct that the criterion “shall not be lower than the

natural conditions of the [Everglades Protection Area],” and that the criterion “shall take into

account spatial and temporal variability.” Fla. Stat. § 373.4592(4)(e)(2) (1994).

23

Everglades Protection Area. The 1994 EFA unequivocally provided that “[i]n no case shall

such phosphorus criterion allow waters in the Everglades Protection Area to be altered so

as to cause an imbalance in the natural populations of aquatic flora and fauna.” Fla. Stat.

§ 373.4592(4)(e)2 (1994) (emphasis added). The words “In no case ....” are clear and

absolute. The words, “In no case....” created a mandate, with power and force, that the

phosphorus criterion must not allow waters in the Everglades Protection Area to alter the

natural balance of flora and fauna. As discussed below, the Amended EFA and the

Phosphorus Rule depart from this mandate.13

With regard to the need for a numeric criterion for phosphorus, the 1994 EFA stated

that “[t]he phosphorus criterion shall be 10 parts per billion (“ppb”) in the Everglades

Protection Area in the event that the department [DEP] does not adopt by rule such

criterion by December 31, 2003.” Fla. Stat. § 373.4592(4)(e)2 (1994). This is referred to

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24

as the “Default Provision;” that is, the phosphorus numeric criterion that would apply by

default in the event an implementing rule was not timely adopted. The Legislature

recognized that the DEP’s phosphorus criterion, whenever adopted, would supersede the

10 ppb criterion, but required that it “shall not be lower than the natural conditions of the

Everglades Protection Area.” Id. 

Lest there be any confusion on the point, the 1994 EFA’s mandate to adopt a

numeric interpretation of the narrative criterion, and its interim adoption of the default

provision, is set forth under Section 373.4592(4)(e) (1994), entitled “Evaluation of Water

Quality Standards.” Under subsection 3 of that section, the 1994 Florida Legislature

imposed on the Department or the District the obligation to establish discharge limits in

permits for discharges into the EAA canals and the Everglades Protection Area that were

necessary to prevent an imbalance in the natural populations of aquatic flora or fauna in

the Everglades Protection Area and to provide a net improvement in the areas already

impacted. Fla. Stat. § 373.4592(4)(e)(3) (1994).

In 2004, the EPA approved the default criterion of 10 ppb for the Everglades

Protection Area. EPA May 2004 Determination, at 1-2 [PR-AR-12]. This was not the first

time that EPA recognized that discharges into the Everglades Protection Area with

phosphorus concentrations in excess of 10 ppb to the Everglades would have adverse

consequences to the ecosystem, causing imbalances in natural populations of aquatic flora

and fauna. In its Ambient Water Quality Criteria Recommendations from December 2000

[PR-AR-27], the EPA recommended a numeric criterion of 10 ppb of total phosphorus in

the water column as a long-term value for the Everglades. See PR-AR-27 at 7. In its 1999

Determination Approving the Tribe’s Water Quality Standards [PR-AR-10], the EPA

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25

determined “10 ppb phosphorus is a scientifically defensible value which is not overly

protective and will protect the designated use adopted by the Miccosukee Tribe for its

Tribal waters.” EPA May 1999 Determination, at 2 (emphasis added). Likewise, in 2005,

the EPA later found “[s]cientific demonstrations have indicated that a long-term phosphorus

criterion exceeding 10 ppb would not be protective of natural populations of aquatic flora

and fauna in the Everglades.” EPA Jan. 2005 Determination, at 5 [PR-AR-69]. Thus,

without dispute, both the EPA and the Florida Legislature have recognized that if the water

flowing into the Everglades Protection Area has a phosphorus concentration of 10 ppb, the

phosphorus in the inflows of water would not cause an imbalance of the natural

populations of aquatic flora and fauna. 

D. Chief Judge Davis’ Opinion (on remand)(Davis Opinion); the 1999 EPA

Determination, and the December 31, 2006 Deadline

While the 1994 EFA appears at first glance to be protective, the 1994 EFA in fact

further changed Florida’s water quality standards by postponing compliance with the

narrative and numeric standards for phosphorous through 2006 by adoption of a

compliance schedule for dischargers into the Everglades Protection Area and for the

District. Of significant importance, the 1994 EFA, while recognizing that a long-term

phosphorus criterion exceeding 10 ppb would not be protective of natural populations of

aquatic flora and fauna in the Everglades Protection Area, nonetheless enacted a twelveyear compliance schedule for its implementation through, and including, December 31,

2006. During that time period, the 1994 EFA altered water quality standards by effectively

suspending enforcement of the narrative phosphorus criterion (and the later adopted

default criterion) until the end of 2006. These issues were initially addressed in Chief Judge

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14

As noted in the Davis Opinion, the 1994 EFA directs the District, in conjunction with

EAA farmers, to develop and enforce a regulatory program known as Best Management

Practices, or BMPs. Fla. Stat. § 373.4592(4)(f) (1994). BMPs are farming practices, such

as stormwater retention, sediment control, and restrictions on use of fertilizers and

pesticides, that the District determines to be the most effective way of improving water

quality in agricultural discharges to a level that balances water quality improvements and

agricultural productivity. Another provision establishes an Agricultural Privilege Tax on

farmers doing business in the EAA and nearby areas. Farmers who use BMPs and achieve

at least a 25% reduction in the amount of phosphorous coming from their land are entitled

to a reduction in the tax. Miccosukee Tribe, 1998 WL 1805539, at *6.

26

Davis’s 1998 opinion, Miccosukee Tribe, 1998 WL 1805539, and later by District Judge

Patricia A. Seitz in Friends of the Everglades v. EPA, Case No. 00-935-CIV-SEITZGARBER (S.D.Fla. 2001).

1. The Davis Opinion

The Davis Opinion concluded that the 1994 EFA gave dischargers until 2006 to

comply with the numeric phosphorus criteria and to otherwise meet the narrative criterion.

The Davis Opinion primarily focused on the provisions which allowed permittees within the

EAA and the C-139 Basin [who pay a fee under the Everglades Program and meet the

Everglades BMP Program] to be excused from implementing additional water quality

14

improvement measures prior to December 31, 2006. Fla. Stat. § 373.4592((f)(3) (1994).

As noted in the Davis Opinion, Miccosukee Tribe, 1998 WL 1805539, at *7, the 1994 EFA

provided that, as of December 31, 2006, all permits, including those issued prior to that

date, “shall require implementation of additional water quality measures, taking into

account the water quality treatment actually provided by the STAs and the effectiveness

of the BMPs.” Fla. Stat. § 373.4592(4)(f) (1994). It mandated that “[a]s of that date, no

permittee’s discharge shall cause or contribute to any violation of water quality standards

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15

Following the Davis Opinion, the EPA, in 1999, reviewed section 4(f) of the 1994

EFA as a revision to Florida’s water quality standards. The EPA’s September 1999

Determination is discussed in detail in this Order. 

27

in the Everglades Protection Area.” Id.

Thus, while certain provisions of the 1994 EFA first declared that “in no case” would

the phosphorus criterion allow waters in the Everglades Protection Area be altered so as

to cause an imbalance, other provisions of the 1994 EFA granted a twelve year

postponement from the date of enactment for compliance with the phosphorus criterion

through 2006. As EPA later commented in its September 1999 Determination, the effect 15

was to amend the narrative and numeric standards themselves. See EPA Sept. 1999

Determination, at 6-7, 14-18 [EFA-AR-8]. This aspect of the 1994 EFA is important to this

Court’s consideration of the Amended EFA and to the changes in water quality standards

that the Amended EFA enacted. 

Returning to Judge Davis’ Opinion, I note his concern that the CWA and

accompanying regulations did not allow states a twelve year compliance period to meet

water quality standards. He feared that by not requiring farmers to implement additional

water quality measures until 2006, the 1994 EFA allowed those discharges of phosphorous

that violated Florida’s narrative standard for nutrients to continue until 2006. According to

Judge Davis, this was not a reasonable compliance schedule, but a de facto suspension

of, and therefore a change in, water quality standards. Miccosukee Tribe, 1998 WL

1805539, at *16 (Davis, J.).

There was another aspect of the 1994 EFA, and of Judge Davis’ Opinion, as to

which EPA did not comment in its 1999 Determination, but which also is of major

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16

The Davis Opinion cited to numerous EPA and Department statements supporting

the conclusion that water quality standards for both the farmers and the District did not

have to be met until 2006. Miccosukee Tribe, 1998 WL 1805539, at *7 (“Depo. of Fritz

Wagener of the EPA at 26 (‘Q: So simplified what you're saying is that perhaps water

quality standards are not being met but they'll be met in the year 2006? A: I think that's a

short characterization of that, yes.’); Depo. of Robert McGhee of the EPA at 142 (‘We

reviewed the compliance schedules in the Everglades Forever Act and we recognized that

water quality standards have been violated, are being violated and will continue to be

violated until all of the actions that are necessary to prevent those violations have been

taken.’), 154-55 (‘it directs them to be in compliance with water quality standards by such

and such a date. So they are continually up to that point in a violation mode of water quality

standards. Q: It allows them to be in a violation mode until the year 2006, right, basically?

A: Yes.’); A.R. at 203 (testimony of Frank Nearhoof of the Florida Department of

Environmental Protection) (‘Q: And structures that are not in compliance do not have to be

in compliance until 2006 under the statute. Isn't that correct? A: That's correct.’), 3989,

4013, 4105, 4107 (Department of Environmental Protection report) (intent of the EFA is

that by December 31, 2006, the state and the District shall take necessary action so that

water delivered to the Everglades complies with state water quality standards), 6150 (U.S.

Army Corps of Engineers report) (‘the District will ... ensure that all discharges, from both

28

significance to this case. After pointing out that EAA farmers did not have to comply with

the narrative and numeric levels until December 31, 2006, Judge Davis went on to state

that “[i]n fact, it is not until that date that anyone discharging phosphorous into the

Everglades must comply with state water quality standards.” Id. at *7. As support, Judge

Davis referred to the Section 4(f) provision discussed above (dealing with the farmers), but

also directly cited to Section 373.4592(10) (1994). Section 10 provided that by December

31, 2006, the Department and the District shall take such action as may be necessary so

that water delivered to the Everglades Protection Area achieved state water quality

standards. By this provision, the District, like the farmers, was relieved of meeting the

narrative and numeric phosphorous criteria for its Everglades Construction Project until

2006.

 Judge Davis’ conclusion was correct. Under Section 10 of the 1994 EFA, the 16

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public and private interests, to the Everglades achieve compliance with applicable state

water quality standards by December 31, 2006'”). 

29

District was mandated to submit to the Department a permit modification to incorporate

proposed changes to the Everglades Construction Project and to the permits issued

pursuant to Section 9 of the EFA. Critically, the 1994 EFA provided that “[t]hese changes

shall be designed to achieve state water quality standards by December 31, 2006.” Fla.

Stat. §373.4592(10)(a) (1994) (emphasis added). Similar to the farmers, this was a de

facto suspension of water quality standards as applied to the district’s Everglades

Construction Projects and Section 9 permits. For whatever reason, the EPA chose not to

comment on section (10) of the 1994 EFA and only addressed the effect of Section 4(f) in

its September 1999 Determination.

2. The EPA 1999 Determination

Although the EPA had originally contended that the 1994 EFA did not result in a

change in water quality standards, EPA changed its position while the Davis Opinion was

on appeal with the Eleventh Circuit. It then decided to review only “certain” provisions of

the 1994 EFA as revisions to Florida’s water quality standards. EPA claimed that it’s review

could be limited because, in its view, the Davis Opinion only found portions of Section 4(f)

of the 1994 EFA to be a change in water quality standards. Thus, the EPA chose not to

address the identical Section 10 provisions of the 1994 EFA dealing with the District.

Regardless, even if the EPA had reviewed Section 10 as a change in Florida water quality

standards, it no doubt would have concluded that the change would have likewise

constituted a “reasonable compliance schedule.” 

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17

The EPA was very specific about the record it reviewed to determine if the

compliance schedule set out in the EFA was needed, was as short as practicable and did

not preclude earlier compliance. In preparing its determination, EPA compiled a “record”

on the “reasonableness” of a twelve year compliance schedule. EPA Sept. 1999

Determination at 9 n.14 [EFA-AR-8]. The record addressed the size and complexity of the

Everglades and the nature of the problem (id. at 9); the lack of technology available (id. at

10); the status of the BMPs and STA (id. at 11); the steps necessary to achieve

compliance with Phase II technologies; and availability of funding (id. at 17). The EPA also

found it significant that the twelve-year schedule outlined in the 1994 EFA for completion

of the restoration program was very similar to the schedule set out in the Settlement

Agreement resolving of the original Everglades litigation, and supported by the State, the

federal government, and the Micosukee Tribe as reasonable (id. at 16). The EPA

mentioned that during the hearings before Judge Hoeveler on the Motion to Amend

Settlement Agreement, “a great deal of testimony was heard on the reasonableness of the

2006 compliance schedule.” Id. at 17. As discussed at length later in this Order, none of

these factors are present in the current EPA Determinations on the Amended EFA and the

Phosphorous Rule, nor does the EPA make reference to them in its later Determinations.

30

I do not take issue with the EPA for its 1999 Determination, especially given the

Eleventh Circuit’s unpublished affirmance of Judge Patricia A. Seitz’s Order which upheld

it. See footnote 18 below. For detailed and scientifically based reasons set forth in its

1999 Determination, the EPA concluded that amending the narrative criterion by 17

incorporating a reasonable compliance schedule did not violate the CWA. But, in its 1999

Determination, the EPA also made it clear that “any new interpretation of the

phosphorus criterion, any variance, site specific alternative criterion or other similar

interpretation of the EFA that changes standards would require review by EPA as a

change to Water Quality Standards.” EPA Sept. 1999 Determination, at 2 n.2 [EFA-AR8] (emphasis added). It acknowledged that the compliance schedule “applies to not only

the current narrative but also to the future numeric criterion.” Id. at 5 n. 9. As the EPA

framed the issue, “[w]here, as here, a state adopts as part of the standard itself a

compliance schedule for a particular existing criterion, the issue for EPA’s review is

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31

whether the criterion as so amended is consistent with the requirements for criteria set

forth in section 303(c)(2)(A) and 40 C.F.R. § 131.11.” Id. at 7. For reasons that I will

discuss, this same question is absolutely pertinent to the EFA Amendments and to the

adoption of the Phosphorus Rule, but, yet, it was not even posed by the EPA in its later

Determinations on the Amendments or the Rule, let alone answered in either case.

 In assessing this issue in 1999, the EPA determined that, considering the “real world

effect,” inclusion of an “appropriately enforced compliance schedule might in fact lead to the

most expeditious achievement of the level of water quality specified by the narrative

criterion and hence provide the best means for protection in the real world.” Id. at 8. Thus,

EPA concluded that “it would be possible to regard a narrative criterion with a compliance

schedule as still protective if the criterion was ‘currently unattainable’ due to lack of available

control mechanisms to ensure that the appropriate technology was developed and put into

operation as soon as possible; and the period of nonattainment was limited to the time

needed to develop and implement that technology with the goal of meeting the criterion by

the end of the compliance period.” Id. at 8 (emphasis added). Most importantly, EPA

considered whether there was “an enforceable framework that ensured the numeric water

quality criterion for phosphorus would be met by the December 31, 2006, deadline in the

EFA or sooner if possible.” Id. at 9 (emphasis added). It essentially concluded that the

Everglades would be protected because “[t]he EFA incorporated a permitting scheme, and

adopted provisions to ensure that by December 31, 2006, discharges into the Everglades

Protection Area will no longer cause or contribute to any violations of state water quality

standards.” Id. at 5 (emphasis added). It finally concluded that the “reasonableness and

acceptability of the 12 year schedule also assumed that the December 31, 2006, deadline

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18

 On appeal, the Eleventh Circuit concluded that the EPA did not act arbitrarily by

determining that a state water quality standard can incorporate a reasonable compliance

schedule for meeting the standard. Friends of the Everglades, Case No. 01-16482, at 3

(11th Cir. July 19, 2002) [Case No. 00-935, DE 83].

19

In Florida, the rulemaking body for the DEP is the ERC. See, e.g., Fla. Stat. §

403.804. Like the 1994 EFA, the Amended EFA provided for rulemaking to establish a

numeric criterion for phosphorus. The ERC officially began its rulemaking for a numeric

phosphorus rule in January 2002, while the 1994 EFA was in force. See documents for

December 11, 2001, and January 31, 2002, ERC meetings [PR-AR-32]. The ERC adopted

the Phosphorus Rule in July 2003, and the Rule was administratively challenged as an

invalid exercise of delegated authority. It was upheld by an administrative law judge on

June 17, 2004. Sugar Cane Growers Coop. v. Dep’t of Envtl. Prot., Case No. 03-02884RP

32

will be met.” Id. at 9 n.15. 

Upon later review, Judge Patricia A. Seitz found that the EPA did not act arbitrarily

or capriciously in deciding that the water quality standard revised by the Florida Legislature

complied with the CWA based on the record before it. But, Judge Seitz stated in her

conclusion that “[l]ike EPA, the Court anticipates that the state will continue to implement

all necessary measures to ensure that the Everglades will be Class III waters by December

31, 2006.” Order dated Oct. 18, 2001 at 21 (Seitz, J.) [Case No. 00-935, DE 77]. As we 18

will see, the deadline for compliance was not met. Instead, the Florida Legislature simply

changed the deadline for compliance.

E. The Prelude to the Amended EFA 

1. Events Occurring in 2003

A number of events were scheduled to occur in 2003 which remain pertinent to any

consideration of the 2003 EFA Amendments. First, the default provision was set to go into

effect at the end of 2003 because no substitute phosphorous rule could be timely adopted

by the Florida Environmental Regulation Commission (“ERC”). In fact, the EFA 19

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(Final Order, June 17, 2004) (“Administrative Order”) [PR-AR-35]. The Phosphorus Rule

was subsequently promulgated on July 15, 2004, and amended on May 25, 2005. The

Plaintiffs challenge the 2005 version of the Rule. 

20

Based on the ERC meeting documents [PR-AR-32 and the index to PR-AR-32], the

first meeting took place on December 11, 2001, and the ERC’s proceedings on the

Phosphorus Rule officially opened at the ERC meeting on January 31, 2002.

21

See Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594,

599 (Fla. 1st DCA 2000) (holding that a regulation must implement and be based upon a

specific delegation of authority in order to be valid). 

33

Amendments were being enacted while the ERC hearings were being held. See ERC

meeting documents [PR-AR-32]. 

20

 Second, under Florida law, the governing law, being the 1994 EFA, had to be

amended to include any new compliance deadlines and moderating provisions if those

changes were to be considered by the ERC as part of the proposed Phosphorus Rule. This

is because any rule adopted had to be in accord with the enabling statute or it would

constitute an unlawful delegation of legislative authority. 

21

 Third, by December 31, 2003, the District was required, under § 373.4592(10)(a)

(1994) of the Florida Statutes, to submit an application for permit modification to

incorporate proposed changes to the Everglades Construction Project, and these changes

had to be “designed” to achieve compliance with state water quality standards by

December 31, 2006. This meant actual compliance by the District with the narrative and

numeric criteria.

 Fourth, by December 31, 2006, the Department and the District had to take such

action as may be necessary so that water delivered to the Everglades Protection Area

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34

“achieved” state water quality standards, including the phosphorus criterion. Fla. Stat. §

373.4592(10) (1994). 

 Fifth, the deadline was approaching for the farmers as well; that is, by December 31,

2006, no permittee’s discharge into the Everglades Protection Area and the EAA canals

could cause or contribute to any violation of water quality standards in the Everglades

Protection Area. 

 Lastly, the deadline of December 31, 2006 in the Settlement Agreement Consent

Decree was quickly approaching. Judge Hoeveler had previously modified the Consent

Decree to extend the deadline until December 31, 2006 and no further request for

modification of the Consent Decree was pending. 

Thus, to summarize, immediately prior to the Amendments to the EFA, the default

numeric phosphorus criterion was going to be applicable to the entire Everglades

Protection Area, and, after December 31, 2006, no discharges could cause phosphorus

concentrations higher than 10 ppb anywhere in the Everglades Protection Area.

Furthermore, based on the narrative criterion, “in no case” could the nutrient concentration

anywhere in the Everglades Protection Area cause an imbalance of flora and fauna after

December 31, 2006.

2. The Draft Long-Term Plan

The beginning of the effort to amend the 1994 EFA can be traced back to the

Governing Board of the South Florida Water Management District (“District”) which had the

obligation to submit an application for permit modification designed to achieve water quality

standards by December 31, 2003. The permit application was to be in accordance with

the District’s proposed Long-Term Plan. The original draft Long-Term Plan, as submitted

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22

At the March 27, 2003, hearing before the Environmental Regulation Commission

(“ERC”), Commissioner Tschinkel raised her “fundamental concern” about a rumor that a

meeting had been held to discuss “very serious and very specific proposed amendments

to the Everglades Forever Act.” PR-AR-33, Tr. 3/27/03 at 10, 14 (Transcript of ERC

Hearing). She discovered through non-DEP or ERC channels that there was an

“unprecedented . . . in the middle of rulemaking, an attempt by one of the parties to change

the actual-the act on which we’re currently adopting the rule.” Id. at 11. She characterized

35

by the District’s staff, included a strategy for achieving the long-term Everglades water

quality objective “to ensure that all waters discharged to the Everglades Protection Area

achieve water quality standards by December 31, 2006, consistent with the requirements

of [the EFA] . . . .” Exec. Summary, March 17, 2003 Long-Term Plan, at ES-1 [PR-AR-32,

3-27-2003, doc. 6]. The Long-Term Plan was to fulfill obligations “under both the EFA .

. . and the federal Everglades Settlement Agreement . . . .” Id. Thus, the original concept

of the Long-Term Plan, as presented to the District’s Governing Board, was to meet

established deadlines.

On March 12, 2003, the District’s Governing Board modified the Long-Term Plan.

It changed the Plan’s objective to achieve, through “optimization, to the maximum extent

possible, a predicted long term geometric mean phosphorus concentration in discharges

to the Everglades Protection Area . . . .” Id. at ES-5 (emphasis added). It then defined “a

more realistic pace towards achieving the phosphorous criterion in discharges to the

Everglades.” Id. at ES-6 (emphasis added). The March 2003 Plan noted that, “[u]pon

initial review, it appears that the revised plan objective does not substantially modify the

capital improvements or scientific investigations recommended in the draft plan, only the

schedule for ultimately achieving the phosphorous criterion and its associated

natural variability in discharges to the Everglades.” Id. (emphasis added).22

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these actions as a “very serious breach of . . . procedure,” and was concerned that nobody

at the DEP spoke to them about this, especially given that the ERC is “the exclusive rulemaking group for the Department of Environmental Protection.” Id. at 10, 11, 13.

23

The 1994 EFA was amended through two bills: CSSB No. 54-1 (Laws of Florida, Ch.

2003-394) and CSSB No. 626 (Laws of Florida, Ch. 2003-12). Because the second bill

amended provisions passed and signed into law in the first bill, the Court’s discussion is

directed to the final adopted bill, unless otherwise stated. 

36

F. The Amended EFA, the EPA November 5, 2003 Determination, and the

Court’s APA Analysis

The Amended EFA is an adroit legislative effort to obscure the obvious. In certain

provisions, it appears to leave the narrative and default numeric criterion unchanged.

However, the totality of the Amended EFA effectively suspends the enforcement of the

narrative and default phosphorus criterion through 2016 and, in lieu, creates new or revised

water quality criterion based upon TBELs established through BAPRT [the Long-Term

Plan]. 

But, as adroit as it is, the amendment effort was not initially successful because the

original bill had to be amended to include a second “Glitch Bill,” Senate Bill 54A, enacted

on July 1, 2003 [EFA-AR-2] that removed the more blatant changes, such that the 23

phosphorus criterion would be achieved “at the earliest practicable date” and that the LongTerm Plan would achieve water quality standards in the Everglades Protection Area only

“to the maximum extent practicable.” EFA-AR-2; see § 373.4592(2)(a), (3)(d), (3)(e), and

(10)(a). 

While the Glitch Bill removed these changes, it kept the same “effect” with other

language, as described below. And, at the same time, the Glitch Bill also removed

protective language which was in the initial bill. The Glitch Bill removed language from the

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37

original which provided “[u]nder no circumstances shall the project or strategy [referring to

the District’s modification’s to the Everglades Construction Project] contribute to violation

of state water quality standards.” Compare Fla. Stat. § 373.4593(10)(a) (May 20, 2003)

with Fla. Stat. § 373.4593(10)(a) (July 1, 2003). Without such restriction, the inference is,

given the context of all the other amendments, that such project or strategy may contribute

to violation of state water quality standards [meaning the narrative and numeric criterion]

so long as there is compliance with the adopted Long-Term Plan.

Judge Hoeveler, who long presided over the Everglades litigation and the

Settlement Consent Decree, expressed his frustration, in an order dated May 9, 2003, at

the process leading to the Amended EFA. He noted, in “dismay” that “[t]he bill was moved

quickly through the legislative process, reportedly at the behest of more than forty lobbyists

for the sugar industry.” Order, May 9, 2003, at 2 [Case No. 88-1886, DE 1733] (Hoeveler,

J.). Judge Hoeveler remarked that “[t]here is simply no explanation for the speed by which

this was accomplished, given the fact that the deadlines remain three and a half years off.”

Id. He commented, with great foresight, that “the treatment of the bill seemed calculated

to avoid federal participation or public scrutiny.” Id. 

1. What the Amended EFA Accomplished and Its Effect

Under established Eleventh Circuit case law, this Court has the authority to carefully

review the “effect” of the Amendments to the EFA “on the water quality standards of

Florida,” that is, the practical impact, to determine whether the Amendments to the EFA

constitute a change to Florida’s water quality standards. FPIRG, 386 F.3d at 1088 (“We

agree with the plaintiffs that the district court erred by failing to conduct a thorough review

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24

In FPIRG, plaintiffs sued EPA under the citizen suit provision of the CWA to enforce

the Act’s requirement that the EPA review new or revised water quality standards for

compliance with the CWA. The Florida DEP had adopted an administrative rule on

impaired waters, and the EPA reviewed this impaired waters rule but did not determine

whether it complied with the CWA. Plaintiffs argued that the rule changed Florida’s water

quality standards because it (1) required more than a single sample to exceed maximum

pollutant concentrations before a water body was considered impaired, as opposed to just

one sample before the rule; and (2) adopted specific nutrient concentrations as the primary

means for assessing nutrient impairment, and added numeric criteria, which did not exist

before the rule. The district court held that the impaired waters rule did not establish new

or revised water quality standards or policies affecting those water quality standards. The

Eleventh Circuit reversed and remanded, requiring the district court to determine how

Florida’s water quality standards had previously been applied and whether the impaired

waters rule, as applied, changed those standards. FPIRG, 386 F.3d 1070.

25

The EPA sent DEP a letter on November 5, 2003, which included EPA’s conclusions

that it had no duty under the CWA to approve or disapprove the amendments to the EFA

because they were not “at this time, new or revised water quality standards.” EPA Nov. 5,

2003 Determination, at 1[PR-AR-11]. With this November 5, 2003, letter, EPA attached

its decision document in which EPA examined subsections 2, 3(b), 3(c), 3(d), 3(e), 4(e)(2),

4(e)(3), 4(f) and 10 of the Amended EFA. The EPA concluded that the amendments to the

EFA did not change the requirement in the 1994 EFA that permittees had to meet

standards by December 31, 2006, and EPA also concluded that the amendments did not

“at this time” establish a compliance schedule through 2016 for complying with the

phosphorus criterion. Id. at 9. 

38

of the effect of the Impaired Waters Rule on the water quality standards of Florida”).24

 The Eleventh Circuit made clear, in FPIRG, that the district court should determine

whether the practical impact of the legislation is to revise applicable water quality

standards. Id. In order to do so, “the district court was required to look beyond the Florida

Department of Environmental Protection’s (DEP) characterization of the Impaired Waters

Rule as a methodology or ‘screening measure’ that did not change the standards.” Id. at

1088. 

I apply this methodology with regard to the EPA’s finding concerning the 2003

Amendments to the EFA in its November 5, 2003, Determination [PR-AR-11]. The EPA 25

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39

first concluded that the Amendments did not “at this time” change the water quality

standards of Florida, including the criteria and anti-degradation policy. Second, the EPA

determined that the Amendments do not establish a new compliance schedule, or modify

an existing one, for obtaining compliance with State water quality criteria. Third, the EPA

found that the Amendments do not change the uses of the Everglades waters, even though

they allow continuing discharges of pollutants from point sources into the Everglades.

To understand why EPA’s conclusions are arbitrary, capricious and not in

accordance with law, it is first necessary to understand what the plain words of the statute

say. To do so, I must apply accepted principles of statutory construction in a manner

consistent with Florida law. EPA has not undertaken such an analysis. In any event, I am

not obligated to give EPA Chevron deference when it, as a federal agency, is interpreting

a Florida statute, as compared to the CWA or its own regulations. Furthermore, we are not

dealing with a state statute, or a state implementing regulation, which has the force and

effect of federal law and which can be enforced by the EPA in federal court. See

discussion at p. 12-15 above. Cf. Sierra Club v. Adm’r, 496 F.3d 1182, 1186 (11th Cir.

2007) (concluding that the fact that the Georgia Rule is a state regulation is not an obstacle

to according Chevron deference in this case because the Georgia Rule is part of a state

implementation plan made pursuant to the Clean Air Act which has the force and effect of

federal law and may be enforced by the EPA in federal court). However, before

commenting on Florida’s statutory construction principles, I first address DEP’s argument

that Plaintiffs’ challenges to the Amended EFA are moot in light of the adoption of the

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40

Phosphorus Rule and the EPA’s Determination that certain provisions are changes in water

quality standards.

2. The Amendments to the EFA Constitute a Change in State Water

Quality Standards, are not Dependant Upon Adoption of a Rule by the

Environmental Regulation Commission, and Constitute a New or

Revised Compliance Schedule

 In its briefs, DEP argues that EPA’s subsequent determination that the Phosphorus

Rule’s changes to Florida’s water quality standards are consistent with the CWA renders

moot the question of whether EPA followed its statutory duty in reviewing the EFA

Amendments authorizing the promulgation of that Rule. See DEP brief, DE 234, p. 28.

I disagree.

The doctrine of mootness derives directly from Article III of the Constitution, under

which the exercise of judicial power depends upon the existence of a case or controversy.

SEC v. Med. Comm. for Human Rights, 404 U.S. 403, 407 (1972). When a case no longer

presents a controversy with respect to which the court can give meaningful relief, the case

must be dismissed. Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (citations

and internal quotations omitted). 

The EFA, as amended, has never been invalidated. In light of the EPA’s

acceptance of the Amended EFA as making no changes to Florida’s water quality

standards, the Amended EFA continues to serve as a statutory basis for further regulatory

changes to our water quality standards – e.g., if the current Phosphorus Rule were to be

rescinded by DEP. Thus, this Court must determine whether EPA performed its legal duty

to review the EFA Amendments as a potential change in water quality standards and for

consistency with the CWA. The Rule itself is authorized by and depends on the

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26

EPA has a duty, under § 303(c)(3) of the CWA (33 U.S.C. § 1313(c)(3)), to review

any of Florida’s actions which change water quality standards and, as is clear from the

EPA’s own statements in its November 2003 determination, the EPA itself was unsure

whether the Amendments had effected such changes. “[S]hould subsequent events or

new information indicate that these amendments may effect changes in Florida’s water

quality standards, [EPA] will reconsider their status at that time.” EPA Nov. 5, 2003

Determination, cover letter (emphasis added) [PR-AR-11]. EPA essentially deferred

evaluation of parts of the EFA Amendments because it had “no basis for acting on these

provisions at this time,” id., at 8, but noted that “if future actions alter our understanding of

the EFA,” id., at 12 (emphasis added), review would occur at that time – a deferral which

is contrary to EPA’s statutory obligations. The Eleventh Circuit has noted that “there is no

guarantee that the EPA will conduct thorough reviews of future [state regulatory actions].”

FPIRG, 386 F. 3d at 1088 (EPA’s subsequent review of a partial listing of Florida’s polluted

waters, generated by reference to an earlier rule promulgated by the state, did not moot

the question of whether EPA’s review of the rule itself was conducted in compliance with

the CWA as to whether the rule changed Florida’s water quality standards).

41

Amendments, and therefore any analysis of the Rule is inextricably intertwined with an

analysis of the Amendments. I have both the authority and the duty to assure that any

future Florida regulations affecting water quality standards are based on statutory authority

which has been reviewed comprehensively by the agency entrusted by Congress to

enforce the CWA.26

Clearly, Plaintiffs’ claims relating to EPA’s review of the EFA Amendments are not

moot – I am able to provide “meaningful relief” (e.g., by requiring EPA to follow its duties

according to the CWA) and I specifically reject DEP’s suggestion that no controversy

remains (DE 251, p. 13, fn 12). 

3. Statutory Construction and Interpretation of the Amended EFA

I now turn back to statutory construction and interpretation of the Amended EFA.

“It is axiomatic that all parts of a statute must be read together in order to achieve a

consistent whole; courts should avoid readings that would render part of a statute

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42

meaningless.” Sierra Club v. St. Johns River Mgmt., 816 So. 2d 687, 693 (Fla.5thDCA

2002) (citing Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455-

456 (Fla. 1992)). Likewise, “Courts must avoid any construction of a statute that would

produce an unreasonable, absurd, or ridiculous consequence.” St. Johns, 816 So. 2d at

693. “‘[A]ll parts of a statute must be read together in order to achieve a consistent whole,’

and ‘[w]here possible, courts must give effect to all statutory provisions and construe

related statutory provisions in harmony with one another.’” Borgner v. Brooks, 284 F.3d

1204, 1208 (11th Cir. 2002) (emphasis in original) (quoting Young v. Progressive Se. Ins.

Co., 753 So. 2d 80, 84 (Fla. 2000)). Statutes should be construed to give each word effect

and courts should avoid readings that would render part of statutes meaningless. Warner

v. City of Boca Raton, 64 F.Supp.2d 1272, 1283 (S.D.Fla. 1999).

Moreover, when the legislature amends a statute, it is presumed that the legislature

intends to change the law. Smith v. Fla. Dep’t of Corr., 961 So. 2d 1050, 1052 (Fla. 1st

DCA 2007); State v. Hart, 372 So. 2d 174, 176 (Fla.2d DCA 1979); Carlilie v. Game &

Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1978). When the legislature amends

a statute by omitting words, it is presumed that they intended for the statute to have a

different meaning from the meaning it had before the amendment. Aetna Cas. & Surety

Co. v. Buck, 594 So. 2d 280, 283 (Fla. 1992). In the case of conflicting provisions, the

latter expression will prevail over the former unless a well-recognized exception applies,

Sharer v. Hotel Corp. of Am., 144 So. 2d 813 (Fla. 1962), and, where an amendatory

section of a statute takes the place of an original section, it operates together with the

unchanged portions of the statute according to the nature of the changed language.

Beckwith v. Bd. of Pub. Instruction of Dade County, 261 So. 2d 504, 507 (Fla. 1972). 

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27

The Amendments provide that revisions to the Long-Term Plan shall be

incorporated through an “adaptive management approach” including a process

development and engineering component to identify and implement incremental

“optimization” measures for further phosphorus reduction. Fla. Stat. § 373.4592(3)(b)

(2003). The Legislature defines “optimization” to mean “maximizing the potential treatment

effectiveness of the STAs through measures such as additional compartmentalization,

improved flow control, vegetation management, or operational refinements, in combination

with improvements where practicable in urban and agricultural BMPs, and includes

integration with Congressional authorized components of the Comprehensive Everglades

Restoration Plan or “CERP.” Fla. Stat. § 373.4592(2)(l)(2003).

43

Applying these well-recognized principles of statutory construction, I conclude that

the EPA has misread the essential provisions of the EFA and its Amendments. I also find

that the EPA’s conclusions are “not in accordance with law” because the CWA does not

allow State water quality standards to be replaced with “across-the-board” technologybased effluent limitations, regardless of results, with an open-ended compliance schedule.

4. The Amended EFA’s Long-Term Plan Provisions

It all starts with the Amended EFA’s adoption of the “Long-Term Plan.” By definition,

the “Long-Term Plan” or “Plan” is the District’s “Everglades Protection Area Tributary

Basins Conceptual Plan for Achieving Long-Term Water Quality Goals Final Report”, dated

March 2003, as modified by the Amended EFA. Fla. Stat. § 373.4592(2)(j) (2003). Even

though the Florida Legislature adopted the “March 2003" version, the Amended EFA

authorizes the Long-Term Plan to be revised by the South Florida Water Management

District (“District”), itself, the primary discharger into the Everglades Protection Area. The

revisions only need be approved by the DEP. Fla. Stat. § 373.4592(3)(b) (2003)

(“Revisions to the Long-Term Plan shall be approved by the department [DEP].”)27

In turn, Section 3 of the Amendments declares that the Long-Term Plan is the “best

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28

The complete Long-Term Plan allows discharges into the Everglades Protection

Area from all basins of any total phosphorus concentration until 2016. It contains no cap

on discharges and anticipates discharges above 10 ppb until at least 2056. PR-AR-29.28

ES-3. It does not define a required inflow concentration anywhere. It is also a “moving

target” and already has been amended at least twice since its adoption by the Florida

Legislature. See PR-AR-29.28 (Oct. 2003 Long-Term Plan); PR-AR-73, p.7 (referencing

a Nov. 16, 2004 Long-Term Plan). Notably absent from the Long-Term Plan is any

discussion of what happens in 2016 if the evolving “estimated performance” of the LongTerm Plan is not met because of insufficient funding or other considerations.

29

Subsection 4(e)2 of the Amended EFA addresses both the default provision for the

phosphorus criterion and the rulemaking requirements that would supersede the default

provision. See Fla. Stat. § 373.4592(4)(e)2 (2003).

44

available phosphorus reduction technology,” referred to in the Amendments as “BAPRT.”

The Amendments define BAPRT to mean “a combination of BMPs and STAs which include

a continuing research and monitoring program to reduce outflow of phosphorus so as to

achieve the phosphorus criterion in the Everglades Protection Area.” Fla. Stat.

§373.4592(2)(a) (2003). Section 3 equates the Long-Term Plan to BAPRT. It states that 28

“[t]he Legislature finds that the most reliable means of optimizing the performance of STAs

and achieving reasonable further progress in reducing phosphorus entering the Everglades

Protection Area is to utilize a long-term planning process.” Fla. Stat. § 373.4592(3)(b)

(2003). It then declares that “the Long-Term Plan provides the best available phosphorus

reduction technology [BAPRT] based upon a combination of the BMPs and STAs

described in the Plan provided that the Plan shall seek to achieve the phosphorus criterion

in the Everglades Protection Area.” The Long-Term Plan is to be “implemented” with “the

planning goal and objective of achieving the phosphorus criterion to be adopted pursuant

to subparagraph 4(e)2.” Id. (emphasis added). 29

Under the clear wording of the Amendments, the requirement is no longer to

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30

After the first ten year phase, the Florida Legislature contemplates an additional ten

year “second phase.” The Act provides “The Legislature intends that a review of this act

at least 10 years after implementation of the initial phase is appropriate and necessary to

the public interest.” It further states that “[t]he review is the best way to ensure that the

Everglades Protection Area is achieving state water quality standards, including

phosphorus reduction, and the Long-Term Plan is using the best technology available.”

Fla. Stat. § 373.4592((3)(e) (2003). 

 

31

Other sections of the Amended EFA, when read together with Section 3, make

clear that the December 31, 2006, compliance date was abandoned and replaced with the

Long-Term Plan, which will not be fully implemented until 2016, or beyond. For example,

compare subsection 10(a) of the 1994 EFA (“by December 31, 2006 . . . take such action

45

“achieve” the phosphorus criterion, that is, to meet it, but to “seek to achieve the

phosphorus criterion,” as a planning goal and objective, and, thereby, not actually meet it.

Of importance, the Florida Legislature refers to the Long-term Plan itself as “the best

available phosphorus reduction technology.” Fla. Stat. § 373.4592(3)(b) (2003). If this was

not clear enough, the Legislature then restates what is already included in the Long-Term

Plan. The Legislature officially recognizes that “[t]he Long-Term Plan contains an initial

phase and a 10-year second phase.” Fla. Stat. § 373.4592(3)(d) (2003). It requires that

“[T]he Long-Term Plan shall be implemented for an initial 13-year phase (2003-2016) and

shall achieve water quality standards relating to the phosphorus criterion in the Everglades

Protection Area as determined by a network of monitoring stations established for this

purpose.”

30

The Amended EFA, then, is a mandate that the State of Florida “implement” the

Long-Term Plan, which itself constitutes moderating provisions and a compliance schedule

that removes the December 31, 2006 deadline and substitutes “an initial phase” through

2016. The heart of the matter is that the new compliance schedule is legislatively 31

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as may be necessary so that water delivered . . . achieves . . . the phosphorus criterion,”)

with the 2003 Amended EFA subsection 10 language ( “By December 31, 2006 . . . take

such action as may be necessary to implement the pre-2006 projects and strategies of

the Long-Term Plan so that water delivered . . . achieves . . . phosphorus criterion and

moderating provisions.”). See also subsection (3)(b)(10)(“ the Long-Term Plan . . . shall

seek to achieve the phosphorus criterion in the Everglades Protection Area . . . with the

planning goal and objective of achieving the phosphorus criterion”). The emphasis is

not achieving, but on “seeking” to achieve, which is only an aspiration. 

32

As later discussed, the Phosphorus Rule, based on the Amended EFA, makes it

clear that discharge limits are to be based upon “TBELS” established through BARPT and

“shall not require water quality based effluent limitations through 2016.” F.A.C. § 62-

302.540(5)(d) (“Phosphorus Rule”).

33

Chief Judge Davis noted in his opinion that while the CWA only allows the EPA to

46

incorporated into water quality standards for dischargers who meet the statutory

requirements, as opposed to authorizing compliance schedules in individual permits on a

case-by-case basis. The “effect” of the Amended EFA, therefore, is to replace the narrative

and numeric phosphorus criterion with an escape clause that allows non-compliance, by 32

virtue of both an extended compliance date, and, during the extension, a lesser state

water quality standard of compliance, namely, compliance with the Long-Term Plan and

“TBELs”. The lesser quality standard is then mandated for future permits for discharges

into the Everglades Protection Area.

To further explain, discharges under Florida law, including under the 1994 EFA and

the Amended EFA, are governed by permits. Both Sections 4 and 10 of the Amended EFA

reference permits for discharges into and within the Everglades Protection Area. Section

4(e)(3) permits are issued by the Department or the District for discharges into the EAA

canals and into the Everglades Protection Area, and Section 10 Long-Term Compliance

permits are issued by the Department to the District for point source discharges. The 33

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directly enforce standards against point sources, the CWA still applies to nonpoint sources.

The EPA’s own Water Quality Standards Handbook states that nonpoint sources may not

cause a violation of state water quality standards. Miccosukee Tribe, 1998 WL 1805539,

at *18 (Davis, J.). I further concur with Judge Davis’ observation that “[t]he CWA [Clean

Water Act] would be nothing more than a paper tiger if it didn’t apply to nonpoint sources.

It would make no sense to have an act that highly regulated the sources of some

pollutants, but gave others carte blanche to pollute at will. The congressionally stated

goals of the CWA show it applies to all sources of pollutants. 33 U.S.C. §1251(a) (CWA

goal is to ‘restore and maintain the chemical, physical and biological integrity of the

Nation’s waters.’” Id. Judge Davis stated, and I agree as it relates to this case, “the record

does not support the EPA’s conclusion that the EFA is consistent with the CWA. By

allowing nonpoint sources to violate state water quality standards until 2006, the EFA

violates both the letter and spirit of the Clean Water Act.” Id. 

34

Section 373.4592(4)(e)(3) provides that “[d]uring the implementation of the initial

phase of the Long-Term Plan, permits issued by the department shall be based on BAPRT

and shall include technology-based effluent limitations consistent with the Long-Term

Plan.” (emphasis added). Similarly, section 373.4592(1)(a) provides “[d]uring the

implementation of the initial phase of the Long-Term Plan, permits issued by the

department shall be based on BAPRT, and shall include technology-based effluent

limitations consistent with the Long-Term Plan, as provided in subparagraph 4(e)(3).”

(emphasis added).

35

The Administrative Code provision defines “TBELs” as “minimum waste treatment

requirement, established by the Department, based on treatment technology.” F.A.C. § 62-

47

Amended EFA unequivocally provides in both Sections 4 and 10 that during the

implementation of the initial phase of the Long-Term Plan [i.e., through 2016], permits

issued by the department (DEP) shall be based on BAPRT, and shall include technologybased effluent limitations consistent with the Long-Term Plan. See Fla. Stat. §§

373.4592(4)(e)(3) and 10(a) (2003). This provision is not discretionary, but mandatory, 34

by virtue of the word “shall” in context with the remaining EFA Amendments. 

“Technology-based effluent limitations” or “TBELs” are defined by the Amended

EFA to mean “the technology-based treatment requirements as defined in Rule 62-

650.200, Florida Administrative Code.” By definition, TBELS are less restrictive than the 35

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650.200 (13). 

36

“Water quality based effluent limitation” (“WQBEL”) means an effluent limitation,

which may be more stringent than a technology-based effluent limitation, that has been

determined necessary by the Department to ensure that water quality standards in a

receiving body of water will not be violated.” F.A.C. § 62-650.200.

48

narrative and numeric phosphorus criterion which are defined to be “Water Quality Based

Effluent Limitations (“WQBELs”). Thus, during the period through 2016, permits may 36

issue even if neither the narrative nor the numeric phosphorus criterion is met so long as

there is compliance with the Long-Term Plan and implementation of TBELs. The change

in compliance schedule, coupled with the changes in criteria, are changes in state water

quality standards. The target for protecting the Everglades is no longer the phosphorus

criterion, but a future plan that candidly concedes that discharges will be above the default

provision of 10 ppb. Fla. Stat. § 373.4592(3)(b) (2003); Ex. H, Long-Term Plan at ES-3

[PR-AR-29.28].

5. Moderating Provisions: a Fourth Component of Water Quality Criteria

The controlling water quality standard for the State of Florida after the EFA

Amendments were enacted mandated that DEP include moderating provisions in all

permits issued by DEP. Fla. Stat. § 373.4592(4)(e), (10)(2003). The Legislature also

authorized DEP to include moderating provisions in the Phosphorus Rule, but it is clear

from the language of the statute that the moderating provisions were, essentially, the LongTerm Plan. Fla. Stat. § 373.4592(4)(e)3 (2003). The EFA Amendments are clear on their

face that they replace the 1994 EFA’s requirement that water discharges to the Everglades

Protection Area must meet the phosphorus narrative criterion of no imbalance of aquatic

flora and fauna by December 31, 2006, by implementing the Long-Term Plan. The same

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37

Under Florida law, a water quality standard is composed of four separate

components that include classified uses, water quality criteria, an anti-degradation policy,

and moderating provisions. F.A.C. § 62-302.200(30). 

Beginning in 1979, Florida’s administrative rules also added an antidegradation

policy which provides, in part, that “[p]ollution which causes or contributes to new violations

of water quality standards or to continuation of existing violations is harmful to the waters

of this State and shall not be allowed. Waters having water quality below the criteria

established for them shall be protected and enhanced.” F.A.C. § 62-302.300 (15). This

antidegradation policy applies to both OFWs and non-OFW waters. See id. The

antidegradation policy specifically addresses nutrients and states that “excessive nutrients

(total nitrogen and total phosphorus) constitute one of the most severe water quality

problems facing the State.” Id. at (13). The Rule further provides that it shall be the

Department’s policy to limit the introduction of man-induced nutrients into the State’s

waters, with particular consideration given to waters which contain low nutrient

concentrations. Id.

49

applies to the default criterion.

Prior to the 2003 Amended EFA, moderating provisions were defined under the

Florida Administrative Code to be a component of “water quality standards. ” The Florida 37

Administrative Code specifically defined “water quality” to include “... the moderating

provisions contained in this Rule and in F.A.C. Rule 62-4, adopted pursuant to Chapter

403, F.S,” in addition to designated present and future beneficial uses (classification of

waters), the numeric and narrative criteria applied to the specific water uses or

classification and the Florida anti-degradation policy. F.A.C. §§ 62-302.200 (29) and (3)).

Before the 2003 Amendments to the EFA were enacted, the State’s “moderating

provisions” were limited under Florida law to “mixing zone, zone of discharge, site specific

alternative criteria, exemption, and equitable allocation provisions.” See F.A.C. §§ 62-

302.300(10)(b)(2), (10)(d). These “administrative” moderating provisions were not

“statutory” and did not trump the narrative and default criteria by providing mandated

requirements that were to be included in all permits for discharges into the Everglades

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38

The term “moderating provisions” appears nowhere in the Clean Water Act and its

implementing regulations. The CWA contains only three water quality standards: (1) the

designated use; (2) the criteria, either in narrative or numeric form, and (3) an antidegradation policy. See 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(b), (f), (I); 131.10;

131.11; 131.12. Because the moderating provisions changed the water quality standards,

they should have been reviewed by EPA under Section 303 ( c) of the CWA. But, the EPA,

having concluded that the EFA Amendments were dependent upon the adoption of the

Phosphorus Rule, made no analysis of the impact of the EFA Amendments on each

element of water quality standards. The only analysis done by the EPA (concerning

whether the EFA Amendments changed the anti-degradation policy) was contained

summarily in a footnote in the EFA Determination. “The 2003 amendments to the EFA do

not revise Florida’s anti-degradation requirements.” EPA Nov. 5, 2003 Determination, at

n.12 [PR-AR-11]. This is patently arbitrary and capricious. 

50

Protection Area. The EFA Amendments, however, have changed the status of moderating

provisions.

The new, Amended EFA statutory “moderating provisions” go significantly beyond

what is in the Florida Administrative Code. The distinction is critical because the State of

Florida uses the term “standards” to imply that the CWA’s three water quality standards

elements of (1) criterion, (2) designated uses and (3) anti-degradation requirements are

being met, when, under the Amended EFA, moderating provisions trump those three

elements. Thus, the Legislature created and authorized a fourth component to the water

quality standards, “moderating provisions,” which is contrary to the CWA. 

38

6. The EPA’s Position on Moderating Provisions

Subsection (4)(e)(2) of the Amended EFA sets forth moderating provision for

impacted and unimpacted areas within the Everglades Protection Area. Moderating

provisions are designed to “moderate” or temper the impact of the phosphorus criterion on

the regulation of discharges into the Everglades Protection Area and, as discussed above,

are specifically allowed as the result of legislative amendment enacted in 2003.

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51

Subsection (4)(e)(2) provides, in part: 

The department’s rule adopting a phosphorus criterion may include

moderating provisions during the implementation of the initial phase of the

Long-Term Plan authorizing discharges based upon BAPRT providing net

improvement to impacted areas. Discharges to unimpacted areas may also

be authorized by moderating provisions, which shall require BAPRT, and

which must be based upon a determination by the department that the

environmental benefits of the discharge clearly outweigh potential adverse

impacts and otherwise comply with antidegradation requirements.

Moderating provisions authorized by this section shall not extend beyond

December 2016 unless further authorized by the Legislature pursuant to

paragraph (3)(d).

Fla. Stat. § 373.4592(4)(e)(2) (2003).

The EPA states in its 2003 Determination that subsection (4)(e)(2) was modified to

“authorize,” but not require the inclusion of moderating provisions as part of the future rulemaking to establish a phosphorus criterion. It found the same thing to be true in subsection

10. It states that the Amendments to the EFA do not define “the type of moderating

provision to be developed, the extent of change allowed through the moderating provisions,

or whether the moderating provision applies to outflow from phosphorus sources or to the

ambient water quality criteria supporting the designated uses of the EPA.” EPA Nov. 5,

2003 Determination at 8 [PR-AR-11]. Thus, the essence of EPA’s Determination, and the

arguments included in its various briefs, is that references to “moderating provisions” only

create the “possibility” of future enactment of these “moderating provisions” and “do not

themselves change the designated uses or water quality criterion criteria of the [Everglades

Protection Area] at this time.” Id. at 8. As the EPA puts it, “by using the word ‘may’ the

statute simply authorizes DEP to create such provisions if the Department, in the exercise

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39

The Tribe and Friends argue with merit that the Amended EFA was “craftily drafted”

to attempt to evade EPA review. DE 247, at 5. They further assert “EPA either does not

see the State’s true intent or chooses to turn a blind eye to the truth and its duties under

the Clean Water Act. EPA’s review, which consisted of reading the words of specific

sections of the Amendments, rather than connecting them to analyze its true effect, was

arbitrary and capricious.” Id.

52

of its discretion, determines they are appropriate.” DE 231, at 15.39

The EPA’s limited discussion of the 2003 EFA Amendments essentially substitutes

future rule-making and future permitting to avoid reviewing the present legislative

authorizations as de facto changes in water quality standards required to be reviewed

under the CWA. The changes to the “Long-Term Plan” under the Amended EFA are

dismissed by EPA as imposing no compliance schedule “at this time.” EPA Nov. 5, 2003

Determination, at 9 [PR-AR-11]. The EPA likewise dismisses the Amended EFA’s

legislative findings as being inconsequential without future rule-making in place:

While these [findings] clearly contemplate that the Long-Term Plan for

reducing phosphorus entering the [Everglades Protection Area] will extend

beyond 2006 (the initial phase runs until 2016, and there is to be a second

phase after that), in our view, they do not set a new, later compliance date

without further rule-making.

EPA Nov. 5, 2003 Determination, at 10 [PR-AR-11].

While the 1999 EPA Determination ratified a definite December 31, 2006, deadline

for compliance with the CWA, the EPA concludes in its 2003 Determination that the

previously imposed compliance deadline can be evaded simply by not referring to or

changing the compliance schedule itself. The EPA says there is no change to the

compliance schedule because “[t]he amended language does not specifically refer to the

2006 deadline . . . .” EPA Nov. 5, 2003 Determination, at 11 [PR-AR-11]. 

The EPA’s conclusion is arbitrarily and wrongly premised upon the incorrect

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53

assumption that even though the Amendments tell DEP what the moderating provisions

are (the Long-Term Plan), how long they should be in place (at least through 2016), and

that the Long-Term Plan is BAPRT for purposes of permitting, they are “not binding” on the

State because the State’s proposed rule on the phosphorus numeric criterion had not been

promulgated at the time the Amendments to the EFA had passed. When viewed as a

whole, the Amended EFA mandates the moderating provisions in the Phosphorus Rule.

The EPA avoids scrutinizing the statute as a whole and instead focuses on a cramped

analysis of the word “may.” Given the context, the use of the word “may” instead of “shall”

is gamesmanship and seemingly an effort by the State to avoid EPA scrutiny. The EPA

ignores that the key components of the moderating provisions had to be explicitly included

in the Amended EFA in order for the Phosphorus Rule to survive an administrative

challenge as an unlawful delegation of legislative authority. When read as a whole, the

EFA Amendments create a mandatory duty that changes water quality standards.

7. “May” means “Shall”

 While the statutory mandate operates independently of subsection (4)(e) to change

Florida’s water quality standards, subsection 4(e), nonetheless, must be considered in pari

materia to all of the Amended EFA statutory changes. The EPA’s Determination does not

consider, given the totality of the Amended EFA statutory requirements and framework,

whether the word “may” actually means “shall” for statutory purposes in the context of

subsection 4(e). By taking the word “may” in Section 4 and examining it in isolation from

all other revisions to the EFA, the EPA has acted arbitrarily and capriciously, and in a

manner inconsistent with applicable law.

Based on my review, the EFA Amendments establish on their face, in accordance

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54

with their plain terms, that the Florida Legislature actually mandated that the Long-Term

Plan, the moderating provision chosen by the Legislature, be implemented without delay

and directed that it be included in all permits issued by the DEP. Fla. Stat. §§

373.4592(3)(b), 3(c), 3(d), 3(e), 4(e), and 10 (2003). The Florida Legislature also

mandated that all permits would be issued based on the provisions of the Long-Term Plan,

which includes the compliance schedule contained therein (and now adopted by statute)

and the projected discharges of phosphorus which exceed the default numeric criteria. The

moderating provisions are immediately applicable through the adopted Long-Term Plan as

BAPRT, along with its TBELS and the requirement to incorporate them into all permits

issued. 

EPA improperly gives little effect to the mandatory, non-discretionary components

of subsection (4)(e)(2), which require that, during the implementation phase of the initial

phase of the Long-Term Plan, discharges under the proposed rule must be “based upon

BAPRT” (the Long-Term Plan) providing net improvement to impacted areas; that

discharges to unimpacted areas may also be authorized by moderating provisions, “which

shall require BAPRT;” that, under subsection 4(e)(3), and that “[d]uring the

implementation of the initial phase of the Long-Term Plan, permits issued by the

department shall be based on BAPRT, and shall include technology based effluent

limitations consistent with the Long-Term Plan.” These mandatory components, in light of

other EFA Amendments, spell out that the Amended EFA mandates moderating provisions

and now elevates them to statutory status as a component of Florida’s water quality

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40

While one subsection of the statute states that DEP “may” implement moderating

provisions in the phosphorus rule in 4(e), other sections of the Amended EFA dictate that

the Long-Term Plan shall be implemented “without delay,” and declare that “all permits”

issued must incorporate BAPRT, which is the Long-Term Plan itself. See Fla. Stat. §§

373.4592(2)(j), (3)(b), (3)(d), (3)(e), (4)(e), (10) and (10)(a).

55

standards.40

Subsection 10 then repeats the key language in the permitting section (as discussed

above), and then requires the District, by December 31, 2006, to take such action to

implement the pre-2006 projects and strategies of the Long-Term Plan so that water

delivered to the Everglades Protection Area achieves the phosphorus criterion and

moderating provisions. Nothing qualifies this requirement with language such as, e.g.,

“if moderating provisions are adopted by rule.” Not only that, but the 2003 Amended EFA

requires, by December 31, 2003, the District “shall,” under subsection 10(a), submit an

application for permit modification to achieve state water quality standards, including the

phosphorus criterion and moderating provisions. Why would the Florida Legislature

require the District to submit an application to include “moderating provisions” prior to the

adoption of the Phosphorus Rule if they were not already mandatory under the EFA

Amendments?

The only logical conclusion, consistent with the plain wording of the statute, is that

such application for permit modification must include moderating provisions as specified

in the Amended EFA and the Long-Term Plan, regardless of whether a rule is adopted by

that time. The other obvious inference from the structure of the statute is that it mandates

that moderating provisions be put in the Phosphorus Rule. Neither of these sections

discuss applying moderating provisions on a case-by-case basis, as EPA contends, nor

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56

do they give any discretion to DEP to base permits on anything other than BAPRT, which

are technology-based effluent limitations consistent with the Long-Term Plan. When read

as a whole, the EFA Amendments change water quality standards by negating the

criterion, mandating that discharges be allowed that are incompatible with the antidegradation policy, and by changing the designated use of the water body until at least

2016. These changes are not discretionary. 

While the word “may” in a statute creates a presumption of some degree of

discretion, this presumption can be defeated by indications of legislative intent to the

contrary or by obvious inferences from the structure and purposes of the statute. Cortez

Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 198-199 (2000)(The word “may”

in a statute “usually implies some degree of discretion, but this common-sense principle

of statutory construction . . . can be defeated by indications of legislative intent to the

contrary or by obvious inferences from the structure and purpose of the statute”); Usmani

v. U.S. Attorney Gen., 483 F.3d 1147, 1150-1151 (11th Cir. 2007) (The word “may” in a

statute creates a presumption of some degree of discretion, but “this presumption can be

defeated by indications of legislative intent to the contrary or obvious inferences from the

structure and purpose of the statute”)(quoting DirectTV, Inc. v. Brown, 371. F.3d 814, 817

(11th Cir. 2004)); see also Myles v. State, 602 So. 2d 1278, 1281 (Fla. 1992) (“We realize,

as the court below noted, that the statute in question uses the word ‘may’ in talking about

electronic communications. However, it is settled that the word ‘may’ is not always

permissive, but may be a word of mandate in an appropriate context.”); Comcoa, Inc. v.

Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (“Specifically, an imperative obligation is

sometimes regarded as imposed by a statutory provision notwithstanding that it is couched

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41

At oral argument, the DEP and EPA did not even know if the Farmers had met the

December 31, 2006, deadline or if that date was being enforced by DEP. See, e.g., May

21, 2008 Hearing Tr. at 50-52.

57

in permissive, directory, or enabling language.”) Such is the case here. 

8. Subsection 4(f) and the Farmers

The EPA (and Intervenors) also misread Section 4(f). Much attention was

previously given to Section 4(f) of the 1994 EFA in Chief Judge Davis’ Opinion, and in the

1999 EPA Determination, because of the potential for harm to the Everglades from

discharges from the Everglades Agricultural Area. Now, the EPA relies on the language

of 4(f) to conclude that because this section was “not changed” by the 2003 EFA

Amendments, there has been no change in the December 31, 2006, compliance schedule.

EPA also makes the same argument in relation to subsection 10(a) where it contends that

this section still requires water quality standards to be met by December 31, 2006. The

EPA is wrong in its interpretation of the law on both accounts.

Subsection 4(f)(4) had required that, by December 31, 2006, all permittees’

discharges were prohibited from causing or contributing to any violation of water quality

standards in the Everglades Protection Area. The key language is “cause or contribute to

a violation of water quality standards.” EPA ignores that the Amended EFA now defines

water quality standards to include the Long-Term Plan [BAPRT], which is a compliance

schedule that allows all permittees to substitute the Long-Term Plan for actually meeting

the phosphorus criterion in all water delivered to the Everglades Protection Area by

December 31, 2006. This statutory scheme exists “independent” of rulemaking and is 41

self-implementing by virtue of Sections (3)(b)-(e), 4(e)(3), and (10)(a). Thus, a permittee’s

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42

The view that a section of the Amended EFA that “governs permits” cannot change

water quality standards is incorrect. Section 4(f) of the 1994 EFA, which governed

permitees in the Everglades Agricultural Area, was previously found by the EPA to be a

change in water quality standards after EPA was required by the Court to review it,

because it changed the compliance schedule for meeting the phosphorus criterion until

December 31, 2006. EPA Sept. 1999 Determination [EFA-AR-8]. The EPA argues that

the 2003 EFA Amendments include no such comparable and unequivocal suspension

language. The “shall not be required to implement water quality standards” of subsection

4(f)(3) has the same effect as permitting BAPRT through 2016. In both cases, there is no

requirement to meet the phosphorus criterion. Both provisions suspend the narrative and

default numeric phosphorus criterion, even though the wording is different. What is crucial

is the “effect.” 

43

Based on my ruling that EPA’s 2003 Determination that the Amended EFA does not

change Florida’s water quality standards is arbitrary and capricious, I need not reach the

58

discharge cannot cause or contribute to a violation of “water quality standards in the

Everglades Protection Area,” Fla. Stat. § 373.4592(4)(f)(4), since the Long-Term Plan,

along with its TBELs and compliance schedule, establishes a new water quality standard

that supersedes the narrative and numeric phosphorus criterion, or at best, makes

compliance optional. Given this analysis, the administrative record does not support the

EPA’s finding that the Amended EFA §§ 373.4592(4)(f) (3) and (4) requires EAA farmers

to meet state water quality standards by 2006 rather than 2016.42

 For all of these reasons, the Amended EFA changes Florida’s water quality

standards by authorizing continuing violations of the narrative and numeric criterion for

phosphorus and other nutrients. By allowing continued harmful discharges of nutrients into

the Everglades, the Amended EFA also violates the state’s anti-degradation policy. The

result of the EPA’s position is to vacate its prior 1999 Determination and to ensure that the

de facto suspension of enforcement and compliance with state water quality standards will

continue for an indeterminate period, a result that cannot be permitted under the CWA.43

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Plaintiffs’ argument that the EPA is barred by administrative res judicata from changing the

compliance schedule. I concur with the merit of Plaintiffs’ argument, however, independent

of any res judicata effect, that the EPA cannot evade its prior findings on the previously

imposed compliance deadline by simply resorting to mechanisms such as future rulemaking and permitting. Unlike its analysis in the 1999 Determination, the EPA does not

consider, in its 2003 Determination, whether the new Amended EFA deadline can be met,

or whether reliable scientific evidence demonstrates that the Everglades could withstand

ten more years of discharges that are not protective. 

59

The EPA’s finding that the Amended EFA does not change Florida’s water quality

standards is arbitrary, capricious, and not supported by the administrative record.

Pursuant to 5 U.S.C. § 706(s), the Court will set aside the EPA’s Determination. 

G. The State of Florida’s Phosphorus Rule: F.A.C. § 62-302.540

1. Introduction

The parties’ second set of cross-motions for summary judgment relate to the EPA’s

CWA review of Florida’s Phosphorus Rule (“Rule”), F.A.C. § 62-302.540. The Rule

originally was adopted by the State of Florida Environmental Regulation Commission

(“ERC”) on July 15, 2004. It was later amended on May 25, 2005. As finally adopted, the

Phosphorus Rule establishes water quality standards for phosphorus, including a numeric

phosphorus criterion, within the Everglades Protection Area. F.A.C. § 62-302.540 (1)(a).

The water quality standards adopted include the following elements: “(1) a numeric

interpretation of the Class III narrative nutrient criterion for phosphorus; (2) the

establishment of moderating provisions for permits authorizing discharges into the EPA in

compliance with water quality standards, including the numeric phosphorus criterion; and

(3) a method for determining achievement of the numeric phosphorus criterion, which takes

into account consideration of spatial and temporal variability, natural background conditions

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44

1. DEP’s submission of sections of the Phosphorus Rule to EPA

On January 12, 2005, DEP submitted the Phosphorus Rule to the EPA pursuant to

the CWA. In DEP’s accompanying letter, the DEP’s general counsel represented that DEP

was submitting sections (3), (4), (6) and (7) for review pursuant to the CWA and 40 C.F.R.

131.13. DEP Jan. 12, 2005 Letter, at 1-3 [PR-AR-18]. With respect to subsections (6)(a)

and (6)(b), the letter noted that these subsections provide moderating provisions which

may be issued on a case-by-case basis in association with permits issued under section

(5) of the Phosphorus Rule. Id. at 2. 

The letter explained that DEP was not submitting the following sections for review

under the CWA as a change in water quality standards: section (1), entitled “Purpose and

Scope;” section (2), entitled “Findings;” section (5), entitled “Long-Term Compliance Permit

Requirements for Phosphorus Discharges into the EPA;” and section (8), entitled

“Contingencies.” Id. at 2. Along with the Rule and the general counsel’s letter, DEP

submitted a document entitled “Technical and Regulatory Information in Support of the

State of Florida’s Adopted Phosphorus Criterion Contained in Rule 62-302.540 F.A.C” to

facilitate EPA’s review. 

2. EPA’s January 24, 2005 Determination on the Phosphorus Rule

Following DEP’s January 12, 2005 submission, EPA sent DEP its Determination on

the Phosphorus Rule on January 24, 2005. EPA Jan. 24, 2005 Determination [PR-AR-69].

EPA’s letter noted that the attached Determination reviewed only sections (3), (4), (6) and

(7) because those were the sections submitted for review by DEP.

EPA noted in its letter that, for the purposes of CWA review, “the water quality

criterion as well as these policies and procedures must, together, assure the designated

use of the water body, as a whole, is protected. Id. at 1. In its Determination, the EPA

approved the submitted sections of the Phosphorus Rule, with the exception of

subparagraph (4)(c)(1), because EPA concluded that this subparagraph limited the

applicability of the phosphorus criterion to certain portions of the Refuge. 

3. EPA’s July 27, 2005 Determination

Following EPA’s January 24, 2005 Determination, Florida adopted revisions to the

Phosphorus Rule on May 5, 2005, and DEP submitted these revisions to EPA. See EPA

July 27, 2005 Determination, at 1 [PR-AR-70]. Based on EPA’s review of the revisions, it

determined that the Phosphorus Rule no longer limited the applicability of its criterion to

only the interior portions of the Refuge. Id. at 2. On July 27, 2005, EPA approved the

60

and confidence in laboratory results.” F.A.C. § 62-302.540(1)(b)(1-3). This Order will

address the EPA Determinations on the Phosphorus Rule with regard to each of these

elements.

Before turning to these issues, I mention as further background that the Rule

consists of eight sections. EPA reviewed these sections in four separate Determinations.44

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revisions as being consistent with the CWA and 40 C.F.R. § 131 and withdrew its January

24, 2005, disapproval of subparagraph (4)(c)(1). Id. The EPA wrote that it had completed

its review of the Phosphorus Rule. Id. 

4. DEP’s May 5, 2006 letter to EPA on the Phosphorus Rule

On May 5, 2006, DEP’s general counsel sent a letter to EPA which “reiterate[d]”

their recent conversations regarding subsections (1), (2), and (5) of the Phosphorus Rule.

DEP May 5, 2006 Letter at 1 [PR-AR-72]. In this letter, the general counsel again

represents that subsections (1) and (2), respectively entitled “Purpose and Scope” and

“Findings,” do not contain any regulatory requirements and do not change Florida’s water

quality standards. Id. at 2. In addition, the letter states that subsections (5)(a)-(c) are not

changes to Florida water quality standards because they only restate existing Florida law.

Id. 

With respect to subsection (5)(d), DEP’s letter asserts that this subsection “contains

permitting provisions and requires the permittee to use the best available phosphorus

reduction technology (“BAPRT”) to achieve compliance with the 10 ppb criterion as soon

as practicable.” Id. DEP’s general counsel further represents that “[i]f the permittee is

unable to provide reasonable assurance that a TBELs based on BAPRT is sufficient to

meet the criterion, then the permit must be accompanied by an appropriate mechanism

(such as a moderating provision, variance, compliance schedule, etc.) that does not require

the permittee to immediately meet an effluent limit based on the 10 ppb.” Id. 

5. EPA’s May 8, 2006 Determination

After I granted a stay in this case on March 23, 2005, the EPA reviewed subsections

(1), (2) and (5) of the Phosphorus Rule to determine if they are new or revised State water

quality standards. EPA May 8, 2006 Determination, at 1 [PR-AR-71]. In its May 8, 2006

Determination, the EPA concluded that subsections (1), (2) and (5)(a)-(c) are not new or

revised water quality standards. Id. However, EPA determined that paragraph (5)(d) was

a new or revised water quality standard and stated that it would approve or disapprove that

provision in a subsequent determination, depending on whether (5)(d) was consistent with

the CWA. Id.

6. EPA’s May 31, 2006 Determination

On May 31, 2006, EPA issued its Determination in which it approved paragraph

(5)(d) of the Phosphorus Rule as a new or revised water quality standard based on its

conclusion that paragraph (5)(d) is consistent with the CWA. EPA May 31, 2006

Determination, at 1 [DE 141 at 4]. According to the EPA, Paragraph (5)(d) provides that

discharge limits for discharges into the Everglades Protection Area shall be based on

technology based effluent limitations (TBELs), established through best available

phosphorus reduction technology (BAPRT). Id. at 2 [DE 141 at 5]. 

Paragraph (5)(d) also provides that discharge limits for permits allowing discharges

into the Everglades Protection Area “shall not require water quality based effluent

limitations through 2016.” F.A.C. § 62-302.540(5)(d) (“Phosphorus Rule”). The EPA

interpreted this language, “[c]onsistent with the FDEP’s interpretation of this provision,” to

be limited to situations where a moderating provision had been granted by DEP for an

individual permit and approved by EPA. EPA May 31, 2006 Determination at 3 [DE 141

61

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at 6] (citing DEP’s May 5, 2006 letter). EPA referred to this type of provision as an

“authorizing provision,” and stated that EPA first reviews an authorizing provision and then

subsequently reviews each application of the provision to a particular discharger. Id. at 4.

In concluding its Determination, EPA approved paragraph (5)(d) as a water quality

standard because it found that paragraph (5)(d) implements subsection (6) in a manner

consistent with 40 C.F.R. § 131.10.

62

It was arbitrary and capricious for the EPA to consider each section of the Rule in isolation

and not review the Rule as a comprehensive, integrated whole for compliance with the

CWA and its implementing regulations. An integrated consideration of the Rule reveals

that it is layered with “avoidance mechanisms” that are linked together and function to

excuse non-compliance with the 10 ppb phosphorus criterion. In order to understand the

effect of the Rule, these mechanisms must be viewed in conjunction with each other, not

separately.

 What the EPA was called upon to do, and what this Court must review in terms of

EPA’s administrative actions, is to determine whether the Rule follows the mandate of the

CWA and protects the Everglades from long-term phosphorus concentrations above 10

ppb, which causes an imbalance in the Everglades’ aquatic flora and fauna. EPA Jan.

2005 Determination, at 5 [PR-AR-69]. Where, as discussed below, the Rule affords even

parts of the Everglades no protection from long-term phosphorus concentrations above 10

ppb, EPA’s approval of the Rule as protective of the designated use of the “water body as

a whole,” id. at 2, is arbitrary and capricious, regardless of the length of the administrative

record involved. 

In its January 2005 Determination [PR-AR-69], EPA conducted a selective review

of only Sections 3 (“Definitions”), 4 (“Phosphorus Criterion”), 6 (“Moderating Provisions”)

and 7 (“Document Incorporated by Reference”) as revisions to water quality standards, and

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63

approved them as consistent with the CWA, except for subsection 4(c)(1). This subsection

concerned the compliance methodology for achieving the phosphorus criterion in the

Refuge (WCA 1). After revision, the EPA approved that subsection in its July 27, 2005,

Determination [PR-AR-70]. 

Initially, the EPA declined to review Section 1 (“Purpose and Scope”); Section 2

(“Findings”), and Section 5 (“Long-Term Compliance Permit Requirements for Phosphorus

Discharge into EPA”). EPA Jan. 2005 Determination, at 11 [PR-AR-69]. Nonetheless,

after this Court’s order of February 16, 2006 [DE 124], EPA elected to review these

sections. It concluded that Sections 1, 2 and 5 (a) through (c) were not changes in water

quality standards, but that subsection 5(d) (setting discharge limits for permits) was a

change in water quality standards. EPA May 8, 2006 Determination [PR-AR-71]. It

concluded that subsection 5(d) did not conflict with the CWA because it was “not an

authorizing provision for compliance schedules.” EPA May 31, 2006 Determination, at 23

[DE 141]. 

I find that the EPA was arbitrary and capricious and in violation of the CWA in

concluding that portions of subsections 1, 2, 3, and 5 were not changes in water quality

criterion. I also find that EPA was arbitrary and capricious, and in violation of the CWA,

when it determined that subsections 5(d) and 6, which were changes in water quality, were

in compliance with the CWA. I affirm, however, the EPA’s conclusions adopting the use

of a long-term geometric mean of 10 ppb, as implemented through the Four-Part Test and

data screening. I start the discussion with these affirmances. 

2. The 10 PPB Phosphorus Criteria Itself is Valid

F.A.C. § 62-302.540(4)(a) establishes a numeric criterion for phosphorus for waters

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45

The numeric criterion for criterion for Class III waters is “a long-term geometric mean

of 10 ppb, but shall not be lower than the natural conditions of the [Everglades Protection

Area] and shall take into account spatial and temporal variability.” F.A.C. § 62-

302.540(4)(a) (Phosphorus Rule).

64

of the Everglades Protection Area. The record is replete with determinations and findings 45

that a 10 ppb of total phosphorus in the water column as a long term value, taking into

account spatial and temporal variability, is protective of the designated use and of the

natural flora and fauna in the Everglades and complies with 40 C.F.R. Section 131.1. PRAR-69 at 5. Much scientific literature supports this conclusion, including an EPA

publication from December 2000, entitled Ambient Water Quality Criteria

Recommendations Information Supporting the Development of State and Tribe Nutrient

Criteria for Wetland in Nutrient Ecoregion XII, EPA 822-B-00-23. The EPA acted

consistent with the CWA in finding that these conclusions are reasonable. PR-AR-70 at 6-

10. The record likewise supports the EPA’s conclusion that limits higher than 10 ppb are

not protective and would likely lead to an imbalance of aquatic flora and fauna in the water

body. See EPA Jan. 2005 Determination at 5 [PH-AR-69] (“Scientific demonstrations have

indicated that a long-term phosphorus criterion exceeding 10 ppb would not be protective

of natural populations of aquatic flora and fauna in the Everglades.”) 

Plaintiffs’ challenges to the Rule do not go to the 10 ppb criterion as such (other

than to the use of a geometric mean), but to the remaining provisions of the Rule (4(b)-(f)

which avoid application of the 10 ppb criterion. These remaining paragraphs of Subsection

4 address how achievement of that criterion shall be determined, adjustment of

achievement methods, and data screening. 

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46

The Defendants place considerable emphasis on the final order of the administrative

law judge in Sugar Cane Growers Cooperative v. Department of Environmental Protection,

Case No. 0302884RP (Final Order, June 17, 2004)(PR-AR-35), aff’d, Miccosukee Tribe

of Indians v. New Hope Sugar Co., 906 So.2d 1064 (Table)(Fla.1st DCA 2005). While this

Order is without doubt comprehensive in addressing state law administrative issues, it is

neither controlling, nor particularly helpful here, because this case is about the federal

CWA and its implementing regulations as applied to the Environmental Protection Agency.

The ultimate issue decided by the administrative judge did not deal with federal law, but

with “... whether the Proposed Rule is an invalid exercise of delegated legislative authority

....” Id. at 85, ¶ 194. Where useful for background purposes, I have cited to the

administrative order for reference.

65

I first address those portions of the Rule which pertain to permits and moderating

provisions. I then return to consider the Plaintiffs’ arguments on the methods of achieving

the phosphorus criterion.

46

3. Permits and Moderating Provisions

a. EPA Arbitrarily and Capriciously Approved a Rule that

Contains a Blanket Exemption From Compliance and a Change

in the Compliance Schedule Until 2016 as an Element of Water

Quality Standards.

While agency action is generally entitled to deference under the proper

circumstances, the agency action at issue here consists of legal interpretations by the EPA

in its CWA review of the Rule. If that interpretation is “not in accordance with law,” in light

of the plain wording of the CWA and the Rule, notions of deference are without meaning.

Also, although an agency’s interpretation of its own regulation is usually given substantial

deference, “[a]n agency interpretation of a relevant provision which conflicts with the

agency’s earlier interpretation is ‘entitled to considerably less deference’ than a

consistently held agency view.” Cmty. Hosp. Of Monterey Peninsula v. Thompson, 323

F.3d 782, 792 (9th Cir. 2003)(citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 n. 30 (1981)).

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47

In its November 5, 2003 Determination, the EPA concluded that the subsection

4(e)(3) amendatory language [“During the implementation of the initial phase of the Long

Term Plan, permits issued by the department shall be based on BAPRT, and shall include

technology-based effluent limitations consistent with the Long Term Plan”] does not “on

its face foreclose inclusion of additional, or more stringent effluent limitations to achieve

water quality standards.” EPA Nov. 5, 2003 Determination, at 10 [PR-AR-11]. The 5(d)

Rule does exactly that by stating that discharges into the Everglades Protection Area “shall

not” require water quality based effluent limitations through 2016.

66

At the same time, when an interpretation is based on a rational explanation, even if I

disagree, deference is required. 

b. Subsection 5(d) of the Rule

 Subsection 5(d) of the Rule addresses Long-Term Compliance Permit

Requirements for Phosphorus Discharges into the Everglades Protection Area. This

provision, on its face, forecloses the inclusion of additional or more stringent effluent

limitations to achieve water quality standards through 2016. It provides: 47

Discharge limits for permits allowing discharges into the EPA shall be based

upon TBELS established through BAPRT and shall not require water quality

based effluent limitations through 2016. Such TBELs shall be applied as

effluent limitations as defined in subsection 22-302.200(10), F.A.C.

Thus, until 2016, discharge limits for permits allowing discharges into the Everglades

Protection Area shall be based on TBELs [Technology Based Effluent Limitations]

established through BAPRT [the Long-Term Plan], not the long term geometric mean of

10 ppb phosphorus. This Rule subsection follows and applies Sections 4(e)(3) and 10(a)

of the Amended EFA which provide that “[d]uring the implementation of the initial phase

of the Long-Term Plan, permits issued by the department shall be based on BAPRT, and

shall include technology based effluent limitations consistent with the Long-Term Plan ....”

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48

The Court’s reading of the clear language is supported by a key finding of the Rule

itself. The Environmental Regulation Commission found that the Rule must “incorporate

a ‘flexible approach’ towards the application of the numeric phosphorus criterion for

phosphorus in order to guide the implementation of phosphorus reduction in the

Everglades Protection Area.” F.A.C. § 62-302.540 (2)(l). The Commission claimed that its

“flexible approach” is authorized by Florida law and EPA Regulations set forth at 40 C.F.R.

Part 131, and that it exercised its authority by “including in this rule both a numeric

interpretation of the phosphorus criterion and [by] . . . permitting and moderating

provisions.” 

49

A water quality standard variance is a short-term exemption from meeting the

otherwise applicable water quality standards. PR-AR-69 at 11 (citing 40 C.F.R. §131.13)

Under EPA regulations, a variance is pollutant specific and must be reviewed every three

years. PR-AR-69 at 13 (citing 40 C.F.R. 131.20(a); PR-AR-4 at 5-11. The EPA water

quality handbook states that the State must demonstrate that meeting the standard is

unattainable as part of the procedure for obtaining a variance. PR-AR-4 at 5-11 to 5-12.

The EPA arbitrarily characterizes the type of variance under the Rule as “short-term,” but

that is in direct contradiction to the fact that the variance procedure under the Rule is to be

applied for a period of at least 10 years, through 2016. It is irrational to consider this “shortterm” when, at the same time, the EPA categorically acknowledges that any discharge

above the 10 ppb standard is not protective of the Everglades. Besides, as we have seen,

the total cummulative blanket variance since the enactment of the EFA is now 22 years.

67

§§373.4592(4)(e)(3) and 10(a). The provisions [implementing BAPRT and not requiring 48

specific discharge limits for phosphorus] are in violation of the requirements of the CWA,

§§ 301(b)(1)( c), 402(a)(1) and (2), and 510 and circumvent 40 C.F.R. § 122.44(d)(1)( i),

(ii), (iii), and vii(A), and 40 C.F.R. §122.44(d)(5). The provisions are also in direct conflict

with the express mandate of the CWA, which requires imposition of WQBELs when TBELs

are inadequate. 33 U.S.C. § 1312(a); 40 C.F.R. § 122.44(d). Such across the board

application is contrary to the Clean Water Act and regulations which allow variances to 49

apply only to permit holders that make a request, while the underlying water quality

standard remains in effect for the remainder of the water body. See Idaho Mining Ass’n v.

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50

In Idaho, the EPA created the rule for Idaho cold water criteria for certain water

bodies. The district court found: “EPA’s variance procedure at 40 C.F.R. § 131.35(d) ... is

another method by which water quality criteria may be adjusted to reflect local conditions

without affecting the intended level of protection of a particular water body. Pursuant to this

procedure, the Regional Administrator is authorized to grant individual NPDES permit

holders variances from water quality standards where the permit holder demonstrates that

certain conditions render attainment of the standards infeasible. See 40 C.F.R. §

131.33(d)(3). However, the variance applies only to the permit holder requesting the

variance, and the underlying water quality standard remains in effect. 40 C.F.R. §

131.33(d)(1).” (emphasis added). 

In contrast, under the Phosphorus Rule, the underlying water quality criteria is

modified across-the-board by the subsection 5(d) and subsection 6 provisions. While the

Rule may establish 10 ppb, that is not what is mandated. Thus, a permittee that follows the

Long-Term Plan need not do anything, including a use attainability analysis, to receive an

extended compliance schedule in impacted areas until 2016, and beyond that date in

unimpacted areas, regardless of the biological impacts of the discharges to the Everglades

and the imbalance that is caused. 

51

Paragraph 5(a) of the Rule also implicates the Court’s discussion. It provides that

“[I]n addition to meeting all other applicable permitting criteria, an applicant must provide

reasonable assurances that the discharge will comply with state water quality standards

as set forth in this section.” EPA interprets this section to require a permit applicant “to

provide reasonable assurance that the discharge will comply with the phosphorus criterion

established in subsection 4 of the Rule.” PR-AR-71 at 9. However, the actual Rule

language, on its face, does not require compliance with the “criterion,” but with the

“standard” in this section. Subsection 5(b)(3), being in that section, provides that

discharges into the EPA shall be deemed in compliance with state water quality standards

upon a demonstration that the discharges comply with the moderating provisions provided

by the Rule. Thus EPA’s interpretation fails as a matter of law. While the EPA continues,

throughout its Determinations on the Rule, to refer to “water quality standards,” it does so

without regard to the State’s use of the term “water quality standard” to include moderating

provisions (a component of water quality under State law) which is not recognized as such

under the CWA. This is also arbitrary and capricious and not in accordance with law. 

68

Browner, 90 F.Supp.2d 1078, 1103 n.11 (D. Idaho 2000).50

c. Subsection 6 of the Rule

If a discharger is unable to provide reasonable assurance that a TBELS based on

BAPRT is sufficient to meet subsection 5(d), then the discharger may rely on subsections

6(a)(1) and 6(a)(5). These subsections establish “moderating provisions” which permit 51

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52

Subsection (6)(a)(3) provides that the Long-Term Plan shall constitute BAPRT, and

that “[T]he ‘planning goal’ of the Long-Term Plan is to achieve compliance with the criterion

set forth in subsection (4) of this rule [the phosphorus criterion].”

53

The parties argue at length concerning whether the NPDES permits for STA 2, 5

and 6 constitute evidence that subsections 5(d) and 6 create a “blanket exemption” from

permitting requirements. I do not reach this question because I rely on the clear language

of the Rule itself. 

54

Under subsection (1)(h) of the Rule, the Long-Term Plan constitutes a

“comprehensive program to optimize the STAs and BMPs to achieve further phosphorus

reductions and thereby accomplish implementation of Best Available Phosphorus

Reduction Technology (BAPRT).” This means that, in impacted areas, discharges are

permitted so long as the STAs and BMPs are “optimized.” The Rule completes this circle

by declaring that “[o]ptimization of existing STAs, in conjunction with BMPs, is currently the

69

discharges into or within the “impacted areas” of the Everglades Protection Area until

December 31, 2016, “using net improvement” and beyond that date in unimpacted areas

for hydrorestoration purposes. Under this provision, the numeric phosphorus criterion

becomes a “planning goal.” Instead of meeting the 10 ppb criteria, discharges into

52

impacted areas “shall be permitted” using net improvement as a moderating provision.

Even if the phosphorus numeric criterion (and the narrative criterion) are not met in

accordance with the Rule’s achievement methodology, the Rule is unequivocal that “[n]o

action shall be required, provided the net improvement or hydropattern restoration

provisions of subsection (6) below are met.” No action translates into “no enforcement” of

the protective 10 ppb criteria.53

The phrase “net improvement” is not defined in the Rule, but the Rule provides that

“[i]mplementation of BAPRT will result in net improvement in the impacted areas of the

EPA” regardless of whether such “net improvement” causes in an imbalance of Everglades

aquatic flora and fauna. F.A.C. § 62-302.540 (6)(a)(3). To use an example, if a discharge 54

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most cost-effective and environmentally preferable means to achieve further phosphorus

reductions to the EPA and to restore impacted areas.” F.A.C. § 62-302.540 (2)(e)(2). 

55

The Rule provides for a second form of moderating provision dealing with

discharges into or within “unimpacted areas.” These type of discharges are permitted for

“hydropattern restoration purposes” if a permit applicant can show that (1) the discharge

will be able to implement or cause to be implemented BAPRT; (2) the environmental

benefits of establishing the discharge clearly outweigh the potential adverse impacts that

may result in the event the phosphorus level in the discharge exceeds the criterion; and

(3) the discharge complies with anti-degradation requirements. Unlike the moderating

provisions for impacted areas, there is no date comparable to 2016. The clear inference

is that moderating provisions for unimpacted areas can be permitted indefinitely, regardless

of whether the 10 ppb criteria is achieved. 

70

was at 50 ppb but reduced through BAPRT to 40 ppb, there is a net improvement, although

the “net improvement” is not protective at the established 10 ppb as accepted by the EPA.

Nonetheless, the Rule is unequivocal that “Until 2016, . . . permits shall include

technology-based effluent limitations consistent with the Long-Term Plan.” This section

must be read in para materia with subsection (5)(b)(3) which provides that “discharges into

the EPA will be ‘deemed’ in compliance with state water quality standards upon a

demonstration that . . . discharges will comply with moderating provisions of this rule.”

Thus, even if the phosphorus levels in the discharge will not be at or below the phosphorus

levels set forth in the Rule (see subsection 5(b)(1)), or even if such discharges will cause

or contribute to exceedences of the phosphorus criterion set forth in the Rule (see

subsection 5(b)(2)), the discharges will be allowed so long as such discharge complies with

moderating provisions. This “blanket exemption,” without the State first performing a “use 55

attainability analysis” is contrary to the CWA.

4. The EPA has failed to Act In Accordance with Law by Not Requiring

the State of Florida to Perform a “Use Attainability Analysis” as a

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Precondition to Adopting a Blanket Exemption or Variance Procedure

in the Phosphorus Rule

Subsection 5(d) and the “moderating provisions” of subsection 6 create “blanket

exemptions or variances.” The EPA itself recognized this in its letter to the DEP, dated July

7, 2003, in which it provided its comments on the draft Phosphorus Rule. EPA July 7,

2003 Letter, at 4-5 [PR-AR-13]. For reasons that remain undisclosed, the EPA does not

refer to this letter, or the State’s failure to address the concerns set forth, in any of its

Determinations. 

 In referring in its commentary to what are now renumbered subsections (5)(d),

(6)(a)(1) and 6(a)(5), the EPA acknowledged that “[t]hese sections specify that through

2016 discharges “shall be” permitted based on TBELs established through BAPRT.” Id.

at 4 [PR-AR-13]. Of importance, the EPA went on to say “[t]he effect of this provision is

to automatically grant compliance with the criteria for discharges implementing BAPRT

whether or not the discharger needs the extended time frame for compliance. The

apparent presumption in the Rule is that all discharges will need the additional 10 years

from 2006 to achieve compliance with the criterion.” Id. (emphasis added). 

Neither the CWA, nor its implementing regulations, refer to “moderating provisions.”

The EPA assumed moderating provisions were equivalent to “variances,” although neither

the Amended EFA nor the Phosphorus Rule uses the word “variance.” While it is correct

that the CWA provides relief from a criterion in certain circumstances, it must first be

demonstrated that the criterion cannot be met. To determine this, the CWA provides that

(1) states may authorize variances from the applicable water quality standard if a state can

justify that the current use and supporting criterion is not attainable at the time for any one

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56

The reasons for not being feasible include: (1) naturally occurring pollutant

concentrations prevent the attainment of the use; (2) natural, ephemeral, intermittent or low

flow conditions of water levels prevent the attainment of the use, unless these conditions

may be compensated for by the discharge of sufficient volume of effluent discharges

without violating State water conservation requirements to enable uses to be met; (3)

human caused conditions or sources of pollution prevent the attainment of the use and

cannot be remedied or would cause more environmental damage to correct than to leave

in place; (4) dams, diversions or other types of hydrologic modifications preclude the

attainment of the use, and it is not feasible to restore the water body to its original condition

or to operate such modification in a way that would result in a way that would result in the

attainment of the use; (5) physical conditions related to the natural features of the water

body, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like,

unrelated to water quality, preclude attainment of aquatic life protection uses, or (6)

controls more stringent than those required by Section 301(b) and 306 of the Act would

result in substantial and widespread economic and social impact.

72

of the reasons specified in 40 C.F.R. § 131.10(g); or (2) states may authorize a compliance

schedule for discharges to comply with discharge limits in 40 C.F.R. §122.47. The CWA

regulations specifically provide that a state “must” conduct a use attainability analysis, as

specified in §131.3(g), when it proposes to adopt subcategories of uses specified in

Section 101(a)(2) of the Act which require less stringent criteria. See 40 C.F.R.

§131.10(j)(2) (to that effect).

I address now the first option. Under 40 C.F.R. §131.10(g), states may remove a

designated use which is not an existing use, or establish sub-categories of a use, if the

state can demonstrate that attaining the designated use is not feasible because of one of

six reasons. In its July 7, 2003, commentary on the draft Rule [PR-AR-13], the EPA 56

reviewed the options available to the State of Florida in its draft Rule, including this option.

While the EPA recognized that a “temporary variance” may be granted to an “individual

discharger,” it warned the Florida DEP that:

In far less common situations, a temporary variance from the protective

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57

The EPA, in its July 7, 2003, letter to Florida DEP further commented on the effect

of a “blanket variance.” It stated: “[I]f the Rule treats the moderating provision as a “blanket

variance,” EPA will likely have to review these documents (the Long-Term Plan), as part

ofthe Rule review process, to determine if regulatory requirements for the demonstration

and justification for a “blanket variance” have been satisfied. Since the Long-Term Plan is

subject to change, using it to demonstrate specific findings may trigger additional reviews

as the Long-Term Plan is changed.” EPA July 7, 2003 Letter at 5 [PR-AR-13] (emphasis

added). No such detailed review of the Long-Term Plan occurred as part of the Rule

review process, nor have any adopted revisions to the Long-Term Plan been submitted to

the EPA for further review.

73

criterion for a group of discharges, such as a category of discharges facing

similar treatment needs, may be granted upon approval by EPA (i.e., a

blanket variance). The EPA approval requires an adequate

demonstration/justification based on the factors at 40 C.F.R. §131.10(g). If

it is the intent of this Rule to provide a “blanket variance” for all

discharges into the EPA through 2016, the § 131.10(g)

demonstration/justification must be provided to EPA in conjunction

with the Rule.

Id. at 4.

The EPA recommended to the Florida DEP that the language of Section 6 [as

renumbered] be modified to avoid a “blanket variance.” The EPA said the language should

read “The following moderating provisions may be applied to the extent justified under the

law on a “case-by-case” basis for discharges into or within the EPA for the phosphorus

criterion set forth in the Rule. Id. at 5. In other words, the EPA specifically requested the

Florida DEP to change the language to say that they would be implemented on a case-bycase basis, instead of across-the-board. The EPA stated that it was “... concerned that

it may be difficult for FDEP to provide the adequate justification needed to support

a §131.10(g) variance, particularly on a “blanket” basis.” Id. (emphasis added).57

The justification referred to by the EPA can only be considered through a use

attainability analysis. Such an analysis is a “structured scientific assessment of factors

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The very concept of “impacted” areas contradicts the use for “maintenance of a

healthy, well-balanced population of fish and wildlife,” required by the Class III designation.

The idea seems to be if you degrade it, you can continue to do so. The goal of the CWA

is to stop the polluted discharges, not to downgrade or ignore the designated use.

Accordingly, a state may only take such liberty in implementing a water quality standard

that creates a more stringent, or more protective, stance than the federal guidelines.

Dubois v. Dep’t of Agric., 102 F.3d 1273, 1300 (1st Cir. 1996)(“States may not set

standards that are less stringent than the CWA.”)

74

affecting the attainment of the use which may include physical, chemical, biological, and

economic factors as described in § 131.10(g).” 40 C.F.R. § 131.3(g). The process

requires a notice and opportunity for a public hearing. 40 C.F.R. § 131.10(e).

 Here, the record is undisputed, and it was conceded at oral argument, that the

State of Florida did not conduct a use attainability analysis. Nevertheless, it adopted

blanket moderating provisions that created subcategories of impacted and unimpacted

waters within the Everglades Protection Area, where all waters are Class III and

Outstanding Florida Waters. In the impacted areas, less stringent criteria (TBELs based

on BAPRT) were required. By creating impacted and unimpacted areas of Class III waters

in the Everglades Protection Area, the Phosphorus Rule establishes two subcategories of

designated use for the Everglades without complying with federal regulations and following

the procedure for downgrading a use. 40 C.F.R. § 131.10(g). 

58

The Florida DEP did not accept the EPA’s recommended language change. Instead

of changing the language, the DEP General Counsel wrote to the EPA and stated in a

letter, written after the Rule was adopted, what the Rule did not say. He said: “Any

issuance of a moderating provision under Paragraph (6)(a) or (6)(b) will be in association

with permits on a case-by-case basis.” DEP January 12, 2005 Letter, at 2 [PR-AR-18]. 

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In its determination that the Rule complies with the mandates of the CWA, the EPA

determined that the moderating provisions represent a “variance authorizing provision,”

rather than a blanket exemption excusing non-compliance with the phosphorus criterion

for entire categories of discharges. EPA May 31, 2006 Determination, at 4. In making its

determinations, EPA relied at least in part on an interpretation urged by an attorney for

Florida DEP in two informal letters dated January 12, 2005 [PR-AR-18] and May 5, 2006

[PR-AR-72 at 3]. The EPA adopted the Florida DEP’s interpretation linking Sections 5(d)

and 6 and referring to the moderating provisions as “variance procedures,” finding that

Florida DEP’s own interpretation of its rules is “authoritative,” notwithstanding that the

DEP’s interpretation was in a letter entirely detached from the formal rule-making process.

60

EPA relies on Defenders of Wildlife v. EPA, 415 F.3d 1121, 1127-28 (10th Cir.

2005) to support that it is entitled to rely on the State’s interpretation of its own regulations.

75

Rather than relying on the plain language of the Rule and comprehensively

analyzing its effect on the entire Everglades Protection Area in terms of designated use,

water quality criterion and the anti-degradation policy, EPA arbitrarily relied upon the afterthe-fact letter from the DEP attorney. The EPA relied on the assurance that “shall not 59

require WQBELs through 2016" did not mean what it said and would apply only for a

particular permit. PR-AR-71 at 24; PR-AR-72 at 1, 3. While the DEP attorney’s letter

admits that a moderating provision pursuant to subsection (6) of the Rule, or other

variance, would temporarily make the criterion less stringent than 10ppb, EPA capriciously

ignores that subsections 5(d) and 6 do the very same thing by changing the compliance

schedule. It is incredulous that EPA would place its imprimatur on an attorney’s after-thefact and self-serving letter which concludes that the Rule (which specifically followed the

Amended EFA) did not authorize a new compliance schedule when the clear language

explicitly said otherwise. Because the DEP attorney’s conclusion is contrary to the clear

wording of the Rule, I place no weight or reliance on its lawyer’s so-called “administrative

interpretation.” 

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This case is not persuasive or controlling. Here, only the Florida Environmental Regulation

Commission was empowered to speak for the State of Florida, as the standards setting

body on the Rule, not an attorney for the agency in advocating an after-the-fact rule

interpretation. Besides, the Rule is not ambiguous, such that it would require an

interpretation. Additionally, letter interpretations by agencies of their regulations are

generally held to be less reliable than officially adopted agency provisions and thus less

deserving of deference. See Leavitt, 488 F.3d at 915 (declining to grant Chevron deference

to agency guidance letter because it was not the product of a formal agency adjudication,

notice-and-comment rule-making, or any other circumstances reasonably suggesting that

Congress ever thought of guidance letters as deserving deference). This is particularly true

when it is not the EPA’s own interpretation of its rules but an interpretation relied on by the

EPA coming from the state. It would be odd, indeed, if a federal court had to give Chevron

deference to a DEP lawyer who is advocating a position to convince the EPA not to follow

the law. 

76

I further reject, and find arbitrary and capricious, the EPA’s explanation that the

subsection 5(d) and 6 provisions simply constitute a “policy” that merely identifies the

“methods for implementing such a policy . . . .” 40 C.F.R. § 131.12(a). See Nw. Envtl.

Advocates v. EPA, 268 F.Supp.2d 1255, 1265 (D. Or. 2003)(“An omnibus reference that

the state’s entire water quality standards will be implemented” cannot rationally be read as

a ‘policy’ that specifically identifies the ‘methods for implementing such a policy . . . .’ 40

C.F.R. § 131.12(a)).” The EPA cannot escape the notice and comment requirements for

changing its variance regulation at 40 C.F.R. §131.10 “by labeling a major substantive legal

addition to it a mere interpretation.” Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024

(D.C. Cir. 2000). 

5. The EPA has Acted Arbitrarily, and Not In Accordance With Law, by

Failing to Conclude that the Removal of Water Quality Based Effluent

Limitations Through 2016 Constitutes a De Facto Change in

Compliance Schedule Requiring a Determination of Reasonableness.

 The EPA has condoned, without the requisite analysis, a de facto moratorium on

compliance with the phosphorus criterion for an entire class of dischargers who implement

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To the extent that EPA may now claim that the adoption of the Long-Term Plan in

thePhosphorus Rule should be construed as a “reasonable” compliance schedule, it failed

to do so in the Determinations, and may not now do so in its briefs.

62

The EPA makes the untenable argument that authority for the “compliance

schedule” in permits rests with § 403.088(2)(e) of the Florida Statutes and, therefore, it

follows that the language in subsections 5 and 6 do does not create a compliance

schedule. DE 298 at 3, 4. While § 403.088(2)(e) gives general authority for compliance

schedules for an individual permit on a case-by-case basis, the Phosphorus Rule carries

out the across-the-board legislative mandate that WQBELs shall not be met until 2016, as

long as all permittees follow the requirements of subsections 5 and 6 of the Rule. Section

403.088(2) of the Florida Statutes does not apply to the Amended EFA’s and the Rule’s

blanket exemption.

77

BAPRT at least through 2016. The extension and expansion of this compliance schedule

through the Amended EFA and the Rule beyond the December 31, 2006 date, as

previously approved by the EPA, is a change to water quality standards just as the

original 1994 EFA compliance schedule constituted a change. The EPA had a duty to 61

analyze whether the ten additional years (or more) to meet the 10 ppb phosphorus criterion

was “reasonable” under the CWA, just as it did in its 1999 Determination on the significant

delay wrought by the 1994 EFA, which at the time it was passed allowed twelve years for

compliance. At that time, the EPA addressed the question “[d]oes Florida’s narrative

nutrient criterion, as amended by the compliance schedule, still satisfy CWA section

303(c)(2)(A) and 40 C.F.R. 131.11?” and [d]oes the record support the compliance

schedule [as reasonable]?” PR-AR-9 at 7-9. This same question is still pertinent and

unanswered in terms of the Amended EFA and Phosphorus Rule. 

Instead of addressing the hard questions, the EPA arbitrarily concluded that the

deadline did not change. PR-AR-71 at 23. A review of the Phosphorus Rule, and the 62

Amended EFA, establishes on their face that the December 31, 2006, deadline had

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changed, and that there is no longer a date certain when the phosphorus criterion will

even be met. A clear reading of the Rule establishes without ambiguity that subsections

5(d) and 6 extend the compliance deadline previously approved by the EPA. The EPA’s

argument to the contrary fails any test of reason. The State of Florida would have no

reason to include the December 31, 2016, extension part of the water quality standards in

the Amended EFA and the Rule if the 2006 deadline had remained in effect. 

Finally, in its Rule Determinations, the EPA fails to mention, let alone consider, the

cumulative impact on the phosphorus criterion, the designated use, and the antidegradation policy of allowing such discharges based on TBELs into the Everglades

Protection Area for another ten years, including from farmer permittees within the EAA and

the C-139 Basin. In fact, the EPA never considers the effect of subsection 5(d) on the EAA

Best Management Practices under Section 373.4592(4)(f) (entitled “EAA best management

practices”) which allowed farmers to pollute through 2006 and now, by virtue of the

Amended EFA and this Rule provision, allows farmers, directly or indirectly, to further

discharge into the Everglades Protection Area based upon TBELs established through

BAPRT without regard to water quality effluent standards through 2016. The significant

concerns voiced in Judge Davis’ Order, and evaluated in EPA’s 1999 Determination, have

simply dropped off EPA’s current radar screen. 

Nothing could justify a schedule so slow and “glacial” as to defeat the CWA’s goals.

See Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 967 (W.D. Wash. 1996)

(finding that “nothing in the law could justify so glacial a pace” in discussing a 25-year

schedule for development of TMDLs under the CWA.). “Simply put, the CWA provides a

federal floor, not a ceiling, on environmental protection. If a state seeks to provide a

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standard that is less stringent than the federal Clean Water Act’s floor, or seeks to apply

a standard in a way that is otherwise invalid under federal law, then federal agencies and

federal courts are obligated to resolve the application of the federal Clean Water Act in any

case that properly comes before it.” Dubois v. Dep’t of Agric., 102 F.3d 1273, 1300 (1st

Cir. 1996).

6. Geometric Mean and Method for Achieving the Numeric Phosphorus

Criterion.

a. Achievement of Criterion in Everglades National Park.

Achievement of the phosphorus criterion in the Park is based on the methods set

forth in Appendix A of the Settlement Agreement Consent Decree unless the Settlement

Agreement is rescinded or terminated. F.A.C. § 62-302.540(4)( c). The Department is

required to review data from inflows into the Park at locations established pursuant to

Appendix A of the Settlement Agreement. The phosphorus concentration limits for inflows

into the Park must not violate those limits. Id. The Plaintiffs do not even challenge this

methodology, and had previously consented to the Settlement Agreement which adopted

it. 

b. Achievement of Criterion in the Refuge is Arbitrary and 

Capricious.

The measurement of achievement of the phosphorus criterion in the Refuge,

however, is another matter. The EPA ignored in its final Rule determinations that a

significant portion of the Everglades Protection Area is composed of the Refuge which has

a more protective classification of water quality than Class III. The Loxahatchee National

Wildlife Refuge (WCA 1) is an Outstanding Florida Water. F.A.C. § 62-302.700(9)(a)(3),

9(B)(17). This classification means that the State “shall afford the highest protection to

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Subsection 5(c) of the Rule provides that discharges into the Park must not result

in a violation of the concentration limits established for the Park in Appendix A of the

Settlement Agreement Consent Decree as determined through the methodology set forth

in subsection 4. I read this provision to prevail over subsection 5(d) and subsection 6

moderating provisions, such that discharges into the Park’s impacted areas or unimpacted

areas would not be permitted as blanket variances if the concentration limits established

for the Park in Appendix A of the Consent Decree are not met. Admittedly, the Rule is not

totally clear on this question because the moderating provisions apply to the entire

Everglades Protection Area, and the Rule itself refers to “impacted areas” in the

Everglades National Park. See subsection (4)(b)(“Achievement of the phosphorus criterion

for waters in the EPA shall be determined separately in impacted and unimpacted areas

in . . . the Everglades National Park.”) However, the same protective provisions that apply

to the Park are not set forth in the Rule for the Refuge, which is designated an Outstanding

Florida Water and therefore entitled to a higher level of protection than Class III Waters.

64

The following is an exchange from the May 21, 2008, oral argument:

Court: In fact, the EPA sent out this letter to the department saying here are

the various ways that this problem we have with regard to permits based on

BAPRT through 2016 can be addressed, and if it’s a blanket variance, then

there has to be, according to the EPA, consideration of the § 131.10(g)

demonstration justifications with public hearing, right? 

Mr. Rave: That’s correct, Your Honor.

Mr. Mancusi-Ungaro: That’s correct.

The Court: That wasn’t done.

Mr. Rave: That’s correct, because after consulting with the state and getting

the state’s interpretation of what that provision meant, we determined that it

would have to be applied on a case-by-case basis.

The Court: If I determine that not only your methodology but also your

conclusion was contrary to law and arbitrary and capricious and, in fact,

blanket variance provisions were set, then EPA never considered whether

80

such waters and no degradation is to be permitted.” F.A.C. § 62-302.700(1). Moreover,

the Refuge is subject to the Consent Decree that also governs Everglades National Park.

What is critical (in addition to concerns regarding Water Conservation Areas 2 and 3) is

that subsection 5 and 6 moderating provisions apply to, and would automatically allow,

discharges into the impacted areas of the Refuge under blanket variances. See May 21, 63

2008 Hearing Tr., at 17-18. This is an inappropriate subcategory of the Outstanding 64

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that would be a violation of the settlement agreement as well in any

determination. 

Mr. Rave: That’s correct, Your Honor.

May 21, 2008 Hearing Tr. at 17-18.

65

While EPA claims that for some basins, specific progress will be achieved sooner

than 2016, this claim is contradicted by the Long-Term Plan which shows that the 10 ppb

phosphorus criterion will not be met by 2056 in all basins analyzed. PR-AR-69 at 14;

Exhibit K; PR-AR-29.28, Table ES-3.

81

Florida Water designated use under the CWA. The effect would be to expand impacted

areas into pristine areas and allow greater expansion of these impacted areas for the

additional ten years permitted by the EFA Amendments and the Phosphorus Rule.65

In its July 7, 2003, letter on the draft Phosphorus Rule, the EPA made these exact

points to Florida DEP. The EPA recommended deletion from the draft Rule of those

portions which did not sufficiently protect the Refuge. EPA July 7, 2003 Letter, at 2-3 [PRAR-13]. It stated:

This section also provides that phosphorus concentrations in inflows to the

Refuge can exceed the criterion if the discharge concentration does not

exceed the Technology Based Effluent Limitation (TBELS) which is based

on Best Available Phosphorus Reduction Technology (BAPRT). As noted

above, discharges of phosphorus above the criterion of 10 ppb could have

an adverse impact on receiving waters. In addition, the Refuge is designated

an Outstanding Florida Water (OFW) under the Florida water quality

standards (62-302.700), (sic) discharges are not allowed to ‘significantly

degrade’ the water body (see 62-4.242(2)(a)).”

Id. at 3. 

The EPA ignored the effect of its own earlier warning and, further, did not even

consider, in its final Determinations, whether the subsection 5(d) and 6 blanket variance

provisions violated the Settlement Agreement and Consent Decree to which the United

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The Rule provides that “achievement,” meaning “measurement” of the phosphorus

criterion in Everglades National Park would be based on the methods as set forth in

Appendix A of the SettlementAgreement. F.A.C. § 62-302.540(4)(c). There is no exclusion

of the Park from subsection 5(d) and the subsection 6 moderating provisions. Rather,

these provisions apply for discharges into or within the Park. 

67

The EPA also acted contrary to its own procedures. In August of 1994, the EPA

updated its Water Quality Standards Handbook [EFA-AR-9]. The EPA WQS Handbook

makes clear that state relief procedures that are a part of water quality standards “must be

consistent with the requirements of 48 C.F.R. § 131. See 40 C.F.R. § 131.13 (“States may,

at their discretion, include in their state standards, policies generally affecting their

application and implementation.” But, the EPA will continue to approve state-granted relief,

if, among other things, the State demonstrates that meeting the standard is “unattainable”

based upon one or more of the grounds outlined in 40 C.F.R. § 131.10(g) for removing a

designated use.

82

States is a party. Such action is arbitrary and capricious and not supported by any 66

scientific rationale.67

Of significant importance, if the standard tests are not met for measuring

achievement, “no action” is required in the Refuge, provided that net improvement or

hydropattern restoration provisions of the moderating provisions of subsection 6 are met.

See F.A.C. § 62-302.540(4)(d)(2). The EPA did not even consider whether this “escape

clause” constitutes a change of designated use in the Refuge, a change in criterion, a

violation of the CWA’s anti-degradation provisions, or a violation of the Settlement

Agreement. This is arbitrary and capricious, and contrary to the CWA.

c. EPA Properly Determined that the Criterion Measured by a

Geometric Mean, and Implemented Through the Four-Part Test,

is Protective of the Designated Uses.

I now turn to considering the Rule’s methodology for measuring the achievement

of the phosphorus criterion in the Class III Florida Waters of Conservation Areas 2 and 3,

which include the Tribe’s historical ancestral lands. I find no issue under the CWA with the

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use of a geometric mean, coupled with a multiple-step test and data screening. I do,

however, have significant CWA concerns with other aspects of the Rule’s achievement

methodology.

 The Plaintiffs challenge the measurement of the phosphorus criterion utilizing the

“geometric mean” as contemplated by the Amended EFA and the Rule. The Plaintiffs’ main

objection is that the use of a geometric mean follows multiple screening levels against high

phosphorus measurements, so that it re-screens data that is already screened several

times. DE 294, p. 5. 

 I do not find the use of a “geometric mean” to be in violation of the CWA, or that the

EPA’s approval of it is arbitrary or capricious. Although the Plaintiffs criticize the use of a

geometric mean, rather than an arithmetic mean, they present no compelling scientific

evidence that use of a geometric mean is not protective of the designated use. Plaintiffs

also do not address the fact that the studies on which the criterion is based found that

water concentrations with a geometric mean of 10 ppb supported a balanced biological

community typical of the low nutrient Everglades environment. The EPA’s approval of the

criterion is thus supported by the evidence in the record and should be affirmed. 

It is noteworthy that the “geometric mean” standard was included in the 1994 EFA.

It was never challenged by the Plaintiffs following adoption. Also, the record establishes

that the use of a geometric mean is a conventional way of determining numeric criteria and

elements in water quality standards that govern ambient water quality, as well as

compliance with such standards. See also, Administrative Order, at 132.

Because the criterion is expressed in terms of a long-term average concentration,

the Rule also contains an achievement methodology intended to limit the amount of

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The fourth part of the test is that “individual stations in the network shall be deemed

to be unimpacted for purposes of this rule if the five-year geometric mean is less than or

equal to 10 ppb and the annual geometric mean is less than or equal to 15 ppb.” F.A.C.

§ 62-302.540 (4)(d).

69

Plaintiffs criticize the fact that one of the analyses performed for the EPA to evaluate

the Four-Part Test only examined data from the Park and Refuge. However, the EPA also

relied on a statistical analysis of the Four-Part Test conducted by the State in WCA-2 and

WCA-3. PR-AR-18 at 6-7.

84

temporal and spatial variability allowed in meeting the standard. Specifically, the

achievement methodology provides that the criterion is met if the five year geometric mean

averaged across all stations is less than or equal to 10 ppb and (1) the annual geometric

mean averaged across all stations is less than or equal to 10 ppb for three of five years,

(2) the annual geometric mean averaged across all stations is less than or equal to 11 ppb,

and (3) the annual geometric mean at all individual stations is less than or equal to 15 ppb.

Subsection 4(d) (the “Four-Part Test”). In considering the matter, the EPA concluded, that 68

the criterion, as implemented by the Four-Part Test, is protective of the designated use,

particularly since all four parts must be met for the water body to meet the criterion. 

While Plaintiffs raise a number of cogent arguments which attack the “Four-Part

Test,” I cannot ignore, in my limited review function, that the record evidence sufficiently

establishes that Florida DEP and EPA performed statistical analysis of the Four-Part Test

and determined that compliance with the test accurately measures water conditions that

support a balanced population of flora and fauna. PR-AR-18 at 5-6; PR-AR-30; PR-AR-31;

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 560 (D.C. Cir. 2002) (“particular deference is

given by the court to an agency with regard to scientific matters in its area of technical

expertise”). Accordingly, I do not find that the EPA’s Determination as to the Four-part 69

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Test is arbitrary, capricious or not in accordance with law. 

d. EPA’s Approval of the Data Screening Provisions Is not

Arbitrary or Capricious 

In order to ensure that anomalous events do not unduly skew the average value, the

Rule also provides for a data screening methodology. Subsection 4(f) of the Rule provides

that data from monitoring stations will be reviewed and excluded if it does not meet

minimum requirements for data quality or if the data is atypical due to extreme events such

as fire, flood, drought, or hurricanes; temporary human or natural disturbances such as air

boat traffic, authorized restoration activities, alligator holes, or bird rookeries; or hydrologic

conditions outside the range of conditions establishing the criterion. The EPA has

reviewed the Rule’s data screening provision and has determined that the exclusion of

these types of data is appropriate, and not in violation of the Clean Water Act, in ensuring

that monitoring data provide an accurate depiction of conditions in the water body that

would actually affect the integrity of the water, as opposed to temporary or localized

aberrations that are not truly reflective of typical ambient conditions. While the Plaintiffs

raise a number of concerns, none rise to a level that supports arbitrary and capricious

action by the EPA, especially given the record on appeal which supports this aspect of the

EPA’s Determination.

7. The EPA’s Approval of a Portion of Subsection 4(d)(3) of the Rule

[Providing for “No Action” if the Criterion is Not Met Provided

Moderating Provisions Are Met] is Arbitrary and Capricious and Not

Protective of the Water Body 

I underscore that the “achievement methodology” discussed above is without

practical significance in the Rule because, under the Rule, “no action” is required if the

criterion is not achieved, provided that the subsection 6 moderating criteria are met. (“If

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these limits are not met [phosphorus criterion], no action shall be required, provided that

the net improvement or hydropattern restoration provisions of subsection (6) below are

met.”) F.A.C. § 62-302.540(4)(d)(2). I already have discussed the impact of this provision

on the Refuge. It also is of equal concern in regard to the Class III waters of WCAs 2 and

3, particularly to the Tribe as a downstream water user. 

 The subsection 4(d)((2) avoidance mechanism screens out high measurements in

“impacted areas” and excuses non-compliance until 2016 (and indefinitely in unimpacted

areas) so long as a discharger follows the “Long-Term Plan” or provides hydropattern

restoration. This provision, when coupled with the subsection 6 provisions, violates the

CWA. The inclusion of this provision is not scientifically defensible, and it is not protective

of designated uses. See NRDC v. EPA, 16 F.3d 1395, 1402 (4th Cir. 1993) (EPA’s duty

under the CWA “is to ensure that the underlying criteria, which are used as the basis of a

particular state’s water quality standard, are scientifically defensible and are protective of

designated uses.”).

In reviewing this avoidance mechanism, it is important to note that the Rule provides

that achievement of the phosphorus criterion “shall be determined separately in impacted

and unimpacted areas in each . . . water bod[y] . . . .” F.A.C. § 62-302.540(4)(a). This

means that the achievement methodology is to be done separately for each water body

and then done separately in each impacted area and unimpacted area of each water body.

Because all discharge points are in impacted areas, this separation of the water body and

moderating provisions for impacted areas assures discharge permits for all discharges into

the Everglades Protection Area, regardless of phosphorus concentrations, provided the

dischargers follow the Long-Term Plan. 

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 The record provides no reasonable assurance that the designated use of the “water

body as a whole” is being protected. By allowing for “no action,” the Rule creates a change

in designated use. The EPA acted contrary to the CWA by approving such a convoluted

dichotomy. 

The situation becomes even more grievous when, as here, there is not even a

sound scientifically-based standard and methodology for identifying the actual location and

extent of impacted and unimpacted areas within each basin. The phrase “impacted areas”

is defined to mean those areas of the Everglades Protection Area where total phosphorus

concentrations in the upper 10 centimeters of the soils is greater than 500 mg/kg.

Subsection (3)(d). The Rule is not accompanied by a formal and scientifically complete

mapping of the Everglades Protection Area showing the location of “impacted areas;”

however, informal computer based mapping shows extensive impacted areas in Water

Conservation Areas 1 (the Refuge), 2 and 3 as well as some small areas within the Park.

See Map from Feb. 2003 presentation by DEP to ERC [PR-AR-32, 2-27&28-2003, File No.

11], attached to this Opinion as Appendix B.

In its letter of July 7, 2003 to the Florida DEP, the EPA expressed its concerns

regarding the definition of “impacted areas” as not being scientifically established or

sufficiently protective, and as constituting an inappropriate assignment of a subcategory

of the Florida Class III designated use. These concerns were never responded to by the

Florida DEP. The EPA acted arbitrarily and capriciously by ignoring its own

recommendations and allowing the Phosphorus Rule to be adopted in a manner that

violated the CWA. 

The July 7, 2003 letter stated in part:

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The draft rule essentially sets up two subcategories of Florida’s Class III

designated use for the Everglades: an “impacted use and an “unimpacted

use.” The subcategories may differ in how the protective criterion is applied

(depending on whether certain amendments to Section 5 are accepted or

not), but the primary difference is in the availability of the “net improvement”

moderating provision. In the current draft Rule, use of the moderating

provision is more restricted for “unimpacted” areas. Since the moderating

provision is intended to allow discharges of phosphorus above the

protective criterion of 10 ppb, additional adverse impacts to the

receiving waters of the Everglades Protection Area could occur.

Therefore, a scientificallydefensible definition of “impacted” is critical.

The draft Rule identifies “impacted areas” as areas of the [Everglades

Protection Area] where the total phosphorus soil concentration is greater

than 500 mg/kg. Site-specific data from the EPA indicate pristine

(unimpacted) areas with soil concentrations in excess of 500 mg/kg and 600

mg/kg. (See Reddy et al. 1991, Craft and Richardson 1993, Walker and

Kadlec 1996, EPA 2000b, FDEP and SFWMD 2002). In addition some of

the WCA-2A stations which the Department considered “unimpacted”

for the purpose of deriving the 10 ppb criterion would now be redefined

as “impacted.”

By using 500 mg/kg as the definition of “impacted areas,” pristine

(unimpacted) areas will be identified as ‘impacted.’ This could allow an

inappropriate application of the “net improvement” moderating

provision, and as such, would be viewed under the CWA as an

inappropriate assignment of a subcategory of the Florida Class III

designated use.”

RECOMMENDATION: The use of greater than 600 mg/kg soil phosphorus

concentration is recommended as an indicator of impairment concurrent with

other indicators such as “adjacent to an inflow and the presence of cattail or

other biological indicators of imbalance.”

EPA July 7, 2003 Letter, at 2 [PR-AR-13] (emphasis added).

The program data that did exist in 2005 (during the EPA review) indicated that the

area of the Everglades with soil total phosphorus concentrations exceeding 500 mg/kg was

24.5 percent (plus/minus 6.4 percent) of the 2,063 square miles sampled. This data was

summarized in EPA’s recent REMAP Report which indicates that the impacted areas are

rapidly expanding throughout the Everglades. See REMAP Report at page 62, fig. 47 [DE

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The EPA also violated 40 C.F.R. § 131.10(b) by failing to consider the effects on the

downstream water user, the Miccosukee Tribe, since a significant portion of the impacted

areas lie directly above the Tribe’s lands. “In designating uses of a water body and the

appropriate criteria for those uses, the State shall take into consideration the water quality

standards of downstream waters and shall ensure that its water quality standards provide

for the attainment and maintenance of the water quality standards of downstream waters.”

40 C.F.R. § 131.10(b). The record does not even contain an overlay of the Tribe’s lands

in relation to the computer generated estimate of impacted areas within WCA 3. 

89

270]; cf. DEP Technical Regulatory Information in Support of the Rule attached to the

submission to EPA dated January 12, 2005 [PR-AR-18].

 Expressed in lay terms, continuing to discharge phosphorus into the impacted

areas at levels beyond what is protective will cause the impacted areas to expand into the

more pristine unimpacted areas. The unimpacted areas then become impacted areas

which then allow for further discharge above the protective standard under the Rule.

Because “no action” is required if the prescribed 10 ppb limits are not met, the process can

continue at least through 2016 in impacted areas. It may continue indefinitely “without

action” in the more pristine, unimpacted areas with hydropattern restoration (more water

flow) since that moderating provision is not time-barred under the Rule.

The cumulative effect fails to protect the designated use, violates anti-degradation

principles and negates the phosphorus criterion. The EPA’s approval of such a scheme is

arbitrary and violates Sections 4(b)-(e) of the CWA. It is in direct contravention to the

CWA’s requirement for EPA to institute progressively more stringent effluent discharge

guidelines so as to “tighten the noose for polluters.” Citizens Coal Council v. EPA, 66 F.3d

784, 789 (6th Cir. 2006).70

8. EPA’s Conclusion that Sections 1, 2 and 5(a-c) of the Phosphorus

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See discussion above explaining why subsections 5(a), (b)(3), and ( c) of the Rule

change the narrative criterion and negate the 10 ppb numeric criterion, because they deem

compliance with these water quality criterion to be achieved if the discharger simply meets

the moderating provision criteria.

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Rule are Not Changes in Water Quality Standards is Arbitrary and

Capricious

I have previously found that EPA acted arbitrary and capriciously by parsing its

review of the Phosphorus Rule. While the EPA reviewed certain provisions as changes

in water quality, it declined to review other provisions until ordered to do so. At this

juncture, I conclude that EPA further acted arbitrarily and capriciously by not considering

that the subsections (1), (2) and (5)(a-c), which directly interrelate with subsections 5(d)

and 6, likewise constitute changes in Florida’s water quality standards under the CWA.

The EPA acted arbitrarily in not reviewing the interrelationship between subsections 5(d)

and 6 with the following additional sections of the Phosphorus Rule: (I) subsection (1)(b)(2)

(establishing moderating provisions as an element of water quality standards); (ii)

subsection (2)(e)(2)(h) (providing that the Long-Term Plan accomplishes BAPRT); (iii)

subsection (2)(e)(l) (finding that the Rule must incorporate a flexible approach towards the

application of the numeric phosphorus criterion); (iv) subsection (3)(a), (b),(c), (d), (h), and

(I) (establishing definitions directly applicable to changes in water quality standards); and

(v) subsection 5(a), (b)(2) and (c)(which, when taken together, permit discharges as

moderating provisions). These provisions, when coupled with the changes in water quality

71

already recognized by EPA in subsections 5(d) and (6), alter the narrative criterion and the

designated use by creating subclasses of Class III and Outstanding Florida Waters.

Accordingly, under the CWA, the EPA had a duty to further evaluate these changes in

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Plaintiff Friends’ Second Amended Complaint incorrectly cites 16 U.S.C. § 1440(g)

as a basis for jurisdiction and references 16 U.S.C. § 460 in the request for relief under

Count III (DE 150).

73

EPA argues that even if I had jurisdiction, there is no basis for a finding that the ESA

was violated because EPA complied with the ESA during its review of the Phosphorus Rule

by consulting with the United States Fish and Wildlife Service (Service). EPA admits,

however, that it did not separately consult with the Service as to section (5)(d) of the

Phosphorus Rule (DE 274, p. 50, fn 9), because EPA determined that neither sections (1),

(2), nor (5)(a) through (5)(c) are changes to Florida’s water quality standards. DE 298,

p.13.

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accordance with CWA criteria.

VII. FRIENDS’ ENDANGERED SPECIES ACT CLAIM

Plaintiffs have challenged the EPA under the Endangered Species Act (ESA), 16

U.S.C. § 1540(g), in Count III of the complaint filed by Plaintiff Friends of the Everglades.72

EPA argues that this Court lacks jurisdiction because Plaintiffs have failed to comply with

the notice requirement of the ESA. The ESA provides that “[n]o action may be 73

commenced . . . [under this citizen suit section of the ESA] prior to sixty days after written

notice of the violation has been given to the Secretary and to any alleged violator of [this

section of the ESA].” 16 U.S.C. § 1540(g)(2)(A). Plaintiff Friends’ complaint is silent as to

any action taken to fulfill this statutory notice requirement and, as such, I dismiss this claim

as specifically plead under the ESA.

However, Plaintiffs claim that such notice was not required, as their action is

premised on the Administrative Procedures Act (APA), and that they are invoking the

provisions under the ESA not for jurisdiction but rather to demonstrate that EPA’s actions

were not in accordance with law. While this argument is interesting, it is nevertheless the

case that Count III of Plaintiffs’ Complaint provides no support for such formulation of the

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40 C.F.R. § 122.47 addresses “schedules of compliance” leading to compliance with

the CWA and regulations. The regulations state that NPDES permits issued to a “new

source” or “new discharger” shall contain a compliance schedule only when necessary to

allow a reasonable opportunity to attain compliance and only for three years. Nothing in

this record shows that the dischargers are “new sources” or “new dischargers.”

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claim and therefore dismissal is appropriate.

VIII. INVOCATION OF EQUITABLE POWERS

Federal law does not authorize anything like a twenty-two year compliance

schedule, which is what the 1994 EFA, the Amended EFA and the Phosphorus Rule now

allow with regard to achieving the narrative and numeric phosphorus criterion (the original

EFA took effect in 1994 but compliance is not contemplated until 2016). The actions 74

included in the 1994 EFA, coupled with its schedule of construction projects, were intended

to result in the attainment by December 31, 2006, of the level of water quality as

established by the narrative criterion and the later the default numeric phosphorus criterion.

Prior to its latest round of Determinations, the EPA had consistently found that the

attainment by 2006 was necessary to protect and maintain the designated uses of the

Everglades system. Both this District Court and the Eleventh Circuit Court of Appeals relied

on these assurances to affirm the reasons for extension. 

Any further delay in enforcement must necessarily raise heightened concerns, if not

skepticism, and result in careful judicial scrutiny. Such scrutiny appears warranted when

it was the EPA itself, just a few years previously, that concluded that the “reasonableness

and acceptability” of the initial 12 year schedule promulgated by the 1994 EFA

assumed that the December 31, 2006, deadline would be met, and that “there was an

enforceable framework that ‘ensured’ the numeric water quality criterion for phosphorus

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would be met by the December 31, 2006, deadline in the EFA or sooner if possible.” EPA

Sept. 15, 1999 Determination, at 9, n.15 (emphasis added) [EFA-AR-8]. I now conclude

that any further undue delay through endless, undirected rounds of remands to EPA to do

its duty, which it steadfastly has refused to do, is, alone, insufficient, and that it is

imperative that this Court exercise its equitable powers to avoid environmental injury to the

Everglades through the implementation of the Amended EFA and the Phosphorus Rule as

a result of the use of blanket exemptions.

Cases involving environmental injuries are particularly suited to injunctive relief.

Alaska Center for the Env’t v. Reilly, 796 F.Supp. 1374, 1377 (W.D. Wash. 1992)

(“Moreover, the Supreme Court has found that environmental injury is uniquely deserving

of injunctive relief: ‘Environmental injury, by its nature, can seldom be adequately remedied

by money damages and is often permanent or at least of long duration, i.e., irreparable.

If such injury is sufficiently likely, therefore, the balance of harms will usually favor the

issuance of an injunction to protect the environment.’”) (quoting Amoco Prod. Co. v.

Gambell, 480 U.S. 531, 545 (1987))

Under the law of this Circuit, injunctions fall into at least three categories: First,

“traditional” injunctions, used to remedy breaches of common law, statutory, or

constitutional rights, may be granted if the moving party shows “(1) it has a substantial

likelihood of success on the merits; (2) irreparable injury will be suffered unless the

injunction issues; (3) the threatened injury to the movant outweighs whatever damage the

proposed injunction may cause the opposing party; and (4) if issued, the injunction would

not be adverse to the public interest.” Klay v. United Healthgroup, Inc., 376 F.3d

1092,1097 (11th Cir. 2004) (further stating that for a permanent injunction, the plaintiff

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must show actual success on the merits instead of just a likelihood). Second, courts may

grant statutory injunctions where a statue specifies that a court may grant an injunction to

enforce the statute, and these injunctions may be granted based on the statute’s own

criteria plus a consideration of the traditional requirements for injunctions. Id. at 1098-99.

Third, courts may grant injunctions pursuant to the All Writs Act, 28 U.S.C. § 1651, which

states, “The Supreme Court and all courts established by Act of Congress may issue all

writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the

usages and principles of law.” Id. at 1099. The All Writs Act empowers courts to issue

injunctions to effectuate or protect their judgments, and to “prevent the frustration of orders

it has previously issued in its exercise of jurisdiction otherwise obtained.” Id. at 1100, n.11

(quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 171 (1977)). Under the law of this

Circuit, a writ issued under the All Writs Act may be directed at a non-party if that party is

“in a position to frustrate the implementation of a court order or the proper administration

of justice, and . . . even those who have not taken any affirmative action to hinder justice.”

Klay, 376 F.3d at 1100 (quoting N.Y. Tel. Co., 434 U.S. at 174). Furthermore, courts are

empowered to grant such a writ “whenever it is calculated in the court’s sound judgment

to achieve the ends of justice entrusted to it, and not only when it is necessary in the sense

that the court could not otherwise physically discharge its . . . duties.” Id. (internal citations

omitted) (quoting Adams v. United States, 317 U.S. 269, 273 (1942)). 

In a case brought under the APA, a district court has the authority to issue an

injunction to effect relief. Friends of the Wild Swan v. EPA, 74 Fed. Appx. 718, 721-722

(9th Cir. 2003) (“In waiving sovereign immunity, the APA specifically anticipates injunctive

relief without limiting it to specific sections. See 5 U.S.C. § 702. Hence, we reject

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Appellants’ argument that, under the APA, 5 U.S.C. § 706(2), courts are not authorized to

impose injunctive relief.”); 5 U.S.C. § 702 (“An action in a court of the United States

seeking relief other than money damages and stating a claim that an agency or an officer

or employee thereof acted or failed to act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be denied on the ground that is against

the United States or that the United States is an indispensable party.”) 

The Supreme Court has suggested that in rare circumstances, it is appropriate in

cases brought under the APA for courts to go beyond simply remanding a matter back to

the agency. See Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985) (stating that

“the proper course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation”). Based on this decision and a court’s equitable powers in

general, Circuit courts have upheld district court decisions to remand with specific

instructions to the agencies in cases brought under the APA. See Earth Island Inst. v.

Hogarth, 494 F.3d 757,770 (9th Cir. 2007) (stating “[w]e agree with the district court that

the government’s intransigence in following Congress’ mandate [on “dolphin-safe” labeling

of tuna] renders this case one of the rare circumstances where generic remand is not

appropriate” and vacating the Secretary’s finding of no adverse impact) (citing Florida

Power & Light,, 470 U.S. at 744); Sierra Club v. EPA, 346 F.3d 955, 960, 963 (9th Cir.

2003) (where EPA issued final rule finding that a particular area in California would have

attained national ambient air quality standards by the applicable date pursuant to the Clean

Air Act, if not for emissions emanating from outside the United States, the Ninth Circuit

held that this was an exceptional case in which it was proper to remand with instructions,

and remanded with instructions that EPA classify the particular area as a serious

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nonattainment area) (citing Florida Power & Light, 470 U.S. at 744); Friends of the Wild

Swan,, 74 Fed. Appx. at 721-722 (holding that court did not abuse its discretion in

imposing of a schedule for development of TMDLs pursuant to the CWA and limiting the

issuance of new permits, because it was supported by Montana’s history of delay and

EPA’s repeated failure to require the state to timely develop TMDLs, where court adopted

a schedule that the state legislature had initially adopted); Alaska Center for the Env’t v.

Browner, 20 F.3d 981, 986-87 (9th Cir. 1994) (upholding district court decision which

ordered EPA to submit report to Court on the adequacy of water quality monitoring in

Alaska and propose a schedule for establishment of TMDLs because the district court

acted with restraint in requiring only the steps necessary for development of TMDLs, in the

face of thirteen year delay, and because court left substance and manner of achieving

compliance to EPA); Abramowitz v. EPA, 832 F.2d 1071, 1072-73 (9th Cir. 1988) (“We

conclude that the EPA exceeded its authority under the Clean Air Act by approving the

control measures without determining whether those measures would demonstrate

attainment by the December 31, 1987 statutory deadline. Because we find no evidence

in the record to indicate that EPA intends to take final action before 1988, we remand this

case with the specific instruction that EPA disapprove the relevant portions of the [State

Implementation Plan] and face up to implementing the measures which are to be triggered

by failure to meet attainment requirements.”), superseded by statute, 1990 Amendments

to Clean Air Act; Nat’l Treasury Employees Union v. Horner, 854 F.2d 490, 500 (D.C. Cir.

1988) (stating “To be sure, the [Supreme] Court suggested that under ‘rare circumstances’

it might be appropriate for the court to conduct its own inquiry, reach its own conclusion,

and order more intrusive relief,” but declining to do so because neither party requested it,

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and remanding for the district court to establish an expedited schedule for further

rulemaking).

 In this Order, I have concluded that the EPA has acted arbitrarily and capriciously

in finding that portions of the Phosphorus Rule (as discussed above) are consistent with

the CWA, and that the Amended Everglades Forever Act (and certain provisions of the

Phosphorus Rule) do not constitute a change in water quality standards under the CWA.

As such, and as provided in the APA, I shall set aside the pertinent EPA’s Determinations

and remand to the EPA for further specific action consistent with Part IX of this Order. 

In addition, finding this case as one where a generic remand is not alone

appropriate, I enjoin the DEP from issuing permits pursuant to those sections of the

Phosphorus Rule that I have set aside, and enjoin the DEP from considering blanket

exemptions or variances under the current Phosphorus Rule pending compliance with the

CWA and its implementing regulations. I further enjoin the DEP from enforcing the “no

action” provision in subsection 4 of the Phosphorus Rule, and from utilizing subsection 4

and 5(b)(3) of the Phosphorus Rule to avoid the 10 ppb phosphorus numeric criterion as

otherwise established by the Phosphorus Rule. 

I grant this injunction pursuant to the court’s authority under the APA, which clearly

contemplates injunctive relief. See Friends of the Wild Swan, 74 Fed. Appx. at 721-722

(holding that district court did not abuse its discretion in limiting the issuance of new

permits, because it was supported by Montana’s history of delay and EPA’s repeated

failure to require the state to timely develop limits for specific pollutants). I additionally

grant this injunction based on my conclusion that the Plaintiffs have met the requirements

for a “traditional” injunction: based on my analysis in this Order: (1) Plaintiffs have shown

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Although the South Florida Water Management District (the “District”) is not a party

or an intervenor in this action, I will consider a motion, as may be necessary, by the

Plaintiffs to enjoin the District from issuing permits discharging into, or within, the

Everglades Protection Area, in a manner inconsistent with the provisions of this Order,

based on my powers under the All Writs Act. Because the District is empowered to grant

permits under certain circumstances, the District is “in a position to frustrate the

implementation of a court order or the proper administration of justice . . . .” Klay, 376 F.3d

at 1100. 

98

actual success on the merits, (2) irreparable injury to the Everglades and to Plaintiffs will

be suffered unless this injunction issues, (3) the threatened injury to the Plaintiffs and the

Everglades outweighs whatever damage this injunction may cause the opposing parties,

and (4) this injunction would not be adverse to the public interest. See Klay, 376 F.3d at

1097.

The Florida DEP is properly a subject of this injunction because, as an intervenor,

DEP is treated as if it were an original party to the litigation. Bayshore Ford Truck Sales,

Inc. v. Ford Motor Co. (In re Ford Motor Co.), 471 F.3d 1233, 1246 (11th Cir. 2006) (“Once

a court grants intervention, whether of right or by permission, the ‘intervenor is treated as

if [it] were an original party and has equal standing with the original parties.”) (quoting

Marcaida v. Rascoe, 569 F.2d 828, 831 (5th Cir. 1978)).75

IX. JUDGMENT AND ORDERS OF THE COURT

It is hereby ORDERED AND ADJUDGED:

1. Summary judgment is granted in favor of the Tribe and Friends on their Motion

for Summary Judgment on the EFA Amendment issues [DE 226], in the manner, and for

the reasons, set forth in this Order. The motion is granted to the extent that the Court finds

the Amendments to the Everglades Forever Act change Florida’s previous water quality

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standards and orders Defendant EPA to comply with its duty under the Clean Water Act

to approve or disapprove those changes in a manner consistent with the findings and

conclusions set forth in this Order.

2. The Cross-Motions for Summary Judgment filed by the EPA, DEP and New

Hope/Okeelanta [DE 231, 234 and 239] on the EFA Amendment issues are denied, in the

manner, and for the reasons, set forth in this Order.

3. Summary judgment is granted, in part, and denied in part, for the Tribe and

Friends as pertaining to the Motion for Summary Judgment on the Phosphorus Rule issues

[DE 255], in the manner, and for the reasons, set forth in this Order. In Paragraph 6 below,

I clarify which provisions of the Phosphorus Rule are valid, and which provisions are

invalid, under the CWA.

4. Summary judgment is granted, in part, and denied in part, for the EPA and the

DEP as pertaining to their Cross- Motions for Summary Judgment on the Phosphorus Rule

issues [DE 274 and 281], and denied as to New Hope/Okeelanta on its Motion for

Summary Judgment [DE 278], in the manner, and for the reasons, set forth in this Order.

5. The Tribe and Friends’ Motions to Complete and Supplement the Record [DE 253

and 270] are denied, subject to the two exceptions discussed in Part III (above) of this

Order. In accordance with footnote 5 above, the parties are instructed to file electronic

versions of the full March 2003 and October 2003 Long-Term Plans with the Clerk of the

Court within 30 days from the date of this Order. 

6. I affirm the EPA Determinations finding that subsections 4(a) and 4(d)(1) and

4(d)(2), except as stated in this paragraph, comply with, and meet the requirements of, the

Clean Water Act. For reasons stated in this Order I conclude that the portion of subsection

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4(d)(2)(c) (providing “[i]f these limits are not met, no action shall be required, provided that

the net improvement or hydropattern restoration provisions of subsection (6) below are

met”) does not meet the provisions of the Clean Water Act and is thereby declared invalid.

I further conclude, for reasons stated in this Order, that subsections 5(b)(3)(“Discharges

will comply with moderating provisions as provided in this rule”), 5(d) and 6 do not meet the

provisions of the Clean Water Act and are hereby declared invalid. The EPA

Determinations finding to the contrary are hereby set aside. 

7. On remand, the EPA shall require the State of Florida to meet the requirements

of the Clean Water Act, and its implementing regulations, in a manner consistent with this

Order, prior to DEP’s or EPA’s approval of any subsequent variance to the Phosphorus

Criterion as established by subsections 4(a), ( c), (d)(1) and (2) [with the exception of the

“no action” provision], and 5(a),(b)(1) or (2) of the Phosphorus Rule.

8. The EPA’s Determinations that Sections 1, 2 and 5(a-c) of the Phosphorus Rule

are not changes in water quality standards under the CWA are hereby set aside, for the

reasons set forth in this Order. Accordingly, I order the EPA on remand to comply with its

duty under the Clean Water Act to approve or disapprove those changes in a manner

consistent with the findings and conclusions set forth in this Order. 

9. The Defendant EPA’s motion for summary judgment [DE 274, p. 48-51] is

granted against Plaintiff Friends’ Endangered Species Act Claim, that claim as included

Friends’ Second Amended Complaint is dismissed.

10. The DEP is enjoined from granting any permits for discharges in, or within, the

Everglades Protection Area under subsections 5(b)(3), 5(d) and 6 of the Phosphorus Rule,

or the “no action” provision of subsection 4(d)(2)(c).

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11. This case is CLOSED.

ORDERED this 29th day of July, 2008.

____________________________

THE HONORABLE ALAN S. GOLD

UNITED STATES DISTRICT JUDGE

cc:

U.S. Magistrate Judge Chris M. McAliley

All counsel of record

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