i

United States Environmental Protection Agency 

Amended Determination 

Executive Summary 

On April 14, 2010, the United States District Court, Southern District of Florida, issued 

an order (the 2010 Order) directing specific steps that the United States Environmental 

Protection Agency (USEPA) and the Florida Department of Environmental Protection (FDEP) 

must take to correct deficiencies in USEPA’s December 2009 Determination and to carry out 

USEPA’s and FDEP’s mandatory duties under the Clean Water Act (CWA) to achieve water 

quality standards in the Everglades Protection Area. The 2010 Order directed USEPA to issue 

an Amended Determination no later than September 3, 2010. 

This document (the Amended Determination) addresses the requirements, as outlined on 

pages 44-47 of the 2010 Order, lays out the steps that the State must complete, and where 

applicable, specifically describes USEPA’s actions if the State fails to respond. USEPA’s 

objective in issuing this Amended Determination is to satisfy the Court’s directives in the 2010 

Order, consistent with the CWA and implementing regulations. This Amended Determination 

will ensure that the water quality entering the Everglades Protection Area from the Everglades 

Agricultural Area (EAA) and C-139 Basin achieve the narrative and numeric criteria, by meeting 

a scientifically sound Water Quality Based Effluent Limit (WQBEL) in permits, in the shortest 

time possible. Attachment A is an overview map showing the primary features described in this 

Amended Determination. 

 In Sections I. and II. of this Amended Determination, USEPA, strikes the language of its 

2009 Determination that the Court found invalid and directs the State to correct the deficiencies 

in the State’s Amended Everglades Forever Act (Amended EFA) and the Phosphorus Rule that 

have been invalidated by the 2010 Order. In the event the State fails to timely correct the 

deficiencies in the Amended EFA and Phosphorus Rule, USEPA will provide timely notice and 

promulgate revised standards pursuant to 33 U.S.C. § 1313(c). 

In Section III.A., USEPA is notifying FDEP that the narrative and numeric nutrient 

criteria in the State’s water quality standards are not being met for the Everglades Protection 

Area. Using the most recent information available, data indicate that while levels of total 

phosphorus (TP) at inflows to the Arthur R. Marshall Loxahatchee National Wildlife Refuge 

(Refuge), Water Conservation Area (WCA) 2, and WCA 3 have decreased since the 1980s, all 

parts of the Everglades Protection Area do not yet meet the nutrient criteria and further 

reductions of TP in the inflows to the Everglades must be achieved if further degradation is to be 

prevented. USEPA summarizes pertinent analyses of historical data from several sources to 

document this conclusion, including water quality data, soil phosphorus analyses, and vegetation 

changes. 

In addition, in Section III.B., this Amended Determination describes a two-part WQBEL 

as a critical component of an enforceable framework to ensure that the Stormwater Treatment 

Area (STA) discharges will not cause exceedances of the numeric criterion within the Everglades 

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Protection Area. The USEPA has derived a WQBEL to be implemented in permits for the STA 

discharges into the Everglades Protection Area. The WQBEL provides that: 

TP concentrations in the discharge may not exceed either: 

- 10 ppb as an annual geometric mean (GM) in more than two consecutive years; or 

- 18 ppb as an annual flow-weighted mean (FWM). 

Compliance with both parts of the WQBEL is necessary to assure that the STA discharges will 

not cause an exceedance of the long-term criterion of 10 ppb. USEPA calculated the WQBEL 

using a scientifically-based statistical approach in accordance with USEPA procedures. 

Expressing the WQBEL in this manner ensures the total phosphorus (TP) concentration and flow 

discharged from the STA to vary within acceptable limits while ensuring that the discharge will 

not cause an exceedance of the ambient water quality criterion of 10 ppb as a long-term GM in 

the Everglades marsh. Expressing one component of the WQBEL as a FWM concentration 

considers high flow loading events to the Everglades Protection Area and is more appropriate 

than relying only on a limit expressed as a GM concentration. Should FDEP propose an 

alternative approach to establishing a WQBEL, USEPA will evaluate its scientific rigor to ensure 

it appropriately implements the water quality criterion in accordance with the Clean Water Act 

(CWA) and its implementing regulations. 

In Section III.C., USEPA is providing clear, explicit, and comprehensive instructions to 

the State of Florida on the manner and method to obtain the WQBEL, including specific 

milestones. In developing the defined actions and timetables for achieving the WQBEL for each 

STA, USEPA conducted extensive modeling and analysis, working with well-recognized experts 

in wetland treatment systems that have extensive experience working on Everglades restoration. 

Based on this analysis, the total expected treatment area expansion in the Everglades Agricultural 

Area needed to meet the WQBEL is approximately 42,000 acres. 

The SFWMD recently announced the planned purchase of 8,900 acres of agricultural 

land in the Eastern Flow Path and 17,900 acres of citrus groves in the Western Flow Path1

 from 

U.S. Sugar Corporation. These purchases are to be finalized in October 2010. This pending land 

purchase, in addition to lands already in state ownership (the EAA-A1 and EAA-A2 

compartments), provides substantial acreage for attaining the WQBEL indentified in this 

Amended Determination. 

In developing the defined actions and timetables, USEPA assumed that no additional 

source controls will be undertaken. However, USEPA believes that, in addition to the remedies 

outlined in this Amended Determination, the State should pursue further source controls through 

improved on-farm best management practices (BMPs) and/or sub-basin treatment approaches as 

required by the Amended EFA. Reducing the concentration and load of TP entering the STAs 

 

1

 USEPA refers to three distinct flow paths for runoff water from the EAA and the C-139 Basin. These are the 

Eastern Flow Path that drains the urban and eastern basins of the EAA through STA 1E and STA 1W to the Refuge; 

the Central Flow Path that drains the central basins of the EAA through STA 2/Compartment B and STA 3/4 to 

WCA 2A and 3A; and the Western Flow Path that drains the C-139 Basin and the western part of the EAA through 

the STA 5, STA 6, and Compartment C complex into WCA 3A. 

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through improved source control could further optimize the performance of the STAs and could 

reduce the land area needed to treat the increased flows anticipated in the future as Everglades 

restoration proceeds. 

There may be possible alternative remedies to those proposed by USEPA based on 

various combinations of improved or expanded source or flow controls and different 

configurations of STAs and flow equalization basins (FEBs).2

 Given that further refined 

modeling may identify remedies that are capable of removing TP in order to achieve the 

WQBEL, USEPA believes it is appropriate to provide an opportunity to the South Florida Water 

Management District (SFWMD), as the permittee, to provide USEPA and FDEP technical input 

on remedies identified in the Amended Determination. Therefore, USEPA is offering SFWMD 

60 days to submit to USEPA and FDEP any alternative remedies that will achieve the WQBEL 

as soon or sooner than the remedies identified by USEPA. Any such proposal must be submitted 

to USEPA and FDEP by November 2, 2010. The proposal must be accompanied by a schedule 

and specific milestones to ensure timely implementation. USEPA will evaluate any alternatives 

presented and consider incorporating a revised approach in subsequent permitting, compliance, 

and/or enforcement proceedings. If USEPA finds the alternative(s) to be acceptable and 

consistent with the expectations outlined in this Amended Determination, USEPA expects to 

respond to any alternative remedy proposal provided by SFWMD, with a supplement to the 

Amended Determination, within 45 days of receipt. 

Attachment B summarizes for each flow path the number of additional acres of STA or 

FEBs that will provide the level of treatment needed to achieve the WQBEL. Attachment B also 

provides the date that the STAs are projected to be discharging at levels consistent with the 

WQBEL based on the specified remedy. 

The Amended Determination describes specific activities and dates for meeting these 

milestones along with critical assumptions and factors unique to each flow path. There are 

several key milestones that are generally applicable including: 

1. Completing land acquisition (if necessary); 

2. Completing detailed designs for STAs or FEBs; 

3. Acquiring all necessary federal and state permits; 

4. Completing construction; and 

5. Discharging consistent with the WQBEL. 

Attachment H and Section III.C.3.(b) identify a potential option for treating water in the 

Eastern Flow Path that involves building and operating a storage reservoir in the C51 basin. The 

 

2

 A flow-equalization basin (FEB) is a water storage area that can provide several benefits when used in 

combination with a downstream STA: provide some initial TP removal; capture peak flows during the wet season 

thereby reducing spikes in flow that can overload STAs and adversely affect performance; and allow water captured 

during the wet season to be metered out to the STA into the dry season to keep the STA from drying out. 

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State did not provide adequate assurance to USEPA of the success of this option prior to the 

release of this Amended Determination. The USEPA sees benefits with this potential option 

including: an increase in water flow to the Everglades Protection Area; better quality of water to 

the Refuge; fewer harmful fresh water diversions to the Lake Worth estuary; and meeting the 

WQBEL as early as 2017. The State is encouraged to submit adequate assurance of this option 

to the USEPA in its alternative remedies submittal on or before November 2, 2010. 

In Section IV of this document, USEPA directs FDEP to take the following actions 

related to monitoring TP in the Everglades Protection Area: 

1. Rectify deficiencies in the current monitoring network for measuring the achievement of 

the total phosphorus water quality criterion in the Everglades Protection Area; and 

2. Enhance monitoring and reporting requirements, ensuring that water quality, soil TP 

concentrations, and changes in vegetation are tracked and evaluated to fully assess the 

individual and cumulative impacts of discharges into the Everglades Protection Area, and 

to monitor progress toward achieving the ambient water quality criterion for TP. 

In Section V.A, USEPA directs FDEP to conform NPDES permits for all STAs 

consistent with specific instructions which USEPA provides regarding: 

1. Removing all reference to the non-conforming elements of the Long Term Plan, the 

moderating provisions and the extended compliance schedules; 

2. Incorporating the WQBEL, including added provisions for providing early warning of 

possible non-compliance with the WQBEL and reporting excess TP loads if the WQBEL 

is not met; 

3. Updating various items that must be included in each Annual Report, as well as, the 

pollution prevention and operational plans for each STA; and 

4. Requiring water quality, vegetation, and sediment transect monitoring at locations 

downstream of the discharge points and within the Everglades marsh to determine the 

extent of phosphorus intrusion resulting from the STA discharges and to determine if 

these discharges cause or contribute to violations of water quality standards. 

The 2010 Order directed USEPA to immediately initiate and carry out its authority to 

withdraw approval of the State program pertaining to issuance of any new NPDES permits for 

discharges into, or within, the Everglades Protection Area, or for any future modifications to 

existing NPDES permits (including through State of Florida Administrative Orders). However, 

as described in Section V.B., on July 29, 2010, USEPA filed a Rule 60(b) Motion for 

Modification of Injunction requesting that the Court amend the provision in the 2010 Order that 

requires USEPA to initiate and carry out partial withdrawal of Florida’s NPDES permitting 

authority and allow the substitution of a new injunctive provision that would apply after the 

existing permits have been conformed pursuant to the Court’s Order. On August 2, 2010, the 

Court issued an order scheduling oral argument on USEPA’s motion for October 7, 2010. 

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Because the Court has taken USEPA’s motion under consideration and USEPA will not know 

the Court’s disposition of its Rule 60(b) Motion prior to issuance of its Amended Determination, 

and because USEPA believes it lacks authority under the CWA to do a partial program 

withdrawal, it has not commenced initiation of withdrawal of FDEP’s NPDES permitting 

program for the Everglades Protection Area. Instead, it awaits a ruling by the Court on the 

pending Rule 60(b) motion. 

Section VI explains how all of the components of this Amended Determination provide 

an enforceable framework for ensuring compliance with the CWA and its applicable regulations. 

This includes: 

1. Requiring the State to amend its water quality standards to bring them into 

compliance with the CWA; 

2. Conforming all NPDES and EFA permits for discharges from the STAs into the 

Everglades Protection Area to include a WQBEL to meet water quality standards; 

3. Providing clear, specific, and comprehensive instructions to the State on actions to 

ensure compliance with the WQBEL; 

4. Exercising USEPA’s full CWA enforcement authorities to ensure compliance with 

the WQBELs; and 

5. Exercising USEPA’s CWA permitting oversight authority to ensure all future permits 

comply with the CWA and implementing regulations. 

Section VII of the document discusses the important relationship between this Amended 

Determination and actions being undertaken by the District Court in the case pending before the 

Honorable Federico A. Moreno, US v. SFMWD, Case No. 88-CV-1886-FAM (S.D. Fla.). 

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United States Environmental Protection Agency 

Amended Determination 

Table of Contents 

Executive Summary i 

Introduction 1 

Amended Determination 2 

I. Revisions to USEPA’s 2009 Determination 4 

II. Directions for Correcting Deficiencies to Florida’s 

Phosphorus Rule and the Amended Everglades Forever Act 6 

III. Manner and Method to Obtain Enforceable WQBEL 

Within Time Certain 7 

A. Non–Attainment of Narrative and Numeric 

Nutrient Criteria Throughout Everglades Protection Area 7 

B. WQBEL for the STAs That Implements the Numeric 

Water Quality Criterion of 10 ppb as a Long-Term Geometric Mean 10 

C. Source Controls and Stormwater Treatment Area 

Expansions to Meet WQBEL 14 

IV. Measure and Submit Annual Reports on Cumulative Impacts until 

Water Quality Standards Attained 41 

V. NPDES and EFA Permits 44 

VI. Enforceable Framework for Ensuring Compliance with the CWA 

and Applicable Regulations 48 

VII. Relationship to U.S. v. SFWMD, Case No. 88-CV-1886-FAM (S.D. FLA.) 49 

XIII. Conclusion 51 

Attachments 

Attachment A- Overview Map from 2010 South Florida Environmental Report 

(Overlain with Approximate A1 and A2 Locations) 

Attachment B- Summary of Remedies for Meeting WQBEL at STA Discharges 

into the Everglades Protection Area 

Attachment C- Milestones and Activities by Month/Year for Meeting WQBEL 

at Stormwater Treatment Areas 

Attachment D- USEPA’s 2009 Determination with Strikeout Text 

Attachment E- Revisions to Phosphorus Rule per Attachment 2 of 60(b) Motion

Attachment F- Revisions to Amended Everglades Forever Act per Attachment 1 

of 60(b) Motion 

Attachment G- WQBEL Technical Support Document 

Attachment H- Assumptions and Modeling Report 

Attachment I- Conformed STA NPDES and EFA Permits 

Attachment J- Rationale for Conformed STA NPDES and EFA Permits 

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Introduction

In its April 14, 2010 Order (2010 Order), the United States District Court, Southern 

District of Florida, directed USEPA and FDEP to carry out specific steps to meet their 

mandatory duties to achieve water quality standards in the Everglades Protection Area.3

 

Miccosukee Tribe of Indians of Florida; and Friends of the Everglades v. United States of 

America, et al., No. 04-21488-GOLD/MCALILEY (and consolidated cases). This document 

responds to the 2010 Order. 

In the 2008 Order, the Court granted partial summary judgment for the plaintiffs and 

partial summary judgment for the defendants. This 2008 Order decided consolidated cases 

brought against the USEPA by the Miccosukee Tribe of Indians of Florida (Tribe) and the 

Friends of the Everglades (FOE). Both the Tribe and FOE sought review of USEPA’s 

determination that the Everglades Forever Act Amendments (Amended EFA) were not new or 

revised water quality standards subject to review under section 303(c) of the Clean Water Act 

(CWA) and sought to have the Court order USEPA to disapprove those amendments. The Tribe 

and FOE also alleged that USEPA’s actions approving parts of the Phosphorus Rule (the 

Phosphorus Rule or TP Rule) as new or revised water quality standards were arbitrary and 

capricious. Lastly, the Tribe and FOE sought review of USEPA’s determination that other parts 

of the Phosphorus Rule were not new or revised water quality standards. 

In its 2008 Order, the Court determined the Amended EFA were new or revised water 

quality standards and ordered USEPA “to comply with its duty under the CWA to approve or 

disapprove those changes consistent with the findings and conclusions” set forth in the Court’s 

Order. Order at 99 (para. 1). The Court affirmed USEPA’s determinations approving the 10 

parts per billion (ppb) numeric criterion for phosphorus and the implementation methodology 

(the four-part test) as meeting the requirements of the CWA. Order at 99 (para. 6). The Court 

concluded that subsections (4)(d)(2)(c)4

, (5)(b)(3), 5(d), and 6 of the Phosphorus Rule do not 

meet the requirements of the CWA and declared those subsections invalid. The Court set aside 

USEPA’s determinations approving these subsections. Order at 100 (para. 6). The Court also 

set aside USEPA’s determinations that subsections (1), (2), and (5)(a)-(c) were not changes to 

water quality standards and ordered USEPA on remand “to comply with its duty under the CWA

to approve or disapprove those changes in a manner consistent with the findings and 

conclusions” of the Court. Order at 100 (para. 8). 

 

3

This matter has a long history and over the years USEPA has issued a number of determinations that provide 

additional background on the historical actions that have preceded this amended determination. Footnote 44 of the 

July 2008 Order summarizes four of USEPA’s recent determinations (January 24, 2005, July 27, 2005, May 8, 2006, 

and May 31, 2006). USEPA determinations from November 5, 2003 and September 15, 1999 contain additional 

background information. 

4

 Subsection (4)(d)(2)(c) is the fourth prong of the four-part test. USEPA raised this issue in the 2009 

Determination, noting that the Court’s focus appears to be the sentence in the paragraph that follows the four-part 

test provision: “If 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.” See 2009 Determination, page 10, referencing 

fn 1. 

 Throughout both the 2008 Order and 2010 Order, the Court refers to this provision as the “no-action” or “escape 

clause.” Order at 82, 85, and 97. Therefore, for purposes of this amended determination, reference to Subsection 

(4)(d)(2)(c) and Subsection (4)(d)(2) refer to the sentence quoted in this footnote and not the fourth prong of the 

four-part test. 

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 In response to the Court’s 2008 Order, USEPA issued its Determination on December 3, 

2009. USEPA’s 2009 Determination disapproved the following parts of the Amended EFA: 

subsection (3), including paragraphs (3)(b), (3)(c), (3)(d), and (3)(e), as well as subparagraphs 

(4)(e)(2), (4)(e)(3), and subsection (10), and other provisions relating to the Long Term Plan or 

modification to the compliance date. USEPA also disapproved the following parts of the 

Phosphorus Rule: subsections (1), (2), (5)(a-d), and (6). Although the Court in its 2010 Order 

found that USEPA’s disapprovals of those provisions were consistent with the requirements of 

the 2008 Order, several parts of USEPA’s 2009 Determination were stricken by the Court in its 

2010 Order and those are discussed further in Section I. 

Amended Determination 

In the 2010 Order, the Court directed USEPA to issue an Amended Determination no 

later than September 3, 2010. The 2010 Order contained specific directives to USEPA on steps 

that need to be taken and included in the Amended Determination. The remainder of this 

document addresses the requirements of the 2010 Order and lays out the steps that the State of 

Florida must complete and, where applicable, specifically describes USEPA’s actions if the State 

fails to respond accordingly. The Court’s 2010 Order required the following: 

1. “All provisions of the 2009 Determination which have been stricken by this Order shall be 

excluded from the Amended Determination.” [2010 Order, page 47, paragraph 8] 

2. “On remand, the [US]EPA shall issue an Amended Determination (‘Amended 

Determination’) not later than Friday, September 3, 2010 that meets the requirements of 

this paragraph and the paragraphs that follow. The Amended Determination shall 

specifically direct the State of Florida to correct the deficiencies in the Amended EFA and 

the Phosphorus Rule that have been invalidated in a manner consistent with Attachments B 

and C of this Order. The USEPA shall require the State of Florida to commence and 

complete rule-making for the Phosphorus Rule within 120 days from the date of the 

Amended Determination and shall require amendments to the Amended EFA to be enacted 

by July 1, 2011. In the event the State of Florida fails to timely act, the [US]EPA shall 

provide timely notice, and the [US]EPA Administrator ‘shall promulgate such standard[s]’ 

pursuant to 33 U.S.C. § 1313(c) (Emphasis in original).” [2010 Order, page 44, paragraph 1] 

3. “The [US]EPA Administrator, through the Amended Determination, shall notify the State 

of Florida that it is out-of-compliance with the narrative and nutrient standards for the 

Everglades Protection Area. The Amended Determination shall provide clear, specific and 

comprehensive instructions to the State of Florida on the manner and method to obtain 

enforceable [water quality-based effluent limits] WQBELs within a time certain, consistent 

with the Clean Water Act and its implementing regulations, the Summary Judgment Order 

and this Order. The Amended Determination shall specify without equivocation that 

compliance must occur in accordance with specific milestones to be established in the 

Amended Determination that provides an enforceable framework for ensuring 

compliance with the CWA and its applicable regulations. Furthermore, it shall require the 

State of Florida to measure on a yearly basis the cumulative impacts and effects of 

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phosphorus intrusion beyond the 10 ppb standard within the Everglades Protection Area until 

such time as full compliance with the 10 ppb standard is achieved. I underscore that the 

[US]EPA must establish specific milestones to ensure that the State of Florida does not 

continue to ignore, and improperly extend, the compliance deadline for meeting the 

phosphorus narrative and numeric criterion in the Everglades Protection Area (Emphasis in 

original).” [2010 Order, page 45, paragraph 2] 

4. “The [US]EPA, in its Amended Determination, shall direct the State of Florida to conform 

all NPDES permits for STAs 1, 2, 3, 4, 5 and 6 – along with the accompanying 

Administrative Orders and Everglades Forever Act permits listed in Attachment A to this 

Order – to the Clean Water Act, the Summary Judgment Order and this Order so as to 

eliminate all references to the non-conforming elements of the Long-Term Plan, the 

moderating provisions and the extended compliance schedule through 2016, and to require 

compliance with the phosphorus narrative and numeric criterion in a manner consistent with 

the Clean Water Act and the forthcoming Amended Determination. All such permits shall be 

conformed not later than sixty (60) days of the date of the Amended Determination and shall 

be promptly filed with this Court (Emphasis in original).” [2010 Order, page 45, paragraph 3] 

5. “On remand, the [US]EPA, in its Amended Determination, shall immediately initiate and 

carry out its authority under Section IX of the Memorandum of Understanding to withdraw 

approval of the State program pertaining to the issuance of any new NPDES permits for 

discharges into, or within, the Everglades Protection Area, or for any further modifications to 

existing NPDES permits (including through State of Florida Administrative Orders) – other 

than to carry out the requirements of Paragraph 3 [of the 2010 Order], above – until such 

time as the State of Florida is in full compliance with the Clean Water Act, its implementing 

regulations, the Summary Judgment Order, this Order, and the forthcoming Amended 

[US]EPA Determination.” [2010 Order, page 46, paragraph 4] 

6. “Other than to carry out the requirements of Paragraph 3 [of the 2010 Order], above, the 

FDEP is enjoined from issuing any new NPDES permits, or modifications to existing 

NPDES permits - through State of Florida Administrative Orders, Everglades Forever Act 

permits or otherwise - for STAs that discharge into, or within, the Everglades Protection 

Area until such time as the State of Florida is found by the [US]EPA and this Court to be in 

full compliance with the Clean Water Act, its implementing regulations, the Summary 

Judgment Order, and this Order. All new Administrative Orders and Everglades Forever Act 

permits issued under the laws of the State of Florida must conform to, and comply with, the 

Clean Water Act, its implementing regulations, the Summary Judgment Order, and this Order 

and the forthcoming Amended [US]EPA Determination (Emphasis in original.)” [2010 

Order, page 46, paragraph 5] 

The remainder of this Amended Determination responds to items 1 through 6 listed 

above. Item 1 is addressed in Section I. Item 2 is addressed in detail within Section II. Item 3 is 

covered in Sections III and IV. Items 4, 5, and 6 are addressed by Section V. Sections VI and 

VII describe in further detail USEPA’s expectations with regard to the implementation of the 

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enforceable framework and the relationship to the case pending before the Honorable Federico 

A. Moreno, US v. SFMWD, Case No. 88-CV-1886-FAM (S.D. Fla.) (Consent Decree Case).5 

This Amended Determination also describes an “enforceable framework” to which the 

Court referred in the 2008 and 2010 Orders. In addition to addressing the factors discussed in 

the 1999 Determination (which the Court references in both its 2008 and 2010 Orders), this 

Amended Determination describes additional measures necessary for an enforceable framework: 

the specific actions and timetables milestones that will need to be carried out to achieve the water 

quality based effluent limit (WQBEL), described in Section III.B., which is designed to meet the 

narrative and numeric water quality criteria for total phosphorus in the Everglades Protection 

Area. 

The objective of this Amended Determination is to satisfy the Court’s directives in the 

2010 Order, consistent with the CWA and implementing regulations, and to ensure that the water 

quality entering the Everglades Protection Area from the Everglades Agricultural Area (EAA) 

and C-139 Basin will achieve the narrative and numeric criteria, by meeting a scientifically 

sound WQBEL, in the shortest time possible. 

I. Revisions to USEPA’s 2009 Determination 

 

As part of this Amended Determination, USEPA is making specific revisions to its 2009 

Determination consistent with the Court’s 2010 Order. Pursuant to the Order, “[a]ll provisions 

of the 2009 Determination which have been stricken by this Order shall be excluded from the 

Amended Determination.” The following language (shown as stricken text) from the 2009 

Determination is removed and no longer valid. Pursuant to its authority under CWA 303(c)(3), 

USEPA has determined that various aspects of the revised standards in the Amended EFA and 

Phosphorus Rule are not consistent with the CWA and, therefore, such provisions are invalid. 

The 2009 Determination is revised accordingly. Attachment D is a copy of the 2009 

Determination which shows the stricken text. The remainder of the 2009 Determination remains 

in effect. 

Item 3 on page 2 of the December 3, 2009 Determination is revised as follows: 

3. Florida Department of Environmental Protection (FDEP ) is enjoined from issuing any 

permits for discharges in, or within, the Everglades Protection Area (EPA) under subsection 

(5)(b)(3), 5(d) and (6) of the Phosphorus Rule, and the “no action” provision of subsection 

(4)(d)(2)(c). USEPA understands that FDEP is complying with this provision of the Order. 

FDEP has not issued any permits utilizing these provisions of the Phosphorus Rule and has 

indicated they do not plan to. 

The Court’s rationale for striking the last two sentences of item 3 can be found on pages 22-24 

and 35 of the 2010 Order. The Court found that FDEP had issued permits utilizing invalidated 

provisions of the Phosphorus Rule. The Court found that FDEP included compliance schedules 

 

5

 The 2010 Order discussed the relationship between the Consent Decree Case and the consolidated cases filed by 

the Tribe and FOE before Judge Gold. 2010 Order at 29. This is discussed in more detail below in Section VII. 

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that were blanket variances issued without following the procedure for use attainability analysis 

(UAA) required for variances under the CWA and its implementing regulations. 

The second footnote on page 2 of the December 3, 2009 Determination is revised as follows: 

FDEP issued National Pollutant Discharge Elimination System (NPDES) permits for 

Stormwater Treatment Areas (STA) 2, 5, and 6 on September 4, 2007, while this case 

was pending. Those permits included water quality based effluent limits (“WQBELs”) , 

compliance schedules, and interim limits. The permits did not include moderating 

provisions or variances. This approach is consistent with the Court’s statements 

concerning “authorizing compliance schedules in individual permits on a case by case 

basis.” (Order at 45–46). The permits were not challenged by any parties and became 

effective at the end of the notice period. 

Several locations in the 2010 Order address the Court’s rationale for striking most of the second 

footnote on page 2. Pages 18-19 refer to USEPA’s failure to recognize the Administrative 

Orders (AOs) issued by the State in 2009 as inconsistent with the 2008 Order. Pages 22-23 hold 

that USEPA’s conclusion that State permits did not include moderating provisions or variances is 

incorrect. Since the Court found that the AOs included moderating provisions or variances, 

under the CWA, a UAA is required. Furthermore, as indicated on page 24, since “no use 

attainability analyses have been conducted,” the conclusion that the approach is consistent with 

the 2008 Order is no longer valid. 

The last paragraph on page 10 of the December 3, 2009 Determination is revised as follows: 

Lastly, the provisions that USEPA is disapproving today had the effect of being less 

protective than the numeric criterion. The provisions that USEPA is disapproving today 

and the provisions that the Court declared invalid are no longer in effect for CWA 

purposes. The USEPA approved criterion and implementing methodology remain in 

effect for CWA purposes. Because the criterion and implementing methodology are fully 

protective of the designated use, there is no need for the state of Florida or USEPA to 

take any further action pursuant to CWA section 303(c). 

The Court’s rationale for striking the last sentence of page 10 can be found on page 15 of the 

2010 Order. Page 15 describes USEPA’s failure to complete an analysis of the effect of 

Florida’s non-compliance as well as a lack of further specific direction to the State regarding 

necessary actions to ensure an enforceable framework. The stricken language of the 2009 

Determination is no longer valid and this Amended Determination is intended to address those 

specific requirements for the State and USEPA. The direction that USEPA is providing to the 

State in this section (section I) for amending its water quality standards is in accordance with the 

Court's order and pursuant to USEPA's authority under section 303(c) of the CWA. Under CWA 

section 303(c), revisions made by the State in response to this Amended Determination must be 

submitted to USEPA for review and approval. 

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II. Directions for Correcting Deficiencies in Florida's Phosphorus Rule and the Amended 

Everglades Forever Act 

In its 2010 Order, the Court specified the changes to be made by FDEP to the Phosphorus 

Rule [see Attachment C, April 2010 Order]. USEPA filed a Rule 60(b) Motion asking the Court 

to modify its injunction involving specific changes the Court had ordered. Pending the outcome 

of the Rule 60(b) process, Attachment E reflects the changes USEPA asked the Court to make. 

If the Court denies this portion of the 60(b) motion, USEPA will take the appropriate actions to 

modify Attachment E. As required by the Court (Order at 44 – 45) and based on USEPA’s 

authority under CWA section 303(c)(3), USEPA directs the FDEP to revise 62-302.540, Florida 

Administrative Code (F.A.C.) [Water Quality Standards for Phosphorus Within the Everglades 

Protection Area] to be consistent with Attachment E of this Amended Determination. FDEP is 

directed to complete its rulemaking by January 1, 2011. If FDEP has not finalized revisions to 

the Phosphorus Rule consistent with Attachment E by this date, USEPA will initiate rulemaking 

to promulgate the necessary revisions pursuant to CWA section 303(c) consistent with the 

Court’s 2010 Order (at 44 - 45). 

As required by the Court (Order at 44 – 45) and based on USEPA’s authority under CWA 

section 303(c)(3), USEPA also directs the State of Florida to correct deficiencies in the Amended 

EFA consistent with Attachment F of this Amended Determination. As noted above, USEPA 

filed a Rule 60(b) motion asking the Court to modify its injunction concerning the language it 

struck in the Amended EFA. Pending the outcome of the Rule 60(b) process, Attachment F 

reflects the changes USEPA asked the Court to make. If the Court denies this portion of the 

60(b) motion, USEPA will take the appropriate actions to modify Attachment F. The State of 

Florida is directed to enact amendments to the Amended EFA by July 1, 2011. If the State of 

Florida fails to act in a timely manner, USEPA will initiate rulemaking to promulgate revised 

standards pursuant to CWA section 303(c) to be consistent with the Court’s 2010 Order (at 44 - 

45). In its 2010 Order, the Court specified the changes to be made by the State of Florida to the 

Amended EFA [see Attachment B, April 2010 Order].6

 

The direction that USEPA is providing to the State in this section (section II) for 

amending its water quality standards is in accordance with the Court's order and pursuant to the 

USEPA's authority under section 303(c) of the CWA. Under CWA section 303(c), revisions 

made by the State in response to this Amended Determination must be submitted to USEPA for 

review and approval. 

 

6

 In the recent Rule 60(b) motion, USEPA, among other things, asked the Court to modify its injunction involving 

certain language the Court struck from the Amended EFA in subsection 4(a) which could have the unintended effect 

of limiting the use of the ad valorem taxes for optimizing, operating and maintaining the Everglades Construction 

Project (ECP) which includes the existing STAs. An important aspect of the enforceable mechanism that USEPA 

considered in its 1999 Determination was the identification of funding sources to pay for the restoration projects. 

The inability to use these taxes for the ECP could limit the ability of the State to fund projects as described in this 

Amended Determination. 

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III. Manner and Method to Obtain Enforceable WQBEL Within Time Certain 

A. Non–Attainment of Narrative and Numeric Nutrient Criteria Throughout Everglades 

Protection Area

 Pursuant to the Court’s Order (2010 Order, p 45), USEPA is notifying the FDEP that the 

narrative and numeric nutrient criteria7

 are not being met for the Everglades Protection Area.8 

Using the most recent report published by the South Florida Water Management District 

(SFWMD) and the FDEP, the 2010 South Florida Environmental Report (the 2010 SFER), the 

data indicate that levels of total phosphorus (TP) at inflows to the Refuge, WCA 2, and WCA 3 

have decreased since the 1980s. However, all parts of the Everglades Protection Area do not yet 

meet the nutrient criteria, and further reductions of TP in the inflows to the Everglades must be 

achieved if further degradation is to be prevented and the criteria are to be achieved. We have 

summarized below the pertinent analyses of historical data from several sources to document this 

conclusion. 

1. Water Quality 

 The 2010 SFER summarizes the status of attainment with the numeric 10 ppb TP 

criterion (expressed as a geometric mean), as well as the observed data and trends, in the 

Everglades Protection Area. Figures 3A-10 through 3A-12 of the 2010 SFER provide the annual 

geometric mean TP concentrations during the entire period of record from Water Year (WY) 

1978-2009 for the Everglades Protection Area inflow and interior sites. As demonstrated in 

those figures, the concentrations of TP at inflows to the Refuge and WCAs 2 and 3 have 

decreased; however, the inflow concentrations are still not at or below the applicable 10 ppb 

criterion (geometric mean). For WY2009, which includes the period May 1, 2008 through April 

30, 2009, page 3A-42 of the 2010 SFER indicates that approximately 30% of interior marsh sites 

within the Everglades Protection Area exhibited annual geometric mean TP concentrations of 10 

ppb or higher and approximately 16% of interior marsh sites exceeded the annual geometric 

mean TP concentration of 15 ppb, the annual maximum cap in the Phosphorus Rule’s four-part 

test for measuring achievement with the TP numeric criterion.

 9 Annual data for the phosphorusimpacted stations at the periphery of the Everglades Protection Area indicate concentrations 

above 15 ppb at all stations (2010 SFER Appendix 3A). Furthermore, WY2009 monitoring 

along transects downstream of Stormwater Treatment Areas (STA) 1E, 1W, and 2 confirm that at 

 

7

 See Section III.B.1. for the definitions of the narrative and numeric criteria. 8

 The Court’s Order directed USEPA to notify the State that it was out of compliance with the nutrient standards. 

The CWA does not consider a State to be “out of compliance” with the Act if water quality standards are not being 

attained. The CWA does require States to take actions to meet standards (e.g., include effluent limits in permits to 

meet standards) and to take actions when standards are not being attained (e.g., identify impaired waters and develop 

total maximum daily loads). To carry out the Court’s Order, USEPA is notifying the State that it is not attaining 

their nutrient standards in the Everglades Protection Area. 9

 The TP criterion rule for the Everglades Protection Area, approved by USEPA, includes a four-part assessment 

methodology (four-part test). The purpose of this test is to serve as an assessment method to determine whether the 

long-term (decades) 10 ppb geometric mean criterion is being achieved on a short-term (annual) basis. The intent of 

the four-part test is to place an upper limit on TP concentration in the Everglades marsh and limit the variability in 

TP concentration allowed by the compliance test to the variability observed at marsh reference sites. Evaluations of 

this test have concluded that attaining these four concentration requirements together assures that the long-term TP 

concentration does not exceed the 10 ppb geometric mean criterion (USEPA 2005, Walker 2005). 

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marsh locations nearest to the STA discharges, at all transects in the Refuge and WCA2A, 

surface water TP exceeds 15 ppb (2010 SFER at 5-37). 

From 2005 to 2009, the average annual TP concentrations being discharged from the 

urban basins, EAA, and the C-139 Basin into the Everglades Protection Area were 89.9 ppb for 

the Refuge, 31.0 ppb for WCA 2A, and 33.7 ppb for WCA 3A (2010 SFER executive summary 

p. 10). For 2009, the average annual TP concentrations discharged from the six STAs ranged 

from 13 ppb (STA 3/4) to 94 ppb (STA 6) (2010 SFER at 5-12). 

2. Attainment of the TP Water Quality Criterion 

 Pages 3A-55 and 56 of the 2010 SFER address whether the TP criterion has been 

achieved in the Everglades Protection Area. The areas with soil phosphorus concentrations less 

than 500 mg/kg, in each WCA, including the Refuge, passed all four parts of the criterion test 

and were therefore considered by USEPA to be in attainment with the 10 ppb TP criterion.10 

However, the areas with soil phosphorus concentrations greater than 500 mg/kg failed one or 

more parts of the four-part test and therefore exceeded the criterion. Specifically, the WY2009 

assessment of the four-part test confirms that surface water in the Refuge, WCA 3A and WCA 

2A, at stations near water inflow structures and overlaying areas with high soil TP, still does not 

meet the TP criterion, with annual geometric mean TP concentrations as high as 61 ppb (site X1) 

in the Refuge, 35 ppb (F5) in WCA 2A and 23 ppb (CA36) in WCA 3A (2010 SFER App 3A-6). 

3. Soil and Vegetation Changes 

Between 2004 and 2009, four publications by scientists from several agencies and 

universities independently concluded that soil TP concentrations have worsened in parts of the 

Everglades Protection Area. In USEPA’s 2007 Regional Environmental Monitoring and 

Assessment Program (R-EMAP) Status Report, USEPA summarized the soil conditions 

observed in 1995-96 and 2005. An excerpt from pages 62-63 of the 2007 report provides a 

succinct summary of the soil TP concentrations: 

Program data indicate that in 2005 the area of the Everglades with soil TP concentrations 

exceeding 500 mg/kg was 24.5 ± 6.4%, while 49.3 ± 7.1% of the 2063 square miles 

sampled exceeded 400 mg/kg (Figures 45 and 46). This contrasts with 16.3 ± 4.1% 

exceeding 500 mg/kg in 1995-96, and 33.7 ± 5.4% exceeding 400 mg/kg. Figure 47 

shows the most recent (2003-2005) soil TP data at 1270 locations from all of the 

programs sampling in the Everglades (R-EMAP, University of Florida – SFWMD, and 

Florida or federal permit transect monitoring). Depicted as mg/kg, WCA 3A north of 

Alligator Alley, northern WCA 2A, and the edges of the Refuge most proximate to canals 

have the highest soil phosphorus in the portion of the Everglades underlain by peat soil 

(Figure 47). There are also several locations throughout southern WCA 3A and the Park 

with soil TP in excess of 500 mg/kg. However, these locations have no corroborative 

 

10 The Court’s 2010 Order struck the definitions of unimpacted and impacted from the Phosphorus Rule. Because 

these definitions are used in the Rule for provisions that the Court did not strike, USEPA recommended in its July 

29, 2010 Rule 60(b) motion to not strike those definitions. (Rule 60(b) motion, pages 19-20) 

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second indicator of enrichment such as water TP exceeding 10 ppb, presence of cattail, or 

altered periphyton communities. 

Based on the information presented above, the percent of the Everglades with TP soil 

concentrations in excess of 500 mg/kg in 1995/1996 was approximately 16% (211,000 acres). 

By 2005, the high TP soil portion of the Everglades was approximately 24% (317,000 acres). In 

the 10 years between 1995 and 2005, TP-impacted areas increased by approximately 106,000 

acres, or 50%. 

As noted in the 2007 R-EMAP report, other scientific studies also documented increases 

in Everglades soil TP in recent years. Grunwald, et al. documented spatial expansion of elevated 

soil TP within WCA 2A from 1990 to 1998, concluding that, within WCA 2A, the mean soil TP 

concentration increased from 661 mg/kg to 860 mg/kg over this eight-year period.11 Bruland, et 

al. analyzed soil TP data within WCA 3 collected from 1992 and 2003 and concluded that the 

area with soil TP > 500 mg/kg increased from about 21% (124,000 acres) to 30% (177,000 acres) 

over these 11 years.12 Marchant, et al. documented an expansion of TP-enriched soils farther 

into the Refuge from 1991 to 2003.13 The expansion of the high TP soils could be due to several 

causes: TP in discharges from the Everglades Construction Projects (the STAs) into the 

Everglades Protection Area in excess of the 10 ppb criterion; release of TP already present in 

upstream Everglades soils; and chemical processes in the soil, such as oxidation.14 

 

 The expanses of cattails in WCA 2A, WCA 3A, and the Refuge are associated with the 

areas of high TP in soils in the northern parts of WCA 2A and 3A and around the edges of the 

Refuge. The conversion of open-water sloughs to dense stands of cattail results in the loss of the 

vegetation mosaic that is a defining characteristic of the Everglades. This conversion results in a 

loss of wading bird foraging habitat, and is an indicator of a nutrient-induced imbalance in flora 

and fauna. In the 2007 R-EMAP Report, USEPA found that “the expanse of cattail in the 

northern WCA 3 is evident, as it is in peripheral portions of the Refuge and WCA 2” and that 

“cattail was documented as being present, but not necessarily dominant, at 19% of the R-EMAP 

sites sampled in 2005.” In 2008, SFWMD scientists reported that the surface area of cattail in 

WCA 2A increased from 13,500 acres in 1991 to 23,000 acres in 1995, and then to 29,200 acres 

in 2003.15 While the rate of change between these periods slowed from 2,374 acres/year to 770 

acres/year, the vegetation in the Everglades continued to be altered over the 12-year period. 

 

11 Grunwald, S., K. R. Reddy, S. Newman and W. F. Debusk. 2004. Spatial variability, distribution and uncertainty 

assessment of soil phosphorus in a south Florida wetland. Environmetrics 15:811-825. 12 Bruland, Gregory L, Todd Z. Osborne, K. R. Reddy, Sabine Grunwald, Susan Newman and William F. DeBusk. 

2007. Recent changes in soil TP in the Everglades: Water Conservation Area 3. Environmental Monitoring and 

Assessment 129:379-395. 13 Marchant, B. P., S. Newman, R. Corstanje, K. R. Reddy, T. Z. Osborne, R. M. Lark. 2009. Spatial monitoring of 

a non-stationary soil property: phosphorus in a Florida water conservation area. European Journal of Soil Science

60(5):757-769. 

14 The effective treatment area of STAs has increased from about 18,000 acres in WY2003 to 43,000 acres in 

WY2009. (2004 SFER chapter 4 and 2010 SFER chapter 5). 

15 Rutchey, K, T. Schall and F. Sklar. 2008. Development of vegetation maps for assessing Everglades restoration 

progress. Wetlands 28(3):806-816. 

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 The information presented above demonstrates that excess phosphorus continues to be 

discharged into the Everglades Protection Area, and that significant areas of the Everglades 

Protection Area continue to not attain the narrative and numeric water quality criteria. 

B. WQBEL for the STAs That Implements the Numeric Water Quality Criterion of 10 ppb as a 

Long-term Geometric Mean

A critical component of an enforceable framework is a specific WQBEL to ensure that 

the STA discharges will not cause exceedances of the numeric criterion throughout the 

Everglades Protection Area. The WQBEL derived by USEPA to limit the STA discharges into 

the Everglades Protection Area has two components: 

TP concentrations in the discharge may not exceed either: 

- 10 ppb as an annual geometric mean (GM) in more than two consecutive years; or

- 18 ppb as an annual flow-weighted mean (FWM). 

Compliance with both parts of the WQBEL will assure that the STA discharges will not cause an 

exceedance of the long-term criterion of 10 ppb. The background and statistical approach for 

derivation of each WQBEL component is summarized below. USEPA’s WQBEL Technical 

Support Document (Attachment G) contains more detailed technical analysis and references. In 

a manner analogous to the two elements of the four-part test to assess attainment of the 

underlying water quality criterion cited in subsection 1 below, the WQBEL has: 1) a longer-term 

component (the 10 ppb GM not to be exceeded in more than two consecutive years) that assesses 

compliance with the water quality criterion well in advance of the criterion’s longer timeframe; 

and 2) a short-term (higher) annual limit (the 18 ppb annual FWM) that caps the maximum TP 

level that can be discharged in a given year. Should FDEP propose an alternative approach to 

establishing a WQBEL, USEPA will evaluate its scientific rigor to ensure it appropriately 

implements the water quality criterion in accordance with the Clean Water Act (CWA) and its 

implementing regulations. 

1. The TP Criterion for the Everglades Protection Area 

Because the WQBEL is derived from and must comply with the underlying water quality 

standard, it is important to understand the underlying TP criterion for the Everglades Protection 

Area. TP has been measured monthly since the 1970s at reference16 locations within the 

Everglades marsh in WCA 2A, 10 to 20 miles downstream of any water inflows. These data 

demonstrate that TP concentrations at these reference marsh locations naturally fluctuate both 

spatially and temporally above and below 10 ppb at any individual station. Although TP levels 

fluctuate, the long-term geometric mean remains at or below 10 ppb, with no indication of 

biological or ecological impact or imbalance. Technical staff developing the criterion used the 

geometric mean because it represents the central tendency of environmental data that are log-

 

16 A reference station is a location that identifies the background level of water quality in the Everglades. These 

sites exhibit the unaltered ecosystem structure and function that are typical of a location with no evidence of 

phosphorus impacts or imbalance. Reference sites are routinely used to develop water quality criteria. 

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normally distributed (i.e., a distribution of data that has a preponderance of low values and 

relatively few high values), consistent with the measured phosphorus levels in the Everglades. 

Relying on these data and analyses, in 2005 FDEP adopted and USEPA approved a water 

quality criterion expressed as a long-term TP geometric mean of 10 ppb for Class III waters in 

the Everglades Protection Area (see Florida Administrative Code (FAC) Rule 62-302.540). This 

10 ppb geometric mean numeric criterion applies in addition to the existing narrative criterion, 

which states, “[i]n no case shall nutrient concentrations of a body of water be altered so as to 

cause an imbalance in natural populations of aquatic flora or fauna.” (see FAC Rule 62-

302.530(48)(b)). The FDEP TP rule is also consistent with the State of Florida’s Everglades 

Forever Act (EFA) which similarly specifies, “[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 or fauna.” (see Florida Statutes 373.4592(4)(e)2).17 

To determine whether the long-term criterion is being achieved in the Everglades marsh, 

the TP criterion rule approved by the USEPA includes a four-part assessment methodology 

(four-part test). The four-part test includes a longer-term 10 ppb GM value (over five years) that 

applies across all marsh stations and a short-term (annual) 15 ppb GM value that is the maximum 

that can occur at any individual marsh station. Use of both values places an upper cap on TP 

concentration in the Everglades marsh, while accounting for the variability observed at all marsh 

reference sites. 

2. Description of Water Quality Based Effluent Limits (WQBEL) 

Where technology-based permit effluent limits are not adequate to attain the water quality 

criterion of a waterbody, the CWA and implementing regulations for the CWA’s National 

Pollutant Discharge Elimination System (NPDES) program require that discharge limits in 

NPDES permits be set at levels to meet water quality standards (see CWA section 301(b)(1)(C) 

and 40 CFR § 122.44(d)(1) and (5)). These limits are known as WQBELs. 

The NPDES regulations further require that WQBELs “derive from and comply with” all 

applicable water quality standards (see 40 CFR § 122.44(d)(1)(vii)(A)). USEPA recommends 

the use of statistical procedures that translate underlying water quality criteria into defensible, 

enforceable and protective WQBELs (USEPA 1996). Based on this underlying regulation and as 

a result of the translation, WQBELs may differ from the underlying water quality criterion. 

NPDES regulations require that a WQBEL be expressed as a daily maximum and a 

monthly average, unless impractical (see 40 CFR § 122.45(d)). However, as a technical matter, 

USEPA understands that expressing permit effluent limitations for nutrients like phosphorus 

over shorter terms (for example, as a daily maximum, weekly average, or monthly average) may 

 

17 The above summarizes the current situation but it is important to take note of the ongoing federal promulgation of 

numeric nutrient criteria for Class III waters in the State of Florida. Numeric nutrient criteria applicable to both 

inland and downstream estuarine and coastal waters of South Florida are expected to be proposed on November 14, 

2011, and subsequently finalized on August 15, 2012. The process of developing those numeric nutrient criteria is 

ongoing at this time. Once finalized and implemented, those criteria may result in different ambient concentrations 

upstream of the STAs. In all cases upstream values must be protective of the downstream Everglades criterion. 

Florida Wildlife Federation v. Jackson, Doc. #90, N.D. Fla. Case No. 08-cv-324-RH-WCS. 

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be impractical and supports expression as annual permit limits since the effects of nutrients are 

expressed far afield and over longer time periods. Recent USEPA guidance for Chesapeake Bay 

permitting recognized this issue (USEPA 2004). USEPA is following the same approach for the 

WQBEL in this situation.18 

3. Basis for Development and Use of a Flow-Weighted and Geometric Mean WQBEL 

The naturally nutrient-poor marshes of the Everglades are affected by both the 

concentration and the load of phosphorus. Once it is discharged into the Everglades, this mass or 

load of TP cycles within the marsh where it can continue to impact flora and fauna. The higher 

load received from higher flows may accumulate in the marsh and affect its long-term observed 

concentrations. 

In recognition of the importance of TP loading, all of the current phosphorus limits and 

water quality standards applied at water discharge structures in the Everglades, including the 

Park, express TP values as a FWM. In addition, the model used to size the STAs requires that 

TP data are expressed as a FWM. The FWM concentration is the average level of phosphorus in 

the water, weighted proportionally for the volume of flow during the time of sampling. 

The current STA permits require that phosphorus data are collected weekly at discharge 

structures, and that the associated water flow rates are measured continuously. The calculation 

of FWM TP levels from such data gives greater weight to samples taken during high, rather than 

low, flows. Thus, high flow events resulting in higher TP loads discharged into the Everglades 

are directly measured and accounted for. 

Establishing the annual cap as a FWM accounts for high flow TP loading events that can 

affect the cumulative delivery of phosphorus to the Everglades. Including a loading component 

provides additional protection and allows operational flexibility within the expected variability 

of the design parameters of the STA. In addition, an annual cap provides the means to evaluate 

performance and compliance on a more frequent basis than over a three-year period. 

Because the underlying TP water quality criterion and each component of the four-part 

assessment methodology associated with that criterion are all expressed as a geometric mean, 

and to be consistent, USEPA chose to express the first part of the WQBEL as an annual GM. 

The annual GM cannot be exceeded in more than two consecutive years. 

4. Method to Derive WQBEL 

The WQBEL for STA discharges that USEPA developed is derived from and complies 

with the TP criterion for the Everglades Protection Area. To derive the WQBEL from the TP 

criterion, consistent with USEPA regulations, USEPA has applied a statistical approach that 

translates the 10 ppb long-term geometric mean water quality criterion averaged across the 

marsh stations to a single point at the discharge of the STAs. Based on the NPDES regulations 

 

18 In the 2004 Guidance, USEPA concluded “that permit limits expressed as an annual limit are appropriate and that 

it is reasonable in this case to conclude that it is ‘impracticable’ to express permit effluent limitations as daily 

maximum, weekly average, or monthly average effluent limitations.” 

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cited above, a statistical approach that takes into account the variability of the pollutant 

concentration in the discharge is an appropriate method for deriving a WQBEL. USEPA relied 

on a statistical WQBEL approach for the Everglades STAs that used the long-term variability of 

TP and flows for these systems. (See Attachment G for a detailed analysis of the technical 

approach.) 

 

As discussed above, the USEPA approach takes into consideration that the STA 

treatment systems are controlled marsh environments that will discharge variable concentrations 

of TP over time based on the influent concentrations and load of TP, the types of vegetation, 

variable flows and the operational practices for each STA. The construction and operation of the 

existing STAs has provided USEPA with substantial data on how they function. When all six 

STAs are considered together, there are about 50 years of historical data on TP concentration and 

flow values. Established statistical methods confirm that a strong relationship exists between the 

TP long-term GMs and FWMs at STA discharges.19 

Inherent in the derivation of the WQBEL is an accounting for variability in the TP 

concentration at the discharge point. USEPA examined the year-to-year variability observed 

during STA operations over the past several years and compared this range of performance to an 

expected long-term performance that centers on the protective criterion. Because the STAs are 

not currently discharging at or below levels necessary to meet the underlying water quality 

criterion, USEPA statistically adjusted the historical STA TP data to simulate an STA 

discharging at the criterion - a long-term GM of 10 ppb. By adjusting the actual data to reflect 

levels that would meet the water quality criterion, USEPA can determine a range of acceptable 

TP concentrations at the STA discharge point that will meet the 10 ppb GM. Under this 

approach, a combination of the two values – 18 ppb FWM annual average and 10 ppb GM that 

cannot be exceeded in more than two consecutive years – are necessary to ensure that all relevant 

variability is accounted for and that the WQBEL will be stringent enough to meet the criteria as 

expressed in the 4-part test. Using this approach, the annual FWM TP concentration at the 

discharge point can be 18 ppb in any one year and still be protective of the marsh, as long as the 

annual GM of 10 ppb is also not exceeded in more than two consecutive years. This 18 ppb 

annual FWM discharge limit that must be met at each STA discharge every year represents a 

shorter term annual cap that helps to assure that the longer term average value would be met and 

is analogous to the four-part test 15 ppb GM value that must be met every year at each 

Everglades marsh station. As a result, USEPA is adopting the two-component WQBEL 

referenced above to be included in the NPDES and EFA permits for the STAs. 

5. Conclusion 

In this section (section III.B), USEPA is providing direction in this Amended 

Determination on the appropriate WQBEL for the STAs in accordance with the Court's order and 

in support of effective implementation by the State of its NPDES program authority under CWA 

section 402(b). USEPA has oversight authority over the state's program to help ensure its 

 

19 USEPA’s analysis shows a very strong correlation (correlation coefficient = 0.92) between the geometric mean 

and flow-weighted mean of TP at STA discharges: flow-weighted mean = 1.23 times the geometric mean. 

Therefore, for example, 10 ppb geometric mean = 12 ppb flow-weighted mean, and 15 ppb geometric mean = 18 

ppb flow-weighted mean. 

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effective implementation, including the authority to object to state permits and issue a federal 

permit where a state's proposed permit is outside the guidelines and requirements of the CWA. 

The WQBEL calculated using the statistical approach described above will allow the TP 

concentration discharged from the STA to vary within acceptable limits while ensuring that the 

discharges will not cause exceedances of the ambient water quality criterion of 10 ppb as a longterm GM in the Everglades marsh. Expressing one component of the WQBEL as a FWM 

concentration prevents annual high flow loading to the Everglades and is, therefore, more 

appropriate than relying solely on a limit expressed as a GM concentration. Using established 

statistical approaches, the average annual FWM TP concentration at the discharge point can be 

18 ppb in any one year and still be protective of the marsh, as long as the annual GM of 10 ppb is 

also not exceeded in more than two consecutive years. 

C. Source Controls and Stormwater Treatment Area (STA) Expansions to Meet WQBEL

In the following discussion, USEPA refers to three distinct flow paths for runoff water 

from the EAA and the C-139 basins to reach the Everglades Protection Area. These are the 

Eastern Flow Path that drains the urban and eastern basins of the EAA through STA 1E and STA 

1W to the Refuge; the Central Flow Path that drains the central basins of the EAA through STA 

2/Compartment B and STA 3/4 to WCA 2A and 3A; and the Western Flow Path that drains the 

western portion of the EAA and the C-139 Basin through the STA 5, STA 6, and Compartment 

C complex into WCA 3A, flowing onto and through the Federal Reservation of the Seminole 

Tribe of Florida and the Federal Reservation of the Miccosukee Tribe of Indians of Florida. 

As directed by the Court (2010 Order at 45), USEPA is providing clear, explicit, and 

comprehensive instructions to the State of Florida on the manner and method to obtain the 

WQBEL, including specific milestones. The total expansion required to meet the WQBEL is 

approximately 42,000 acres. The expansions identified by the USEPA in this Amended 

Determination assume that no additional source controls will be implemented that would reduce 

the inflow concentrations of TP to the current and anticipated expanded STAs. As we discuss 

below, USEPA expects the State to implement additional source controls consistent with its State 

law; however, as a conservative assumption, USEPA has designed the expansions based on 

existing inflow concentrations of TP. 

The expansions discussed below include both STAs and flow equalization basins (FEBs). 

An FEB is a water storage feature located upstream of an STA that captures peak flows during 

the wet season, reducing flow spikes that can damage vegetation in the STA, and provides some 

TP treatment. Depending on the design, the FEB may also hold water until the dry season, and 

provide a needed source of water for the STA. For these reasons, USEPA has incorporated an 

FEB into the remedy design for the Western Flow Path. USEPA assumes that the FEB will be 

managed for the purpose of optimizing STA performance. 

USEPA believes that further refined modeling may identify flow path-specific remedies 

that are equal to or better than the remedies presented in this Amended Determination in 

removing TP in a shorter or similar amount of time. USEPA believes it would be appropriate to 

provide an opportunity for the SFWMD as the permittee to provide USEPA technical input on 

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the remedies USEPA identifies in its Amended Determination. Therefore, USEPA is offering 

SFWMD the opportunity to submit within 60 days alternative remedies that could achieve 

WQBELs as soon or sooner than USEPA’s recommended remedies. If SFWMD provides a 

sufficient demonstration, including modeling results that demonstrate an alternative approach 

will provide equal or better assurance of meeting WQBELs in the specified time frames than the 

remedy presented in this Amended Determination, USEPA and FDEP could take that 

information into account in evaluating whether there would be an alternative remedy in lieu of 

the remedy in this Amended Determination. USEPA would expect that any new remedy would 

need to be accompanied by a schedule and specific milestones to ensure timely implementation. 

USEPA and FDEP will evaluate the alternative presented and consider incorporating the revised 

approach in subsequent permitting, compliance, and enforcement proceedings. If USEPA finds 

the alternative(s) to be acceptable and consistent with the expectations outlined in this Amended 

Determination, USEPA will respond within 45 days of receiving the alternative remedy proposal 

with a supplement to the Amended Determination. 

1. Source Control and Permitting Requirements

 Starting with the 1991 Settlement Agreement in the Consent Decree Case, phosphorus 

control in the Everglades has been based on a combination of best management practices (BMPs) 

coupled with STAs. Although the specific requirements have changed over the years, the 

combination of source reduction and treatment continues to be the cornerstone of Everglades 

water quality restoration. 

Subsection 4(f) of the 1994 EFA created a comprehensive permitting program for the 

farmers in the EAA and the C-139 Basin. The EFA requires farmers to obtain permits to develop 

BMPs to reduce the load of phosphorus leaving their farm basins by a specific amount, to 

implement a monitoring program to show the effectiveness of the BMP program and compliance 

with permits, and to continue to conduct research to identify water quality parameters that are not 

being significantly improved and identify further BMP strategies (see EFA Subsection 4(f)1 – 3, 

5 and 6).20 Under the permitting program, the farmers in the EAA basins have specific 

requirements to collectively reduce the phosphorus load in their discharges by a minimum of 

25%; the C-139 Basin farmers are prohibited from collectively exceeding an annual average load 

of 28.7 metric tons for three consecutive years based on a specific period of record (1978 to 

1988). Under this structure, as long as the farmers implemented BMPs, reduced the level of 

phosphorus leaving the basin as a whole by the specified amount, and met the taxing 

requirements of the EFA, no further actions were needed until December 31, 2006.21 The 

SFWMD issues and enforces these permits. 

 

20 Under EFA Subsection 4(f)(3)(b), a compliance schedule is not available to new land uses and new stormwater 

management systems. 

21 After Judge Davis found subsection 4(f) of the EFA to be a de facto suspension of water quality standards as it 

applied to the farm discharges, USEPA issued its 1999 Determination approving subsection 4(f) as a compliance 

schedule implementing the phosphorus criterion for the farmers. Miccosukee Tribe of Indians vs. United States, 

Case No 95-533-CIV-DAVIS (S.D.FL.), 9/14/08 Omnibus Order. In the 1999 Determination, USEPA approved the 

compliance schedule (which contained this BMP/STA-based approach), however, stating that “As noted above, the 

reasonableness and acceptability of the 12 year schedule also assumes that the December 31, 2006 deadline will be 

met.” 1999 Determination, FN 15. In sum, USEPA agreed to let the existing regulatory structure stand until 

December 31, 2006, but as of that date additional actions could be required and were mandated by the EFA.

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In the 2008 Court Order, citing USEPA’s 1999 Determination, the Court recognized the 

December 31, 2006 date as a deadline for complying with the TP criterion. If the water 

delivered to the Everglades was not achieving applicable water quality standards including the 

numeric criterion for TP by this date, the State was required to take additional steps to reduce the 

levels of TP. Under the EFA, this includes SFWMD reissuing the farm permits with specific 

limits in those permits. 

Specifically, Section 4(f) of the EFA provides: 

3. The Legislature finds that through the implementation of the Everglades BMPs 

Program and the implementation of the Everglades Construction Project, 

reasonable further progress will be made towards addressing water quality 

requirements of the EAA canals and the Everglades Protection Area. Permittees 

within the EAA and the C-139 Basin who are in full compliance with the 

conditions of permits under chapters 40E-61 and 40E-63, Florida Administrative 

Code, have made all payments required under the Everglades Program, and are in 

compliance with subparagraph (a)7., if applicable, shall not be required to 

implement additional water quality improvement measures, prior to December 31, 

2006, other than those required by subparagraph 2., with the following 

exceptions: 

a. Nothing in this subparagraph shall limit the existing authority of the 

department or the district to limit or regulate discharges that pose a significant 

danger to the public health and safety; and 

b. New land uses and new stormwater management facilities other than 

alterations to existing agricultural stormwater management systems for water 

quality improvements shall not be accorded the compliance established by this 

section. Permits may be required to implement improvements or alterations to 

existing agricultural water management systems. 

4. 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. As of that date, no permittee’s discharge shall cause 

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

Protection Area. 

The December 31, 2006 permitting requirements applied equally to the EAA farmers as well as 

to the C-139 basin farmers.22 See EFA 4(f)(6). 

Despite the regulatory programs in place, concentrations of TP in runoff from the S-5A 

and C-139 Basins are greater in the last five years than over the full period of record based on 

 

22 The C-139 Basin Rule has been amended and is scheduled to go before the SFWMD Board for adoption the week 

of September 6th, 2010. If adopted, it should become effective in November after public comment. 

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SFWMD data. The inflow concentration of TP has a significant effect on the outflow 

concentration of TP at the STA discharge point.23 USEPA modeling indicates that reductions of 

TP in the inflow to the STAs can reduce the acreage of STAs required to the meet the WQBEL 

(see Attachment H). As discussed above in Section III.A., portions of the Everglades Protection 

Area are not achieving either the numeric TP criterion or the narrative nutrient criterion. 

Although the existing BMP program and the current STAs are providing reductions in the level 

of phosphorus discharged to the Everglades Protection Area,24 additional steps are needed to 

ensure the water quality criteria are achieved. For the purposes of this Amended Determination, 

the additional steps include expansions of the STAs and/or use of FEBs. However, USEPA 

believes that the SFWMD could utilize their existing statutory mechanisms, knowledge of inflow 

concentrations to the STAs, and modeling results, to quantify how a given level of source control 

can improve the efficiency of the STAs, or possibly decrease the necessary acreage required in 

the remedies below. 

2. Expanded Stormwater Treatment: Actions and Milestones 

In responding to the Court’s order, USEPA evaluated the need for additional STAs or 

FEBs in each of the three flow paths in order to attain the WQBEL in discharges to the 

Everglades Protection Area. Based on modeling conducted by USEPA, the existing footprint of 

the STAs including the ongoing expansions in Compartment B and Compartment C is projected 

to discharge TP at the following annual FWM concentrations: 34 ppb from STA 1E and STA 

1W; 20 ppb from the STA 2 and Compartment B complex; 16 ppb from the STA3/4; and 18 ppb 

from the STA5, STA 6 and Compartment C complex (see Attachment H for assumptions and 

model results). Without additional STA acreage and/or source controls, none of these STAs can 

be expected to meet the WQBEL. USEPA’s modeling predicts a significant STA expansion or 

FEB is needed in all three flow paths. In order to meet water quality standards in the Everglades, 

the State must build, as expeditiously as practicable, these additional STAs and FEB. For each 

flow path, the specific actions and milestones, are summarized below along with the underlying 

assumptions. However, as noted above, the SFWMD can evaluate these options and present 

alternatives within 60 days of this Amended Determination. 

(a) Modeling Approach 

USEPA used an STA phosphorus removal performance model to predict the STA or FEB 

acreage required in order to meet the WQBEL at the STA’s point of discharge into the 

Everglades Protection Area. This model,25 developed in 2001, has undergone several 

enhancements and has been routinely used by SFWMD to evaluate STA expansions. A 

description of the model, model input and the assumptions used about the inflow water volume 

and TP concentrations to be treated are provided in Attachment H. 

In order to establish the size of the STAs or FEBs required to meet the WQBEL, the 

outflow TP concentration objective for the STAs must be determined along with an appropriate 

 

23 The outflow TP concentration is also influenced by the size of the STA and other factors. 24 Since 1994, STAs and BMPs have prevented over 3,000 metric tons of TP from entering the Everglades 

Protection Area. (2010 SFER) 

25 Dynamic Model for Stormwater Treatment Areas (DMSTA). See Attachment H for more information. 

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margin of safety. USEPA conducted modeling scenarios using three different outflow 

concentration end points, beginning at the criterion, to assess the sensitivity of the predicted STA 

expansion acres to the desired end point, and the certainty that the WQBEL will be met. The 

lower the desired end point (in other words, the more stringent the discharge modeling end 

point), the larger the projected STA expansion acreage, and the greater the assurance (margin of 

safety) that the STA will meet the WQBEL. USEPA assessed three end points including a 10 

ppb long-term geometric mean (the long-term criterion); a 9.3 ppb long-term geometric mean; 

and an 8.9 ppb long-term geometric mean.26

Traditional wastewater treatment systems are generally designed with a margin of safety 

to assure compliance with the conditions of environmental permits. In making this decision for 

the Everglades’ wetlands treatment systems, USEPA has considered several factors in specifying 

the margin of safety. The larger an Everglades wetland treatment system, the more difficult it is 

to manage the system for optimal treatment, especially maintaining the system as fully flooded 

throughout drier years. In addition, there is a cost to the public, as a larger margin of safety 

requires the purchase of additional land to serve as treatment wetlands and operation of these 

larger systems is more technically challenging. Given these considerations, USEPA concluded 

that it is appropriate to incorporate a limited margin of safety into the design target for the STAs, 

and therefore, selected a TP concentration of 9.3 ppb long-term geometric mean as the basis for 

the additional STA acreage needed to meet the WQBEL. 27 

The inflow concentration of TP assumed in the model is also critical for determining the 

predicted size of the STA or FEB needed to meet the WQBEL. The higher the inflow 

concentration assumed, the larger the acreage needed to meet the WQBEL. USEPA assessed the 

TP concentrations discharged from the EAA and C-139 basins over the period of record as well 

as over the last five years. The concentrations in the S-5A basin and C-139 basin are higher 

during the last five years than over the period of record (despite the phosphorus removal 

attributed to the State’s EAA and C-139 Basin regulatory programs). USEPA assumed in the 

modeling an inflow concentration equal to that observed over the last five years, and therefore, 

the remedies presented in this Amended Determination are not dependent upon further 

reductions in TP concentrations in the inflows to the STAs and/or FEBs. 

(b) General Considerations in Developing the Schedule 

In its 2010 Order, the Court instructed USEPA to “establish specific milestones to ensure 

the State of Florida does not continue to ignore, and improperly extend, the compliance deadline 

for meeting the phosphorus narrative and numeric criteria in the Everglades Protection Area.” 

Order at 45. It is clear the Court intends these milestones to reflect a schedule for compliance as 

soon as practicable. USEPA has assessed historical information and considered other factors to 

determine specific milestones for each of the three flow paths. The schedule by which the 

 

26 These concentrations, which are expressed as a long-term geometric mean, as the Everglades Protection Area 

marsh criterion is expressed, are equivalent to 12 ppb, 11.5 ppb and 11.0 ppb at the STA discharge when expressed 

as a FWM. The DMSTA model used to size the STAs requires that TP data are expressed as a FWM. 27 Lowering the design target from 9.3 ppb to 8.9 ppb results in additional 4000 acres of STA expansion. Given the 

potential for the STA to dry out, potentially inhibiting treatment performance, there is only an incremental gain in 

potential treatment performance at an additional cost of tens of millions of dollars. Therefore, USEPA has 

concluded that a margin of safety to this magnitude is unwarranted. 

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WQBEL can be met for each of the flow paths depends on many different and complicated 

factors such as: how fast the State can purchase the additional land needed for the expanded 

STA or FEB; how long it will take for certain land use changes to be adopted; how fast the State 

can design and build large STAs or FEBs; and how long will it take a new STA marsh to fully 

develop and process legacy phosphorus and begin to effectively treat the inflow water down to 

the levels required to meet the WQBEL.28 USEPA considered all of these factors as it developed 

the milestones for each flow path. A general discussion of the factors and information 

considered by USEPA for each of the major categories of actions is discussed below. 

Land Acquisition Schedule Analysis 

Under the scenarios presented here, the SFWMD will need to purchase additional parcels 

of land to meet the WQBEL at the STA discharges. The SFWMD Board recently voted to 

purchase 26,800 acres from the U.S. Sugar Corporation for restoration and water quality 

improvements to the Everglades. Approximately 8,900 acres of the proposed purchase is located 

in Palm Beach County in the northern part of the S5A basin, and 17,900 acres are in Hendry 

County within the C-139 annex. This purchase is to be finalized in October 2010. The amount 

of time required for the State to complete land acquisition is highly variable and has ranged from 

two to eight years. 

USEPA is allowing in this Amended Determination two months for land acquisition in 

the Western Flow Path where the pending U.S. Sugar Corporation purchase provides adequate 

land needed for treatment. In the Eastern Flow Path, the State will need to purchase land in 

addition to the pending U.S. Sugar Corporation purchase. USEPA is allowing three years for the 

State to complete the purchase of this additional land. For the purposes of this Amended 

Determination, completion of land acquisition is when the State has access to the property either 

by permission or by ownership. 

STA Design Schedule Analysis 

There are two general phases in the design of an STA: (1) the planning and conceptual 

design phase, and (2) the detailed design phase, including preparation of plans and specifications. 

Some, of the conceptual design for the STAs presented in this Amended Determination has been 

accomplished by the DMSTA modeling undertaken to produce this document. The detailed 

design, which is specific to the parcel of land on which the STA is built, requires access to the 

land for environmental assessments, testing, and data collection. The test results and other data 

provide the information needed for the production of detailed plans and specifications for land 

leveling, locations and sizing of levees, berms, canals and gates, and the hydraulics for how 

water will be moved into, through, and out of the STA (or FEB), including the size and locations 

of pumps. For access to the land, SFWMD must have acquired the land through purchase or, at 

least have been granted permission for access by the land owner before the detailed design phase 

can begin. 

 

28 Some soils in the STA expansion areas have previously been farmed and may contain high levels of phosphorus. 

When the expanded STAs are flooded, this legacy phosphorus will continue to be released to the water column until 

the system has stabilized. 

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Historical information provided by the SFWMD indicates STA design has ranged in the 

past from two to five years. USEPA is allowing in this Amended Determination two years for 

design, based on the assumption that the past experience of the SFWMD should greatly facilitate 

the design process. There is one exception in the Central Flow Path where a shorter design 

period is needed for an interim shallow storage feature on the EAA A1 site. Flow path by flow 

path details are provided below. 

Permitting Schedule Analysis 

While the design is ongoing, the SFWMD must obtain a number of different 

authorizations (permits) from local, state and federal agencies before it can initiate construction 

on a project. These include: an EFA permit from the State for construction of the project; a 

CWA Section 404 permit from the U.S. Army Corps of Engineers (USACE) for the discharge of 

dredged or fill material into waters of the US; a Section 10 permit under the Rivers and Harbors 

Act from the USACE if the project impacts a navigable water; a Clean Air Act permit from 

FDEP if the project includes a diesel pump station; a CWA Section 402 NPDES permit from 

FDEP to discharge to waters of the State; a consumptive water use permit from the State; and in 

some cases, permits from the local government for a land use change. If the project involves 

alterations to an USACE flood control levee, and a private party (not the USACE) is the 

applicant, then a 33 U.S.C. Section 408 analysis must be conducted. 

The FDEP will not generally accept an EFA permit application until the project design is 

30% complete, and will generally not issue the permit until the project design is 90% complete. 

The federal CWA Section 404 permit requires certification that state water quality standards will 

be met by the project and cannot be issued until the State EFA permit is issued (which provides 

the water quality certification).29 The federal CWA Section 404 permit also must comply with 

the federal requirements under the National Environmental Policy Act (NEPA), including an 

Environmental Impact Statement (EIS) where the permit is considered a “major action 

significantly affecting the quality of the environment.” In some cases, where the CWA Section 

404 permit is not considered to be a “major Federal action significantly affecting the quality of 

the human environment,” an environmental assessment may be conducted.30 In addition, where 

the project may affect a threatened or endangered species or its habitat (as do most of the 

projects in the Everglades), the federal Section 404 permit requires the USACE to initiate a 

Section 7 consultation with U.S. Fish and Wildlife Service under the Endangered Species Act. 

The federal Section 404 permit would likely be the lengthiest of the permit processes, and would 

govern how soon construction on the project could begin. Based on past experience, USEPA 

assumes that all environmental permitting necessary for construction to begin can be 

accomplished in 2.2 years, in parallel with the design process. USEPA also assumes that it will 

take two additional months following the end of design to acquire final permits for those projects 

that are dependent on 90% design completion. Additional considerations affecting specific flowpaths are provided below. 

 

29 In some cases the USACE will issue a permit with a contingency clause that no work may begin until the CWA 

Section 401 certification and/or NEPA documentation is complete. 

30 USEPA’s schedule is based on individual NEPA actions. It may be more efficient to combine all NEPA analyses 

into one EIS for all of the projects. 

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STA Construction Schedule Analysis 

There are two main phases in the construction of an STA: 1) the civil works which 

include land leveling, and construction of levees, canals, gates, and other structures; and 2) 

construction and installation of pumps and pump stations.31 The existing pumps and pump 

stations used in the Everglades construction projects are among the largest in the world, and were 

required to be specially designed and built for this purpose. The SFWMD now has prototypes 

for these pumps and experience in their procurement and installation. 

Historical information provided by the SFWMD indicates STA construction has ranged 

in the past from three to seven years. USEPA is allowing in this Amended Determination three 

years for construction based on the conclusion that the SFWMD now has considerable 

experience in the construction of STAs and that a number of experienced construction 

contractors exist.32 This timeline assumes that all expansions will need hydraulic improvements, 

most likely some system of pumps and an associated pump station. Therefore, from the end of 

the permitting phase, USEPA is allowing three years for the completion of construction. Flowpath by flow-path details are provided below. 

Flooding Schedule Analysis 

Approximately two years after construction is started, after the external berm and internal 

levees and gates are built, but before the pumps and the pump station are completed, an STA 

expansion is flooded with water.33 This allows the marsh vegetation to begin to establish, and 

the existing legacy TP loads in the soil within an STA, if any, to be reduced. USEPA is 

assuming that within one year (by the time construction is complete), the STA will begin 

demonstrating net improvement in water quality at the downstream point within the STA on a 

consistent basis as compared to the inflow concentration. It is at this point that the SFWMD may 

begin discharging to the Everglades Protection Area.34 It is assumed that flooding will begin two 

years after construction has started, with one exception in the Central Flow Path where some 

flooding has already occurred in the EAA A1 site. Flow-path by flow-path specific details are 

provided below. 

STA Performance Consistent with WQBEL 

Once discharge from the STA begins, the STA will continue to mature and lower 

discharge concentrations of TP will occur.35 It is USEPA’s judgment (based on the modeling 

 

31 For example, in STA 3/4 which is 16,500 acres (26 square miles), there are approximately 39 miles of levees and 

about 60 water control structures. 

32 The construction schedule does not make any assumptions concerning the length or intensity of the rainy season. 

Since this has the potential to delay construction some flexibility in the schedule may be needed to accommodate for 

rainfall conditions. 

33 Flooding depends on rainfall. Some flexibility in the schedule may be needed to accommodate rainfall conditions. 34 The required net improvement in water quality includes not only TP, but also other parameters, in particular 

mercury. In the past, net improvement in mercury took longer than net improvement in TP for one STA, thereby 

controlling the timeframe before which some of the STA could discharge. 

35 STAs are constructed wetlands that are designed and managed to maximize phosphorus removal. Each STA has 

flowways containing treatment cells that operate in series and are delineated by levees. These treatment cells 

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conducted for this Amended Determination) that given the proper sizing of an STA, the TP in the 

discharge from the STA will meet the WQBEL once the STA is properly stabilized and 

functioning at its design efficiency.36

However, a period of time will be needed for the STA to perform at its full treatment 

capacity. This period of time will vary depending on the conditions of the STA. USEPA 

expects that intensive management of the STA will be required for fine-tuning it to achieve its 

desired performance. This may include adjustments in the type and proportion of vegetation 

which could take several growing periods to accomplish.37 Hydrologic short circuiting within 

cells has also been an issue in past STA performance that could require time and effort to 

identify and correct.38 While it is possible under the most optimistic scenario for the STA to 

reach the WQBEL in a shorter amount of time, USEPA believes that a more realistic expectation 

is for an STA expansion to begin performing in a manner consistent with the WQBEL 2.5 years 

after the STA is flooded. 

 There are several scenarios in this Amended Determination where existing STAs will 

continue to be hydraulically overloaded with runoff water until a portion of the flows can be 

diverted to new STA or FEB expansions. Once the flows are diverted to the expansion, the 

existing STA will need to adjust to the new hydraulic condition. There are no data from other 

STAs for estimating the time it takes an existing STA to adjust to new, albeit preferable, 

hydraulic conditions. Therefore, the estimate of time for this adjustment is uncertain. USEPA 

estimates, using best professional judgment, that it will take 9-12 months after excess flows are 

diverted away for the STA to begin performing in a manner consistent with the WQBEL. 

Once an STA begins discharging consistent with the WQBEL, it is delivering water to 

the Everglades Protection Area that protects the designated use of the Everglades, and will not 

cause an imbalance in flora or fauna.39 Compliance with the WQBEL will be determined in 

accordance with the provisions of the conformed NPDES and EFA permits described in Section 

V. 

3. Flow Path by Flow Path: Actions and Milestones 

 As directed by the Court (2010 Order at 45), and consistent with its authority under CWA 

sections 104(a)(1), (2) and 104(b)(1) and (7), USEPA is providing clear, explicit, and 

comprehensive instructions to the State of Florida on the manner and method to obtain the 

 contain various types of vegetation such as submerged aquatic vegetation or emergent vegetation. The modeling 

used to size the STAs in the remedies for this AD assumes some cells are dominated by submerged aquatic 

vegetation and some cells are dominated by emergent aquatic vegetation.

36 USEPA recognizes that until such time the WQBEL has been achieved, elevated TP loads will continue to enter 

the Everglades. In order to assess the cumulative effects of these discharges, specific monitoring will be required to 

track the phosphorus discharged over time and its effects. See Section IV. 37 Vegetation management may include repeated herbicide treatments and seeding by helicopter or by hand to 

establish an STA with the most efficient mix of submerged or emergent aquatic vegetation to maximize TP 

assimilation. 

38 SFWMD should take extra care to provide proper leveling of the site during construction. 

39 Some soils in the Everglades contain high levels of phosphorus from historical discharges. Release of this 

phosphorus from the soil to the water column could delay the attainment of the TP criterion in portions of the 

Everglades beyond the time when the upstream STAs are discharging at the WQBEL. 

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WQBEL, including specific milestones for building STA expansions or FEBs. A summary of 

the remedies needed to attain the WQBEL in all STA discharges to the Everglades Protection 

Area is provided in Attachment B. Based on USEPA modeling, approximately 42,000 additional 

acres are needed for STA or FEB in order to meet the WQBEL. The remedies are discussed in 

detail in the following flow-path by flow-path discussion. 

(a) The Eastern Flow Path

The Eastern Flow Path drains runoff from the S5A basin and urban basins to the east, 

through STA 1E or STA 1W into the Refuge. STA 1E and STA 1W were initially designed to 

discharge at 50 ppb. Both are significantly undersized and not capable of treating the load of TP 

draining from these basins to levels needed to achieve the WQBEL. According to USEPA 

modeling conducted for this Amended Determination, assuming no reduction in the inflow 

concentrations, a 15,000-acre STA expansion is needed to attain the WQBEL. An additional 

estimated 1,500 acres will be needed for berms, levees, and canals for a total of 16,500 acres.40 

The SFWMD Board recently voted to purchase 8,900 acres from U.S. Sugar in the 

northern part of the S5A basin; this purchase is to be finalized in October 2010. Purchase of this 

land affords the SFWMD with the opportunity to either use this land in place as an STA, or 

exchange this for land adjacent to the existing STAs. With the U.S. Sugar Corporation purchase, 

an additional 7,600 acres will need to be purchased for the full STA expansion required.41 

The area to the east of STA 1E is highly urbanized and does not appear to offer much 

opportunity for expansion of the STA 1E footprint. As a result, USEPA is assuming that the 

expansion will occur adjacent to STA 1W. Since STA 1E will not be expanded, the inflow 

volume must be reduced to a volume that can be effectively treated to the WQBEL. Flow that 

cannot be treated by STA 1E will be diverted to the expanded STA 1W facility. Since both STA 

1E and STA 1W depend upon the STA 1W expansion in order to meet the WQBEL, neither can 

meet the WQBEL until the additional land is purchased, and the expansion is designed, built and 

operating. Under this scenario, STA 1E and STA 1W (with the expansion) will treat all existing 

flows to the Refuge, and no flows will be diverted away from the Refuge for treatment 

elsewhere. (See the STA 1E and STA 1W summary tables below for milestones and final 

WQBEL date.) 

 

 USEPA has modeled another potentially viable alternative for the eastern flow path for 

meeting the WQBEL in possibly a shorter period of time. This alternative includes an 8,000-

acre STA and a 1,700-acre storage reservoir (44 feet deep) in the C51 basin that is currently 

under consideration by the South Florida Water Management District (District) and a number of 

Lower East Coast utilities.42 Under this alternative, the C51 reservoir would store water and 

release flows to STA 1E and an expanded STA 1W at a rate and quality that could be treated to 

the WQBEL. 

 

40 See Attachment H, Table 3, ID 3. 

41 USEPA’s remedy presented in this Amended Determination assumes that the STA expansion will occur in the 

area adjacent to STA 1W. If the U.S. Sugar Corporation purchase is used in place as an STA, additional acres may 

be needed to account for the loss of efficiency in utilizing an STA not contiguous with STA 1W. 42 See Attachment H, Table 3, ID 6. 

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 It was not possible in the time available for this Amended Determination for the USEPA 

to have assurance that a number of uncertainties with the C51 reservoir will be addressed. The 

success of this alternative depends upon a public-private partnership that will require many 

specific details and arrangements to assure the project moves forward on schedule and in a 

manner that will assure the right volume and quality of flows are delivered to the STAs. The 

SFWMD has indicated potential benefits this alternative might provide such as: an increase in 

flows of water to the Everglades Protection Area; better quality of water to the Refuge; fewer 

harmful fresh water diversions to the Lake Worth estuary; and meeting the WQBEL as early as 

2017. The SFWMD may provide adequate assurance and sufficient information within the 60 

day window to document the likelihood of success consistent with the timetable in the Amended 

Determination. 

(i) STA 1E: Milestones and Schedule 

STA 1E was originally designed by the USACE to treat water from the S5A and urban 

basins to meet a long-term TP outflow concentration of 50 ppb, which was the original design 

target under the 1992 Consent Decree in the Consent Decree Case. The STA is, therefore, 

significantly undersized and cannot attain the WQBEL at this time. For the existing STA 1E to 

meet the WQBEL, approximately 47% of the current flow will have to be diverted to an 

expanded STA 1W. As a result, STA 1E will not begin to fully meet the WQBEL until flows 

can be diverted to STA 1W after the STA 1W expansion is complete. This diversion will not 

occur until November 30, 2018 (see discussion of the schedule for STA 1W below). 

STA 1E is also not currently performing to its full capacity due to operational issues 

involving failed or inadequate structures and elevation in some of the cells. Other culverts are 

likely to fail in the future, and need to be proactively repaired. Also, Cells 1 and 2 in STA 1E are 

temporarily operating at a decreased hydraulic capacity for an USACE pilot project (Periphyton 

Stormwater Treatment Area, or PSTA) which decreases the effective treatment area of the STA. 

Repairs, re-grading, decommissioning the pilot project, and establishment of the treatment 

system vegetation are all needed for STA 1E to ultimately meet the WQBEL. In the interim, 

before flow can be diverted to STA 1W, the repairs and modifications to STA 1E, when 

completed, will significantly improve the performance of the facility in reducing TP 

concentrations in the outflow water. For this reason, the repairs to STA 1E need to be made as 

soon as practicable so that the STA is delivering less TP to the Refuge, although full compliance 

with the WQBEL will not occur until the expanded STA 1W complex is operational and 

available to take flows away from STA 1E. 

 The USACE has either entered into contracts or is seeking approval to complete certain 

repairs to STA 1E. The anticipated schedule of repairs is built into the following milestones. 

The State of Florida will need to work closely with the USACE and the District so that the 

following actions are completed in the timeframes specified below to bring STA 1E to full 

operational capacity by the dates in the STA 1E summary table below. These activities will be 

completed in parallel with expansion activities in STA 1W. At the completion of the project, 

STA 1E will receive an annual average inflow volume of approximately 109,000 acre-ft per year. 

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STA 1E: Summary of Milestones and Schedule to Meet WQBEL 

Activity Milestone Date to Complete Activity 

Decommission USACE PSTA pilot project (after 

consultation with the Tribe) 

September 30, 201143

Complete repair/modification work: 

S-375 culvert repair 

Repair of 23 culvert joints and seals 

Re-grading of cells 5 and 7 

 Trash rakes and screens modifications 

March 31, 2015 

Improved performance of STA 1E (1 year after repairs 

and modifications are complete) 

April 1, 2016 

Flow modification to S-375 culvert (same date as STA 

1W expansion is flooded) 

November 30, 2017 

Divert Flow to 1W (construction at STA 1W is 

complete.) 

November 30, 2018 

STA 1E performance consistent with WQBEL (1 year 

after diversion – allows the STA to adjust to the new 

hydraulic condition) 

November 30, 2019 

The State will need to work with the USACE to decommission the periphyton pilot project in 

STA 1E by September 30, 2011. 

The USACE Jacksonville District initiated a pilot project in 2004 to test the efficacy of a 

periphyton-based treatment system (PSTA). The purpose of the PSTA was to utilize periphyton 

on a substrate to see if this would improve the phosphorus removal efficiency of the STA. To 

date, the Jacksonville District has collected approximately seven months of data over the six-year 

period of pilot project operation. The lack of sufficient water to establish periphyton and provide 

flow has been a primary reason for the limited amount of data collected. Also, the failure of the 

S-365A and B culverts contributed to limitations in data collection. The USACE is currently 

evaluating the data collected from the pilot project in 2010. Based on this analysis, the USACE 

anticipates decommissioning the pilot project in 2011 after consultation with the Tribe. Once 

started, decommissioning is expected to take approximately nine months.44

 

43 The USACE has indicated that this is the earliest possible date for decommissioning the PSTA pilot project. 

44 SFWMD has been conducting a PSTA pilot study in STA 3/4 since 2007. Results indicate that under controlled 

conditions the pilot project has discharged TP at 8-12 ppb FWM (SFER 2010 at 5-150). 

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The State will need to work closely with the USACE so that the repairs and modifications to 

STA 1E listed below are completed by March 31, 2015.

 

Complete S-375 culvert repair: Culvert S-375 is a multi-bay gated culvert separating two 

distribution cells. Water intrusion through the culvert seals and joints causes erosion at the base 

of the culvert leading to the failure of the structure. The structure can no longer pass the design 

flows from one cell to another, and repairs are needed to allow the proper flow of water through 

the STA. 

Complete repair of culvert joints and seals: STA 1E has 44 internal 8 ft-by-8 ft precast 

segmented concrete box culverts that allow the flow of water to be distributed across treatment 

cells and into the perimeter canal. The SFWMD performed a survey identifying 23 culverts that 

have degraded joints and seals which may cause failure of the culverts in the future (similar to 

the problem at S-375.) These conditions must be corrected to prevent culvert failure in the 

future. 

Complete re-grading of cells 5 and 7: SFWMD commissioned a topographic survey of STA-1E 

in 2005. This survey indicated that Cells 5 and 7 (19% of the treatment area) are, on average, 

0.73 feet and 1.19 feet too deep, respectively, in relation to the design elevation. The SFWMD 

has concluded that the increased depth prevents the establishment of emergent vegetation 

growth, and re-grading of Cells 5 and 7 is necessary to correct the elevation. The re-grading of 

the cells will require a significant volume of fill to bring the bottom elevation of the cells up to 

the appropriate grade. USEPA assumes that, to the extent practicable, the fill material used for 

re-grading will be relatively low in TP legacy concentrations. The USACE and the State 

(SFWMD) should take all steps possible to ensure the top of the fill material in Cells 5 and 7 has 

low legacy TP concentrations.45 

Trash rakes and screens modifications: During severe tropical events, the amount of floating 

vegetation at the pump stations exceeds the trash rake system’s capacity. While the equipment 

installed by the USACE matches the plans and specifications, the USACE agrees with the 

SFWMD that the current system will not perform at an acceptable level during a storm event, 

and the USACE is currently planning to undertake modifications to the trash and rake system. 

The State will need to manage STA 1E so that improved performance of the STA will occur by 

April 1, 2016.

After the repairs and modifications to STA 1E are complete, it is assumed that within 1 

year, the discharge from STA 1E will show reductions in the amount of TP released to the 

Everglades Protection Area. While the STA will not be able to meet the WQBEL until 

additional flows can be diverted to STA 1W, the improvements in TP loading will benefit the 

Everglades Protection Area. 

 

45 The USACE indicated to the USEPA that it is assessing the USACE’s responsibility to fund and implement the 

re-grading of Cells 5 and 7. If the USACE determines it will not complete the re-grading, the State, working with 

the SFWMD, will need to take the measures necessary to meet the WQBEL at STA 1E by November 30, 2019. 

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The State (SFWMD) will need to modify S-375 to increase its flow capacity to the design flow 

of the pump station by November 30, 2017. 

The design capacity of the S-375 culvert is not large enough to move adequate flows 

from STA 1E to STA 1W to allow STA 1E to achieve the WQBEL. SFWMD will either need to 

enlarge S-375 or build a parallel culvert to properly balance flows across STA 1E and 1W. This 

modification will also require a 33 U.S.C. Section 408 review since C-51 was originally 

designed as a federal flood control project and this levee is part of that system. However, given 

the other actions planned for this STA, this review will not add to the timeframe for achieving 

the WQBEL. The modification will need to be accomplished by the date at which flooding 

begins in expanded STA 1W. 

The State will need to begin diverting approximately 47% of the flow currently going to STA 

1E to the expanded STA 1W complex by November 30, 2018.

As discussed above, in order for STA 1E to meet the WQBEL, the flow to this STA must 

be reduced. The flows diverted from STA 1E will be treated in the expanded STA 1W; 

therefore, the expansion of STA 1W must be completed and ready to accept flows before flows 

can be diverted away from STA 1E. Based on USEPA’s DMSTA modeling, flows in excess of 

an annual average inflow volume of 109,000 acre-ft per year must be diverted away from STA 

1E for it to perform consistent with WQBEL. 

The State will need to provide discharge water from STA 1E that is consistent with the WQBEL 

by November 30, 2019.

STA 1E will continue to be hydraulically over-loaded while the STA 1W expansion is 

under design and construction. Once flows are diverted away from STA 1E, it will take the STA 

some period of time to adjust to the new hydraulic conditions. There are no data from other 

STAs for estimating the time it takes an existing STA to adjust to new, albeit preferable, 

hydraulic conditions. Therefore, the estimate of time for this adjustment is uncertain. USEPA is 

estimating, using best professional judgment, that it will take up to 12 months after excess flows 

are diverted away for STA 1E to begin performing in a manner consistent with the WQBEL. At 

this point, the STA is to be delivering water to the Everglades Protection Area that protects the 

designated use of the Everglades, and does not lead to an imbalance in flora or fauna. 

Compliance with the WQBEL will be assessed in accordance with the terms of the conformed 

NPDES and EFA permit described in Section V. 

(ii) Expanded STA 1W: Milestones and Schedule 

STA 1W is significantly undersized to treat the current volume of inflow water to meet 

the WQBEL. In addition, approximately 47% of the current flow going to STA 1E must be 

diverted to an expanded STA 1W in order for STA 1E to meet the WQBEL. According to 

modeling conducted by USEPA for this Amended Determination, a 15,000-acre STA expansion 

of the STA 1W facility is needed for both STA 1E and STA 1W to meet the WQBEL. An 

additional 1,500 acres will be needed for levees, berms and canals for a total of 16,500 acres.46 

 

46 See Attachment H, Table 3, ID 3. 

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At the completion of the project, the expanded STA 1W complex will effectively treat to the 

WQBEL an annual average inflow volume of 321,000 acre-ft per year. 

The State of Florida will need to complete the following actions in the timeframes 

specified below to bring STA 1W to full operation to attain the WQBEL. The requirements are 

summarized in the table below, and are then discussed in greater detail. 

STA 1W Expansion - Summary of Schedule to meet WQBEL

Activity Milestone Date to Complete Activity

Complete land acquisition for 15,000 acre STA expansion (3 

years)47

September 30, 2013 

Complete expansion design (2 years) September 30, 2015 

Acquire all necessary environmental permits needed to begin 

construction of the STA 1W expansion (2 months after the end of 

design) 

November 30, 2015 

STA 1W expansion flooding starts (2 years after construction starts) November 30, 2017 

Complete construction (3 years after permitting); flows from STA 

1E can now be diverted to STA 1W 

November 30, 2018 

STA performance consistent with WQBEL (2.5 years after flooding) May 31, 2020 

The State will need to complete its purchase (including any land exchange) needed to build a 

16,500-acre STA expansion in the eastern flow path by September 30, 2013. 

As discussed above, the State announced its intention to purchase 8,900 acres from U.S. 

Sugar in the northern part of the S5A basin; this purchase is to be finalized in October 2010. The 

8,900 acre tract is about 15 miles north of STA 1W, by canal. The State will either use this land 

in place as an STA, or exchange this for land adjacent to, or in close proximity to, STA 1W.48 

The SFWMD is evaluating whether a possible exchange could provide land adjacent to the 

Refuge that is suitable for an STA. 

Assuming current flows and loading, this purchase provides approximately 54% of the 

land needed for the expanded STA. An additional 7,600 acres would need to be purchased to 

 

47 Approximately 8,900 acres is currently under contract to be purchased by the SFWMD in the northern S5A Basin 

from the U.S. Sugar Corporation. 

48 USEPA’s modeling is based on an assumption that the expanded STA will be built adjacent to the current STA 

1W footprint. If a decision is made to use the 8,900 acre parcel purchased from U.S. Sugar Corporation in its 

current location, additional modeling will need to be conducted to determine a revised STA expansion acreage 

needed to meet the WQBEL. It is unclear whether use of the northern parcel in place will be as efficient as an 

expansion adjacent to STA 1W. Additional acreage, beyond 7,600 acres, may be needed under this scenario. 

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meet the STA expansion needs. If there are no ready and willing sellers in this area, then land 

acquisition may require the SFWMD to use its full authorities to acquire the land for the needed 

expansion. Past experience suggests that this will complicate the land acquisition process, and 

lengthen the amount of time to complete the purchase. Given this uncertainty, USEPA’s 

schedule provides the State three years to complete the process. 

The State will need to complete the detailed design including all plans and specifications for the 

15,000-acre STA 1W expansion by September 30, 2015.

The detailed design, which is specific to the parcel of land on which the STA is built, 

requires access to the land for environmental assessments, testing, and data collection. The test 

results and other data provide the information needed for the production of detailed plans and 

specifications for land leveling, locations and sizing of levees, berms, canals and gates, and the 

hydraulics for how water will be moved into, through, and out of the STAs, including the size 

and locations of pumps. 

The State will need to acquire all necessary environmental permits needed to begin the STA 1W 

expansion construction by November 30, 2015.

See Section III.C.2.(b) above for discussion of the environmental permitting process. 

The State will need to have the STA 1W expansion site ready for flooding by November 30, 

2017.

Approximately two years after construction is started, after the external berm and internal 

levees and gates are built, but before the pumps and the pump station are completed, the STA 

1W expansion will be flooded internally with water. This allows the marsh vegetation to begin 

to establish, and the existing legacy TP loads in the soil within an STA, if any, to be reduced. 

USEPA is assuming that approximately one year after flooding, the STA will begin 

demonstrating net improvement in water quality at the downstream point within the STA on a 

consistent basis as compared to the inflow concentration. Once net improvement has occurred 

and the pumps and pump stations are completed, the State may begin discharging from the STA 

to the Everglades Protection Area. 

The State will need to complete construction of the STA 1W expansion by November 30, 2018.

Construction includes two main phases: 1) the civil works which include land leveling, 

and construction of levees, canals, gates, and other structures; and 2) construction and 

installation of pumps and pump stations. Therefore, from the end of the permitting phase, 

USEPA is allowing three years for the completion of construction, including hydraulic 

improvements. 

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The State will need to discharge water from the expanded STA 1W facility (including the 

current STA 1W facility plus the 15,000-acre expansion) that is consistent with the WQBEL by 

May 31, 2020. 

See Section III.C.2.(b) – STA Performance Consistent with WQBEL (above) for a 

discussion of factors affecting the date by which the STA can meet the WQBEL. The expanded 

STA 1W facility will be built in an area of existing agricultural production where significant 

legacy loads of TP may be present in the soil. The new treatment marsh will need to overcome 

the legacy loads of soil TP before TP removal from the inflow water will begin to occur. The 

USEPA estimates that it will take the expanded STA facility up to 2.5 years after flooding to 

begin to perform consistent with the WQBEL. At this point, the STA is to be delivering water to 

the Everglades Protection Area that protects the designated use of the Everglades, and does not 

lead to an imbalance in flora or fauna. Compliance with the WQBEL will be assessed in 

accordance with the terms of the conformed NPDES and EFA permit described in Section V. 

(b) The Central Flow Path

The central flow path drains runoff from the S-2, S-6, and S-7 basins through STA 2 and 

STA 3/4 into WCA 2A and 3A. A project is currently well underway to expand the Central 

Flow Path by 6,800 acres in the Compartment B North Build-Out (Comp B NBO) and 

Compartment B South Build-Out (Comp B SBO). Modeling conducted by USEPA for this 

Amended Determination indicates that, even with the Compartment B expansions, the Central 

Flow Path will need an additional 15,600-acre STA expansion to meet the WQBEL. An 

additional 1,560 acres will be needed for berms, levees and canals for a total additional acreage 

of 17,160 acres.49 

Within the Central Flow Path, there are two large parcels of land currently owned by the 

State that are designated under the Comprehensive Everglades Restoration Program (CERP) as 

water storage sites. These are the EAA A1 and the EAA A2 compartments. The SFWMD 

estimates the A1 site to have approximately 15,000 acres of potential STA effective treatment 

area, and the A2 site to have approximately 14,000 acres of potential STA effective treatment 

area. The A1 site is contiguous with STA 3/4 and the Comp B NBO and, as such, is strategically 

located for an expansion of the current STAs. 

The A1 site alone is not large enough to fulfill the complete needs of the Central Flow 

Path for expanded STA acreage. A portion of the 14,000-acre A2 site, currently owned by the 

State, could provide the additional acreage needed without a lengthy land acquisition process. 

The A2 site is currently designated as a CERP water storage project for future construction. This 

land is currently under lease-back to farmers and notice will need to be served on those 

landowners regarding State plans to use this site for treatment or storage. 

USEPA considered including an option in this Amended Determination for utilizing the 

A1 site as a deep reservoir in the event the Consent Decree Court rules to deny the State’s 

motion for relief in building the A1 site as a reservoir. Such an option has been developed by 

 

49 See Attachment H, Table 3, ID 3. 

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USEPA and can be provided at such time that a decision to deny the State’s motion is issued. 

However, on August 30, 2010, the Special Master issued his Report of the Special Master (SM 

Report), recommending the court relieve the SFWMD of its obligation to build the A1 reservoir. 

The Special Master based that recommendation on changing circumstances and the affect it 

could have on the ability to build other restoration projects. "If the District is required to build a 

reservoir on Compartment A-1, the ability of the State Parties to expand STA 3/4 by utilizing 

adjoining land (see Figure 1 above) will be eliminated and the cost to the District of having to 

build the A-1 Reservoir, make the Cross-Bolles Canal improvements, and build ECART, will 

significantly foreclose its financial ability to develop additional STAs to satisfy water quality 

standards ...." SM Report at 56-57. "The estimates provided to the Special Master are that 

something between $724 and $815 million would be required to build A-1 Reservoir and related 

canal improvement projects." SM Report at 58. Based on the Special Master’s Report, USEPA 

is including in the Amended Determination one remedy based on an STA expansion in the A1 

compartment. Should the Consent Decree Court rule to deny the State’s motion, the alternative 

remedy for A1 as a deep storage reservoir can be provided in a timely fashion. 

 

(i) STA 2, STA 3/4 and Compartment B: Milestones and Schedule 

USEPA is assuming in this remedy that the A1 site will be utilized in full as a 15,000-

acre STA. Any additional STA acreage needed can be obtained from the A2 site. Since the A1 

site provides 15,000 acres of effective STA treatment area, an approximate 600-acre STA 

expansion will be needed at the A2 site. (Any remaining area within the A2 not needed as an 

STA could be developed for water storage.) USEPA believes the WQBEL can be attained in 

STA 3/4 and Comp B NBO by December 31, 2014 if the A1 site is first utilized as an interim 

shallow storage reservoir, and later converted to an STA. This will allow water to be stored in 

the A1 site and allocated to STA 3/4 and Comp B NBO at a flow and TP load that can meet the 

WQBEL.50 The remaining central basin flows will be directed to STA 2 and the Comp B SBO. 

STA 2 and Comp B SBO will achieve the WQBEL when the A1 site and A2 site STA 

expansions are designed, built, and in operation. The SFWMD will need to make improvements 

in the canal conveyance from the S6 Basin to the expanded STAs in the Central Flow Path (such 

as the Cross-Bolles Canal system) to divert flows away from STA 2 and Comp B SBO in excess 

of the volume that can be effectively treated to the WQBEL. At the completion of these projects, 

the Central Flow Path STA complex will be discharging to WCA 2A and WCA 3A about 

987,000 acre-ft of average annual flow (see Attachment H). 

 

50 See Attachment H, Table 3, ID 5. 

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The State of Florida will need to complete the following actions in the timeframes 

specified below to bring STA 2 and Compartment B SBO to full operation to attain the WQBEL. 

The requirements are summarized in the table below. 

STA 2 and Comp B SBO: Summary of Schedule to Meet WQBEL 

(A1 and A2 utilized as STAs) 

Activity Milestone Date to Complete Activity

Assumes Consent Decree Court Rules on use of the A1 site September 30, 2011 

Complete NEPA review for land use change of A1 and A2 May 31, 2013 

Complete Design for STA in A1 and A2 (2 years after 

Consent Decree Court rules on use of A1) 

September 30, 2013 

Acquire all necessary environmental permits needed to 

begin construction of STAs in A1 and A2 (2 months after 

design is complete) 

November 30, 2013 

Expansion flooding in A2 starts (2 years after construction 

begins) 

November 30, 2015 

Complete construction of STAs in A1 and A2 (3 years after

permitting) 

November 30, 2016 

Complete improvements in the canal conveyance from S6 

to expanded STA 3/4 complex (A1 and A2 STAs) 

December 31, 2016 

STA 2 and the Comp B SBO STA performance consistent 

with the WQBEL (2.5 years after flooding) 

May 31, 2018 

The State will need to work with the federal agencies to complete the required NEPA review by 

May 31, 2013.51

 

Before any progress can be made on design and construction of an expanded STA on the 

A1 site, the Court in the Consent Decree Case must grant the State’s motion for relief from 

building the site as a reservoir. If the decision in the Consent Decree Court is made one year 

from now and the ruling is in favor of the State, the State can file a new permit application with 

the USACE who can begin the NEPA process to change the use of the A1 site and a portion of 

the A2 site from water storage to an STA. The estimated timeframe for completion of the NEPA 

process is approximately 1.5 years. USEPA encourages the USACE and the SFWMD to use an 

efficient approach to conducting the required NEPA review. 

 

51 As noted above, there is a potential for one NEPA analysis to be completed for all of these projects. 

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The State will need to complete the detailed design including all plans and specifications for the 

A1 and A2 STA expansion by September 30, 2013.

USEPA is assuming that a detailed design for converting the use of the A1 and part of the 

A2 compartments from a reservoir to a STA can begin as soon as the Consent Decree Court rules 

on the A1 case. SFWMD should have access to the land immediately to begin testing and other 

data collection since the land is currently owned by the State. Given these assumptions, the State 

will need to complete the detailed design within two years after a decision is reached by the 

Court in the Consent Decree Case. 

The State will need to acquire all necessary environmental permits needed to begin construction 

on the A1 and A2 expansion by November 30, 2013.

See Section III.C.2.(b) above for discussion of the permitting process. 

The State will need to have the A2 expansion site ready for flooding by November 30, 2015. 

Approximately two years after construction is started, after the external berm and internal 

levees and gates are built, but before the pumps and the pump station are completed, the STA 

expansion will be flooded internally with water. This allows marsh vegetation to begin to 

establish itself within the STA, and the existing legacy TP loads in the soil within an STA, if 

any, to be reduced. USEPA is assuming that approximately one year after flooding, the STA will 

begin demonstrating net improvement in water quality at the downstream point within the STA 

on a consistent basis as compared to the inflow concentration. Once net improvement has 

occurred and the pumps and pump stations are completed, the STA can begin discharging to the 

Everglades Protection Area. 

The State will need to complete construction of the A1 and A2 expansions by November 30, 

2016.

Construction includes two main phases: 1) the civil works which include land leveling, 

and construction of levees, canals, gates, and other structures; and 2) construction and 

installation of pumps and pump stations. USEPA is allowing three years for construction, 

including hydraulic improvements. 

The State will need to complete improvements in the canal conveyance from S6 basin to the 

A1/A2/STA 3/4 complex by December 31, 2016.

 STA 2 and Comp B SBO are not adequately sized to treat all flows from the S6 Basin. 

To avoid a lengthy land acquisition process to buy land adjacent to STA 2, USEPA’s remedy 

will need the State to improve canal conveyance to move water away from STA 2 and Comp B 

SBO to STA 3/4 and the A1/A2 expansions. 

 

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The State will need to provide discharge water from the expanded A1 and A2 facilities 

(including the current STA 2 and Comp B SBO facilities) that is consistent with the WQBEL by 

May 31, 2018.

The expanded A1/A2 facility will be built in areas where some of the land has been lying 

fallow (the A1 compartment), and some of the land is in current agricultural production (the A2 

compartment). A portion of the new treatment marsh may need to overcome legacy loads of soil 

TP before TP removal from the inflow water will begin to occur. USEPA estimates that it will 

take the expanded STA facility 2.5 years after flooding to begin to perform consistent with the 

WQBEL. At this point, the STA is to be delivering water to the Everglades Protection Area that 

protects the designated use of the Everglades and does not lead to an imbalance in flora or fauna. 

Compliance with the WQBEL will be assessed in accordance with the terms of the conformed 

NPDES and EFA permit described in Section V. 

The State of Florida will need to complete the following actions in the timeframes 

specified below to bring STA 3/4 and the Comp B NBO into full attainment with the WQBEL. 

The requirements are summarized in the table below. 

STA 3/4 and Comp B NBO - Summary of Schedule to meet the WQBEL 

A1 as FEB and later converted to STA + A2 STA 

 

Activity Milestone Date to Complete Activity 

Assumes Consent Decree Court rules on use of 

the A1 site 

September 30, 2011 

Complete NEPA review for land use change of 

A1 and A2 

 

May 31, 2013 

Complete design for A1 interim shallow storage 

reservoir 

May 31, 2013 

Acquire all necessary environmental permits 

needed to begin construction of A1 as interim 

shallow storage reservoir (2 months after design is 

complete) 

July 31, 2013 

Complete construction and begin diverting flows 

to the A1 interim shallow storage reservoir (8 

months after permitting) 

March 31, 2014 

STA 3/4 and Comp B NBO performance 

consistent with WQBEL (9 months after flows 

diverted to A1 FEB) 

December 31, 2014 

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The State will need to work with the federal agencies to complete the required NEPA review by 

May 31, 2013.

 

Before any progress can be made on design and construction of an expanded STA on the 

A1 site, the Court in the Consent Decree Case must grant the State’s motion for relief from 

building the site as a reservoir. If the decision in the Consent Decree Court is made one year 

from now and the ruling is in favor of the State, the State can file a new permit application with 

the USACE who can begin the NEPA process to change the use of the A1 site and a portion of 

the A2 site from water storage to an STA. The estimated timeframe for completion of the NEPA 

process is one year and eight months. USEPA encourages the USACE and the SFWMD to use 

an efficient approach to conducting the required NEPA review. 

The State will need to complete the detailed design including all plans and specifications for the 

A1 interim shallow storage reservoir by May 31, 2013.

Some construction has already occurred at the A1 site for a reservoir. Some perimeter 

berms are in place, grubbing and clearing have occurred, and some land leveling activities have 

taken place. USEPA is assuming that a detailed design for converting the use of the A1 parcel to 

an interim shallow storage reservoir can begin as soon as the Consent Decree Court rules on the 

A1 case. Given these assumptions, the State will need to complete the detailed design within 

approximately one year and eight months after a decision is reached by the Court in the Consent 

Decree Case. This design process will run in parallel with the NEPA process for changing the 

use of the A1 compartment from storage to treatment. 

The State will need to acquire all necessary environmental permits needed to begin construction 

on the A1 interim shallow storage reservoir by July 31, 2013.

See Section III.C.2.(b) above for discussion of the permitting process. The schedule for 

A1 interim shallow storage reservoir allows the State one year and ten months after the Consent 

Decree Court rules on the A1 site to obtain the necessary permits for constructing the A1 site as 

an interim shallow storage reservoir. 

The State will need to have construction of the A1 site interim shallow storage reservoir 

complete and flooded by March 31, 2014. 

It is assumed by USEPA that the A1 site can be constructed as a shallow storage reservoir 

by March 31, 2014. The State has already made significant progress in building this site as a 

reservoir, and it is assumed that completing construction (which involves finishing the external 

berm) can be accomplished quickly. 

The State will need to provide discharge water from STA 3/4 and the Comp B NBO facilities 

that is consistent with the WQBEL by December 31, 2014.

Once flows can be diverted to the A1 interim shallow reservoir, the STA 3/4 and Comp B 

NBO STAs can begin to adjust to the new favorable hydraulic conditions. STA 3/4 has been 

performing well even at the current over-loaded conditions. USEPA is assuming that STA 3/4 

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and Comp B NBO will take nine months to adjust and begin to perform consistent with the 

WQBEL. See Section III.C.2.(b) – STA Performance Consistent with WQBEL (above) for a 

discussion of factors affecting the date by which the STA can meet the WQBEL. 

(c) The Western Flow Path

The Western Flow Path drains runoff from the C-139 basin and some runoff from the S-3 

and S-8 basins through STA 5 and STA 6 into discharge canals that ultimately discharge to 

WCA 3A. A project is well underway to expand STA 5 and STA 6 by 4,100 acres in the 

Compartment C build out. Modeling conducted by USEPA for this Amended Determination 

indicates that, even with the Compartment C expansion, the Western Flow Path will need a 

7,000-acre FEB to meet the WQBEL in STA 5, STA 6 and Compartment C. 

Compartment C is currently under construction, and is planned for completion in 

February 2012. Construction was recently halted in response to the discovery of cultural 

resources. Consultation among the SFWMD, Seminole and Miccosukee Tribes, the State 

Historic Preservation Office and the USACE is being reinitiated under section 106 of the 

National Historic Preservation Act 16 U.S.C. 470 (1966). Upon completion of this consultation 

process, the SFWMD plans to report to the Special Master in the Consent Decree Case on the 

costs and timelines associated with remediation of the cultural resource sites. The deadline for 

completion of this process is not known at this time.52 

USEPA is assuming these issues will be resolved and Compartment C will remain on 

schedule to be flooded in the 2012 wet season (approximately July 2012). Once Compartment C 

is operational, some inflows currently going to STA 5 and STA 6 can be diverted to 

Compartment C for treatment. This diversion to Compartment C will reduce the hydraulic overloading in STA 5 and STA 6 and improve their overall performance, resulting in less TP loading 

to the Everglades. However, until the additional 7,000-acre FEB is operational, STA 5, STA 6 

and Compartment C will be unable to meet the WQBEL. 

USEPA explored the concept of requiring the State to meet the WQBEL in the existing 

STA 5 and STA 6 facilities shortly after flows could be diverted to Compartment C, and 

concluded the STAs will not be able to meet the WQBEL until the C-139 FEB facility is built 

and operational. STA 5 and STA 6 have performance problems related to hydraulic over-loading 

during the wet season and dry-out of portions of the STA during the dry season. Soils in STA 5 

and STA 6 are sandy and far more permeable than the peat or muck soils in the central and 

eastern flow paths. As a result, water seeps through the soils into the ground water during the 

dry season causing dry-out of the STAs. When the dry part of the STA is re-flooded with water, 

TP from the soils is released into the water column, causing spikes in the outflow of the STA. 

This drying-out is associated with poor performance in STA 5 and 6, and may also result in poor 

performance in Compartment C. Given current performance issues in STA 5 and STA 6, these 

STAs will need to operate as a unit with the Compartment C and the C-139 FEB in order for 

effective treatment to occur. Therefore, STA 5, STA 6, and Compartment C will not meet the 

WQBEL until the STA expansion is fully operational. 

 

52 See South Florida Water Management District’s Responses to Questions Posed by the Special Master During the 

Hearing on July 26-30, 2010. 

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The SFWMD recently announced a pending purchase of 17,900 acres of citrus groves 

from the U.S. Sugar Corporation in the C-139 basin annex. This purchase is to be finalized in 

October 2010. This large parcel of land is located west of, and adjacent to, Compartment C and 

STA 6, making it an optimal location for the expansion of the STA 5/STA 6/Compartment C 

complex. Therefore, even though land acquisition is needed in the Western Flow Path, this does 

not significantly lengthen the schedule for meeting the WQBEL since land acquisition is 

anticipated to be complete approximately two months after the Amended Determination is filed 

(or by November 2, 2010).53 

When Compartment C and the 7,000-acre FEB are fully operational, the western STA 

complex including STA 5, STA 6, Compartment C, and the C-139 FEB will be capable of 

treating the existing run-off from the C-139 basin (an average annual inflow volume of 200,000 

acre-ft per year) to the WQBEL. 

(i) STA 5, STA 6, Compartment C, and C-139 expansion: Milestones and Schedules 

The State of Florida will need to complete the following actions in the timeframes 

specified below to bring Compartment C to full operation. The requirements are summarized in 

the table below. 

STA 5, STA 6 and Comp C - Summary of Schedule to meet the WQBEL 

Activity Milestone Date to Complete Activity 

Complete construction of Compartment C February 29, 201254

Compartment C is flooded (in 2012 wet season 

after cultural resource issue resolved) 

July 1, 2012 

Begin discharge from Compartment C (1.5 yrs 

after flooding) 

January 1, 2014 

Improved performance of STA 5 and STA 6 (1 yr 

after diverting flows to Comp C) 

January 1, 2015 

Complete construction of C-139 expansion and 

begin to divert flows away from STA 5, STA 6 

and Compartment C 

September 30, 2016 

 

53 USEPA is assuming the State’s purchase of the U.S. Sugar Corporation property in the C-139 Basin will be 

finalized in November 2010. If this land acquisition is not finalized, this could affect the schedule for meeting the 

WQBEL in the Western Flow Path. 

54 This date is contingent upon completion of the cultural resource concerns in Compartment C. 

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STA 5, STA 6, Compartment C complex 

performing consistent with the WQBEL (1 year to 

adjust to new hydraulic condition) 

September 30, 2017 

The State will need to complete construction of Compartment C by February 29, 2012.

Compartment C is currently under construction. The levees and canals are scheduled to 

be completed by December 2010. The pumps and pump station will be fully operational by 

February 2012. USEPA is assuming issues with cultural resources, which have halted work in 

Compartment C, will be resolved so that the following schedule can be met. USEPA is also 

assuming that Compartment C will be completely flooded during the 2012 wet season (late 

spring to early summer). Once discharge from Compartment C begins, a portion of the inflows 

currently being treated by STA 5 and STA 6 can also be treated by Compartment C. 

The State will need to have Compartment C ready and flooded by July 1, 2012.

In the case of the Western Flow Path, USEPA is assuming that flooding is likely to only 

be possible during the wet season. In this case, while the external berm and internal levees may 

be complete in the Fall of 2011, flooding will occur in the wet season of 2012. 

The State will need to have Compartment C showing net improvement and begin discharging by 

January 1, 2014.

After flooding, marsh vegetation can begin to establish itself within the STA, and the 

existing legacy TP loads in the soil within the Compartment C STA, if any, can be reduced. 

Once the Compartment C STA begins demonstrating net improvement in water quality at the 

downstream point within the STA on a consistent basis as compared to the inflow concentration, 

the SFWMD may begin discharging to the Everglades Protection Area. 

The State will need to manage STA 5 and STA 6 so that improved performance of the STAs will 

occur by January 1, 2015.

After excess flows are diverted away from STA 5 and STA 6 to Compartment C, it is 

assumed that within one year, the discharges from STA 5 and STA 6 will show reductions in the 

amount of TP released to the Everglades Protection Area. While the STAs will not be able to 

meet the WQBEL until flows can be diverted to the C-139 expansion, the improvements in TP 

loading will benefit the Everglades Protection Area. 

The State will need to complete construction of the C-139 expansion by September 30, 2016.

Construction includes two main phases: 1) the civil works which include land leveling, 

and construction of levees, canals, gates, and other structures; and 2) construction and 

installation of pumps and pump stations. USEPA is allowing three years for construction, 

including hydraulic improvements. 

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The State will need to discharge water from the STA 5/STA 6/ Compartment C complex that is 

consistent with the WQBEL by September 30, 2017 and consistent with the water quality 

standards for the downstream Miccosukee and Seminole Tribal waters. 

The C-139 FEB is in areas that are currently in citrus production. The past construction 

of STAs in areas of prior citrus production has not demonstrated large legacy loads of soil TP. 

Since this FEB will operate in series with STA 5, STA 6 and Compartment C and will discharge 

through STA 5, STA 6, or Compartment C, the FEB is not required to directly meet the 

WQBEL, but flow equalization in this upstream facility controls when STA 5, STA 6, and 

Compartment C will meet the WQBEL. It is assumed that it will take STA 5, STA 6, and 

Compartment C one year after the hydraulic loading is reduced to adjust to the new hydraulic 

condition. At this point, the STAs will be delivering water to the Everglades Protection Area 

that protects the designated use of the Everglades, and does not cause an imbalance in flora or 

fauna. Compliance with the WQBEL will be determined in accordance with the provisions of 

the conformed NPDES and EFA permit for this STA discussed in Section V. 

C-139 Expansion - Summary of Dates 

Activity Milestone Date to Complete Activity 

Complete land acquisition for C-139 FEB November 30, 2010 

Complete NEPA Review May 31, 2013 

End of design for C-139 FEB (2 years after land 

acquisition) 

June 30, 2013 

Acquire all necessary environmental permits 

needed to begin construction of the C-139 

expansion (one year and ten months after end of 

design) 

August 31, 2013 

C-139 expansion flooding starts (in wet season 

following 1 year and 10 months after construction 

starts) 

July 1, 2015 

Complete construction of C-139 expansion (3 

years after permitting) 

September 30, 2016 

Flows now going through the C-139 FEB into 

STA 5/6 and Comp C 

September 30, 2016 

The State will need to complete its purchase of 8,800 acres needed to build a FEB in the C-139 

annex by November 3, 2010.

The State announced a pending purchase of 17,900 acres in the C-139 annex. The 

purchase is to be finalized in October 2010. 

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The State will need to work with the federal agencies to complete the required NEPA review by 

May 31, 2013.

 

In order to obtain a CWA Section 404 permit to build an FEB in the C-139 basin, a 

NEPA review will need to be conducted. The USACE can begin the NEPA process as soon as 

the land purchase is finalized. The USACE is considering the development of a regional EIS. In 

this case, the NEPA process for the C-139 FEB will be on the same schedule as the EIS for the 

Central Flow Path. The estimated timeframe for completion of the NEPA process is 

approximately two years and seven months. USEPA encourages the USACE and the SFWMD 

to use an efficient approach to conducting the required NEPA review. 

 

The State will need to complete the detailed design including all plans and specifications for the 

7,000-acre FEB in the C-139 annex by June 30, 2013.

The detailed design, which is specific to the parcel of land on which the STA is built, 

requires access to the land for environmental assessments, testing, and data collection. The test 

results and other data provide the information needed for the production of detailed plans and 

specifications for excavation, berms, canals and gates, and the hydraulics for how water will be 

moved into, through, and out of the FEB, including the size and locations of pumps. 

The State will need to acquire all necessary environmental permits needed to begin construction 

on the C-139 FEB by August 31, 2013.

See Section III.C.2.(b) above for discussion of the environmental permitting. 

The State will need to start flooding the C-139 FEB in the 2015 wet season by July 1, 2015.

Approximately two years after construction is started, after the external berm and internal 

levees and gates are built, but before the pumps and the pump station are completed, the FEB 

may be flooded internally with water. However, in the case of the western STAs, USEPA is 

assuming that flooding is likely to only be possible during the wet season. 

The State will need to complete construction of the C-139 expansion by September 30, 2016.

Construction includes two main phases: 1) the civil works which include land 

leveling, and construction of levees, canals, gates, and other structures; and 2) construction and 

installation of pumps and pump stations. USEPA is allowing three years for construction, 

including hydraulic improvements. 

The State will need to begin diverting flows through the C-139 expansion and into STA 5, STA 6 

and Compartment C by September 30, 2016.

 As soon as construction is complete on the C-139 FEB, flows can be diverted away from 

STA 5, STA 6, and Compartment C into the C-139 FEB. From the C-139 FEB, flows will be 

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allocated to STA 5, STA 6, and Compartment C at a rate that the TP loading can be treated by 

the STAs to the WQBEL. 

IV. Measure and Submit Annual Reports on Cumulative Impacts until Water Quality 

Standards Attained 

Pursuant to the 2010 Order at 45, the State is directed to “measure on a yearly basis the 

cumulative impacts and effects of phosphorus intrusion beyond the 10 ppb standard within the 

Everglades Protection Area until such time as full compliance with the 10 ppb standard is 

achieved.” Monitoring and reporting was a critical element of the enforceable framework in 

USEPA’s 1999 Determination. At that time there was an extensive monitoring and reporting 

program in place that met those requirements. This program continues today.55 The FDEP and 

SFWMD currently have a monitoring program for assessing TP throughout the Everglades 

Protection Area with results reported in the annual South Florida Environmental Report (SFER). 

However, there are enhancements to this monitoring program that would be needed to 

fully address the Court’s 2010 Order to monitor and report on cumulative effects. Therefore, 

USEPA is directing FDEP to conduct or perform other actions related to monitoring of TP and 

its cumulative impacts in the Everglades Protection Area. In addition, the SFER needs to report 

on an annual basis the total volume of water discharged into the Everglades Protection Area from 

the EAA and C139 Basins, the annual FWM TP concentration, and the TP load. The SFER also 

needs to report the loads of TP that would have been discharged had the annual FWM TP 

concentration been at 18 ppb and the annual GM TP concentration been at 10 ppb (WQBEL).

A. Rectify two limitations with the current application of the total phosphorus water quality 

criterion in the Everglades Protection Area. The State is to review the application of the fourpart test and submit to USEPA a methodology for how it intends to address the two deficiencies 

specified below by January 31, 2011.

The TP criterion rule for the Everglades Protection Area includes a four-part assessment 

methodology (four-part test) that was affirmed by the Court in 2008. (F.A.C. 62-302.540(4)). 

The purpose of this test is to assess whether or not the long-term (decades) 10 ppb geometric 

mean criterion is being achieved on a short-term (annual) basis. The four-part test places upper 

limits on TP concentration in the Everglades marsh using temporal and spatial scales to limit the 

variability or range of TP concentrations throughout the Everglades to the variability observed at 

the unimpacted marsh reference sites. The objective is to determine whether the TP criterion is 

met throughout all of the Everglades Protection Area. Results are reported annually by FDEP in 

the SFER. As of 2009, FDEP applies the four-part test via a network of 58 water quality 

sampling stations within the Refuge, WCA2 and WCA3 (2010 SFER 3A-11 to 3A-14, Appendix 

3A-6). However, there are two limitations with the State’s current application of the four-part 

test to the Everglades Protection Area. 

 

55 Subsection (4)(d) [Everglades research and monitoring program] specifically identifies the research and 

monitoring required as well as the submission of an annual report (providing the results of the research and 

monitoring) to the Legislature. 

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(1) Failure to consistently assess achievement of the criterion in drier parts of the 

Everglades Protection Area: The first limitation involves the lack of application of the TP 

criterion to drier portions of the Refuge and northwestern WCA3A. At the time that the TP Rule 

was approved in 2005, the four-part test station network was being established. Paragraph 7 of 

the Rule incorporates a data quality screening protocol that limits the applicability of the Rule to 

only those stations that have a minimum of six months of data within a given water year. Now 

that five years of data are available (2010 SFER Appendix 3A-6), it has become apparent that a 

consequence of this six-minimum sample requirement is that from 2005 to 2009, the TP criterion 

typically was not consistently applied to two drier portions of the Everglades Protection Area: 

three stations in the Refuge (A108, LOX 3 and LOX 5) and one station in WCA3A (CA35) 

immediately north of the Federal Reservation of the Miccosukee Tribe of Indians of Florida. 

This latter station is of particular interest because it is FDEP’s only four-part test station 

upstream of these tribal waters that can assure that the downstream waters are protected as 

required by the CWA. 

To correct this limitation, FDEP needs to assess the application of the four-part test every 

five years and assure that the criterion is applied in a manner that is protective of these drier 

portions of the Everglades Protection Area. FDEP should report the first review with any 

suggested corrective measures to USEPA by January 31, 2011. 

(2) Gaps in the spatial coverage of the monitoring network in the Refuge (WCA1): The 

application of the four-part test needs minor adjustment to the station locations within the Refuge 

in order to fill in gaps in the spatial coverage. Two stations need to be added to the four-part test 

network in the Refuge; a station midway between X4 and LOX 11, and a station midway 

between LOX 7 and LOX A137. See page 3A-11 of the 2010 SFER. 

B. Prepare an annual report due on March 1 of each year starting on March 1, 2011 summarizing 

TP water quality, vegetation, and soils data from each transect monitoring site. The report must 

provide a summary of whether the TP conditions at each site are improving, worsening, or 

remaining unchanged. 

Sampling along transects downstream of the STAs is necessary to determine the extent of 

phosphorus intrusion into the Everglades marsh due to STA discharges above the 10 ppb 

WQBEL, and to determine whether these discharges cause or contribute to violations of water 

quality standards. This type of sampling is useful for understanding the spatial extent of impacts, 

as well as changes in condition, including improvement, at a location over time. STA 1E and 

1W discharge directly into the Refuge. The discharge from STA 2 presently travels two miles in 

a canal before it flows into the Everglades Protection Area. The EFA permits for these STAs 

currently require downstream monitoring along transects. The conformed56 NPDES permits for 

these three STAs will also require monitoring along transects downstream of the STA discharge 

for the purpose of documenting TP intrusion into the Everglades Protection Area, and 

determining whether STA discharges are causing or contributing to water quality standards 

violations and are causing other ecological impacts. 

 

56 As described in more detail in section V.A., USEPA is providing a strikethrough “conformed” version of all 

current STA NPDES and EFA permits in Attachment I. 

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In addition to requiring annual reporting of monthly monitoring for surface water TP 

concentration, the soil TP concentration must also be determined at the transect stations in the 0-

10 cm soil profile once every two years. Also, beginning in the dry season of 2011, the extent of 

macrophyte indicators of phosphorus enrichment such as, but not limited to, cattail, will be 

quantified each year during the dry and wet seasons using established methods.57 Any 

modification to the monitoring plan or methods must be pre-approved by USEPA. If future 

modifications to water delivery patterns result in water from STA3/4 being discharged directly 

southward into WCA3A, then the same transect monitoring program will be required in the 

STA3/4 NPDES permit beginning two years before discharge.58 The conformed permits reflect 

these requirements. 

C. Assure that stratified random sampling is conducted every five to seven years throughout the 

Everglades Protection Area in order to document soil TP conditions and temporal trends. The 

next sampling is to be completed by December 201259 (unless an adjustment to this date is 

needed to integrate with monitoring conducted through the CERP) and a final report provided to 

the USEPA by December 2013. 

An additional monitoring design is required in order to quantitatively determine the 

magnitude, extent, and expansion of phosphorus pollution and cumulative impacts throughout all 

of the Everglades Protection Area. Phosphorus levels in soil are a key indicator of enrichment. 

Various sampling designs have been previously used by scientists in the Everglades to make 

quantitative statements about soil phosphorus.60 

By January 31, 2011 the most appropriate sampling design will be determined subject to 

review by USEPA. This will include the specific location and number of sampling stations. The 

design will be subjected to scientific review and submitted to USEPA for approval by February 

28, 2011. This monitoring effort should be integrated as appropriate with monitoring conducted 

through the CERP or other restoration or natural resource management activities. This 

comprehensive monitoring and reporting program will ensure that the progress being made in 

restoration of the Everglades can and will be documented. This will also ensure that as the 

additional STAs or FEBs are being constructed, the status of the Everglades will be monitored to 

document further degradation or improvement. Ultimately, this program will provide some of 

the information needed to determine whether restoration is complete. 

 

57 SFWMD 2010 Project WCA-2A Monitoring Plan for STA 2 and Compartment B Build-out Downstream 

Monitoring Plan. SFWMD-FIELD-MP-071-01. (January 20, 2010) 58 Part of the long term goal of Everglades restoration is to restore sheetflow to the Everglades that will require 

modification to how the water is delivered to the Everglades Protection Area. 

59 The most recent sampling for soil TP throughout the Everglades was completed in 2008 for WCA 2 and in 2005 

for the rest of the Everglades Protection Area. 60 Previous soil TP sampling efforts have sampled about 200 to 1000 individual sites per event, with the specific 

location and number of sample stations determined by different scientific and statistical methods, each of which has 

strengths and weaknesses. The District has used a grid approach and a stratified random design (2006 SFER at 6-49 

to 6-50). USEPA R-EMAP has used a stratified version of a random probability-based design. This approach 

allows quantitative determinations across space about the status of an ecological condition, such as in 2005 soil TP 

exceeded 500 mg/kg in 24.5 +/- 6.4% of the Everglades Protection Area. (see Scheidt, D. J. and P. I. Kalla. 2007. 

Everglades ecosystem assessment: water management, water quality, eutrophication, mercury contamination, soils 

and habitat. Monitoring for adaptive management: a R-EMAP status report. USEPA 904-R-07-001. United States 

Environmental Protection Agency, Atlanta, Georgia.) 

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D. Assure that maps that accurately depict the spatial extent of cattail and a summary report are 

completed on a recurring basis for the Refuge, WCA 2, WCA 3, and the Park. The first report 

and maps are to be completed by dates detailed below (unless an adjustment to this date is 

needed to coordinate with monitoring conducted through the CERP) and a final report provided 

to the USEPA by dates detailed below.

Vegetation maps have been used to document the spatial extent and spread of cattail 

throughout the Everglades Protection Area.61 Maps that accurately depict the extent of cattail, a 

biological indicator of phosphorus enrichment and imbalance, are to be completed for each 

region of the Everglades Protection Area (the Refuge, WCA2, WCA3 and the Park). These 

efforts should be integrated as appropriate with monitoring conducted through the CERP. The 

summary report must quantify the extent of cattail and the rate of expansion, if any, throughout 

the Everglades region. Deadlines for acquiring the imagery and completing the cattail maps and 

report are as follows: 

Region Date of most recent 

cattail map imagery 

Image Acquisition Cattail Map and Report 

Completed 

WCA2A 2003 March 2011 March 2012 

WCA3A and 

WCA3B 

2004 March 2012 December 2014 

Refuge 2004 March 2013 March 2014 

Park (freshwater) 2009 March 2014 December 2015 

V. NPDES and EFA Permits

In this Amended Determination, USEPA’s development and description of the WQBEL 

in section III.B, in accordance with the Court's 2010 Order, supports the effective 

implementation by the State of its NPDES program authority under section 402(b) of the CWA. 

USEPA has oversight authority over the State's program to help ensure its effective 

implementation, including the authority to object to state permits and issue a federal permit 

where a state's proposed permit is outside the guidelines and requirements of the CWA. The 

2010 Order established that the permits must be conformed based on the court’s finding that 

FDEP violated the injunction in the Court’s 2008 Order on Summary Judgment by taking action 

in “administrative orders” that are incorporated into NPDES permits and that provide for an 

extended compliance period for attainment of the water quality standards for phosphorus under 

the NPDES permits. 2010 Order at 18-21. After FDEP conforms the NPDES permits to include 

the WQBELs, judicial review of the conformed permits would be available in Florida tribunals. 

 

61 Rutchey, Ken, Ted Schall and Fred Sklar. 2008. Development of vegetation maps for assessing Everglades 

restoration progress. Wetlands 28(3):806-816; Sklar, F. T. Dreschel and K. Warren. 2009. Chapter 6: Ecology of 

the Everglades Protection Area. In 2009 South Florida Environmental Report – Volume I. South Florida Water 

Management District and Florida Department of Environmental Protection. West Palm Beach, Florida. 

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A. Conforming STA NPDES Permits and EFA Permits.

Pursuant to the Court’s Order, FDEP is directed to take the following actions related to 

the existing NPDES and EFA permits for discharges from the STAs:

1. Conform all existing STA NPDES and EFA permits to the CWA, the Court’s 2008 Order, and 

the Court’s 2010 Order, by eliminating all references to the non-conforming elements of the 

Long-Term Plan, the moderating provisions, and any extended compliance schedules through 

2016. 

2. Incorporate into conformed permits a WQBEL as identified in this Amended Determination. 

3. Conform all permits within 60 days of this Amended Determination.

Attachment I to this Amended Determination includes a redline/strikethrough version of 

each current STA NPDES and EFA permit that USEPA has prepared for use by FDEP that 

addresses the Court’s Order that all non-conforming elements of the existing permits be 

eliminated. USEPA has also provided specific instructions in the Attachment I permits that: 

1) incorporate the WQBEL, including added provisions for providing early warning of possible 

non-compliance with the WQBEL and reporting excess TP loads if the WQBEL is not met; 

2) update various items that must be included in each Annual Report; 3) update the pollution 

prevention and operations plans; and 4) require various water quality, vegetation, and sediment 

monitoring in downstream Everglades marsh transects to enable future evaluation of the extent 

of phosphorus intrusion due to STA discharges and evaluation of the extent to which STA 

discharges cause exceedances of water quality standards (as required in Section IV.B. above). A 

detailed explanation of USEPA’s changes to the Attachment I permits is provided in 

Attachment J. 

B. Elimination of Compliance Schedules in NPDES and EFA Permits for Discharges into the 

Everglades Protection Area

Florida’s implementing regulations have a general provision authorizing compliance 

schedules for new or revised water quality standards. 62 That State statutory provision, at section 

403.0885, mirrors the federal NPDES regulation regarding compliance schedules in permits at 40 

C.F.R. § 122.47. This is the provision under which FDEP included the administrative 

orders/compliance schedules in the current STA permits. USEPA’s previous approval in 

USEPA's 1999 Determination authorized a compliance schedule based on section 403.0885 for 

 

62 EPA’s interpretation of the CWA section 301(b)(1)(C), articulated in In the Matter of Star-Kist Caribe, Inc., 3 

E.A.D. 172, 175, 177 (1990), is that the section’s July 1, 1977 deadline for meeting WQBELs prohibits compliance 

schedules only for water quality standards adopted and approved before July 1, 1977. EPA interprets section 

301(b)(1)(C) to allow for compliance schedules in permits for WQBELs based on post-1977 water quality standards, 

provided that state law clearly indicates, either in water quality standards or implementing regulations, that 

compliance schedules are authorized. 

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EFA subsection (4)(f)(4), that lapsed on December 31, 2006. In the 2010 Order, in addition to 

finding that the 2006 date cannot be extended as it relates to subsection (4)(f)(4), the Court also 

found that FDEP may no longer rely on the section 403.0885 provision to authorize compliance 

schedules in STA permits. Thus, while Florida has a general provision authorizing compliance 

schedules for WQBELs, for CWA purposes, the State’s specific deadline for the Everglades 

Protection Area (December 31, 2006) is controlling for discharges of phosphorus into the 

Everglades Protection Area. Attachment I reflects the necessary revisions to remove compliance 

schedules (or Administrative Orders under Florida regulation) from the permits. Therefore, 

compliance schedules for WQBELs in the NPDES and EFA permits for discharges into the 

Everglades Protection Area are no longer authorized. 

Further extensions of time for compliance with the required WQBELs in an NPDES or 

EFA permit for STA discharges might be authorized if FDEP develops and USEPA approves a 

variance from the water quality standard that recognizes the existing impairment to the 

designated use and downgrades the use after USEPA approval of a use attainability analysis. 

Absent a regulatory revision, schedules for coming into compliance with WQBELs could be 

included in an appropriate enforcement mechanism (see discussion in Section VI below). 

While both USEPA regulations (at 40 CFR Part 131) and the 2010 Order (at 11) 

recognize the ability and processes that states may use to downgrade the designated uses of a 

water body, either through short-term recognition of an impaired use with a variance or for a 

more extended downgrade after the completion of a use attainability analysis, USEPA does not 

advocate either approach because USEPA believes the designated uses are attainable. Moreover, 

with regard to the timely implementation of additional control measures, any such revisions to 

the water quality standards would require additional time and personnel to proceed through the 

state’s rulemaking process, thus diverting those resources from achieving the shared water 

quality goals for the Everglades Protection Area. 

FDEP will need to submit the conformed NPDES permits to USEPA for review. USEPA 

will review the permits to confirm that FDEP has conformed the permits consistent with the 

CWA and its implementing regulations, the Court’s Orders, and this Amended Determination.63

Pursuant to the Court’s 2010 Order, FDEP must conform its permits within 60 days (November 

2, 2010). 

C. Initiation of Withdrawal of State Authority to Issue New NPDES Permits or Future 

Modifications of NPDES Permits for Discharges Into, or Within, the Everglades Protection Area

 The Court’s Order directed USEPA to “immediately initiate and carry out its authority 

under Section IX of the Memorandum of Understanding to withdraw approval of the State 

program pertaining to issuance of any new NPDES permits for discharges into, or within, the 

Everglades Protection Area, or for any future modifications to existing NPDES permits 

(including through State of Florida Administrative Orders.” (2010 Order at 46). This provision 

only applies to newly issued permits, so the withdrawal would not affect the State’s authority to 

comply with the Court’s order that FDEP conform the existing permits within 60 days of this 

 

63 In USEPA’s 60(b) motion, USEPA proposed a procedure for EPA review of new, re-issued, or modified NPDES 

permits subsequently issued (in lieu of partial program withdrawal). 

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Amended Determination. The Court’s Order further provides that Florida’s program authority 

be withdrawn until such time as the State is in full compliance with the CWA, its implementing 

regulations, the Court’s 2008 and 2010 Orders and this Amended Determination. (Id.) 

On July 29, 2010, USEPA filed a Rule 60(b) Motion for Modification of Injunction 

requesting the Court to replace the provision in the 2010 Order that requires USEPA to initiate 

and carry out partial withdrawal of Florida’s NPDES permitting authority with a new injunctive 

provision that would apply after the existing permits have been conformed pursuant to the 

Court’s Order. On August 2, 2010, the Court issued an order scheduling a hearing on USEPA’s 

motion for October 7, 2010. 

In its Rule 60(b) motion, USEPA proposed that the Court modify its Order to impose a 

process by which, after the existing permits are conformed, USEPA reviews and corrects (if 

needed) any subsequent State permitting action before the action is proposed. That process 

would then rely on USEPA’s existing permit-by-permit oversight authority under CWA section 

402(d) to review proposed permitting actions developed by FDEP. Under this approach, USEPA 

would provide up-front substantive direction to FDEP regarding any permitting action that the 

State contemplates proposing (much as the Court’s 2010 Order currently requires for 

conformance of the existing permits). USEPA has clear authority under the CWA to review 

draft NPDES permits for legal and substantive adequacy, to object to permits when appropriate, 

and to take over the permit at issue if FDEP were to fail to adequately respond to a USEPA 

objection. 

Because the Court is considering USEPA’s Rule 60(b) motion and has scheduled a 

hearing for a date after USEPA must issue the Amended Determination, USEPA is not initiating 

program withdrawal proceedings in this Amended Determination. 

D. FDEP Enjoined from Issuance of NPDES and EFA Permits 

 The Court’s 2010 Order also included the following self-implementing injunction 

against the State of Florida:

“Other than to carry out the requirements of Paragraph 3 [of the 2010 Order], above, the 

FDEP is enjoined from issuing any new NPDES permits, or modifications to existing 

NPDES permits - through State of Florida Administrative Orders, Everglades Forever 

Act permits or otherwise - for STAs that discharge into, or within, the Everglades 

Protection Area until such time as the State of Florida is found by the [US]EPA and this 

Court to be in full compliance with the Clean Water Act, its implementing regulations, 

the Summary Judgment Order, and this Order. All new Administrative Orders and 

Everglades Forever Act permits issued under the laws of the State of Florida must 

conform to, and comply with, the Clean Water Act, its implementing regulations, the 

Summary Judgment Order, and this Order and the forthcoming Amended [US]EPA 

Determination. (Order at 46-47).” 

No further action is required by USEPA to implement the Court’s injunction. 

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VI. Enforceable Framework for Ensuring Compliance with the CWA and Applicable 

Regulations 

In setting aside USEPA’s determinations in the 2008 Order, the Court made several 

references to the 1999 Determination and the detailed analysis that USEPA conducted of the 

“enforceable framework” that supported USEPA’s 1999 approval of the compliance schedule 

implementing Everglades Forever Act (EFA) subsection 4(f) as a new or revised water quality 

standard. (2008 Order at 31). In the Background section of the 2008 Order, the Court noted: 

“Most importantly, [US]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.’ (emphasis added by Court). It [USEPA] 

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’. (emphasis added by Court).” (2008 Order at 31). 

 In its 1999 Determination, USEPA reviewed the EFA and other available information to 

determine if the compliance schedule set out in the EFA was needed, was as short as practicable, 

and did not preclude earlier compliance. USEPA explained that it “considered whether there 

was an enforceable framework that ensured the numeric water quality criterion for phosphorus 

would be met by December 31, 2006 deadline in the EFA or sooner if possible.” (1999 

Determination at 9). In making its determination, USEPA evaluated eight factors and concluded 

that the 2006 compliance schedule in the EFA “is necessary, is being enforced, and serves the 

purposes of the CWA to enhance water quality.” (Id at 18). 

In the 2010 Order, the Court required USEPA to specify an enforceable framework for 

ensuring compliance with the CWA and its applicable regulations. (Order at 45). USEPA 

believes that all of the components of its Amended Determination together represent an 

enforceable framework for ensuring compliance with the CWA and its implementing regulations. 

First, Florida’s water quality standards for the Everglades will be amended to bring them 

into compliance with the CWA and its implementing regulations either through action by the 

State of Florida or USEPA. A significant amendment will be that the water quality standards 

will no longer include any reference to the extended compliance deadline of 2016. 

Second, to ensure that all NPDES and EFA permits for discharges from the STAs into the 

Everglades Protection Area include effluent limitations are as stringent as necessary to meet the 

water quality standards for the Everglades Protection Area, USEPA has provided clear 

instructions to the State of Florida on how the current permits must be conformed to comply with 

the CWA and its implementing regulations. USEPA’s instructions include specifying what the 

appropriate WQBEL is for each of the STAs. Importantly, USEPA has instructed the State that 

the permits may not include any compliance schedules. The new WQBELs must be effective 

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upon the date the permits are effective. Consistent with the Court’s Order, FDEP is to conform 

the permits within 60 days of the Amended Determination. 

Third, USEPA has also provided clear, specific and comprehensive instructions to the 

State of Florida on what actions must be taken to ensure compliance with these new WQBELs. 

USEPA has specified the actions that must be taken to ensure expansion and proper operation of 

each of the STAs in order to meet the new WQBELs. 

Fourth, USEPA is prepared to exercise its full CWA enforcement authorities to ensure 

the actions it has identified as necessary for compliance with the new WQBELs and achieve 

attainment of the water quality standards are implemented according the milestones set forth in 

the Amended Determination. 

Fifth, if the Court grants USEPA’s Rule 60(b) Motion, USEPA will exercise its CWA 

permit oversight authority to ensure that all new NPDES permits or future modifications of 

permits that FDEP will issue for discharges into the Everglades Protection Area fully comply 

with the CWA and implementing regulations. USEPA has authority under CWA section 402(d) 

to object to any State NPDES permit that does not comply with the requirements of the CWA. 

When USEPA objects, unless the State revises the permits to address USEPA’s objection, 

exclusive authority to issue such permits transfers to USEPA. 

USEPA believes that the above actions all serve to create an enforceable framework for 

ensuring compliance with the CWA and its implementing regulations. 

VII. Relationship to U.S. v. SFWMD, Case No, 88-CV-1886-FAM (S.D. Fla.) 

In the 2010 Order, the Court discussed the distinctions and similarities between the 

Consent Decree Case and the case in front this Court. 

To be sure both cases directly concern the problems facing the Everglades. The crucial 

distinction is that the Consent Decree Case turns on a consent decree created pursuant to 

State law – not the Clean Water Act. Thus while the Federal Clean Water Act 

implications here subsume certain matters pertinent to the Consent Decree Case, this 

federal statutory action – which concerns the entire Everglades Protection Area, - casts a 

wider net. Both cases address, however a crucial similarity: the fact that the December 

31, 2006 deadline promised in the Consent Decree and mandated in the [US]EPA 1999 

Determination has not been met. . . . While the parallel proceeding share certain features, 

they are not identical, nor are the available remedies the same, though careful 

consideration should be given [to] accomplishing related goals in a manner consistent 

with the Congressional mandate set forth in the CWA. 2010 Order at 29 – 30. 

The Court went on to require USEPA to reconcile the obligations and commitments 

under the Consent Decree with the Amended Determination that mandates CWA compliance. 

USEPA is defined as part of the United States in the Consent Decree Case and participates in all 

aspects of that case. As a result, USEPA is in the position to reconcile the obligations and 

commitments in either forum. 

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Currently there are several outstanding motions in the Consent Decree Case that are 

parallel to the actions in this case. The existing 1992 CD as amended includes construction 

deadlines and acreages for all the STAs. Consent Decree, Paragraph 10, and Appendix C. It 

also requires the implementation of on-farm best management practices program. Consent 

Decree, Paragraph12, and Appendix E. As discussed in the 1999 Determination, implementation 

of those remedies was an important factor in approving the December 31, 2006 compliance 

schedule. 

In this Amended Determination, USEPA has developed a comprehensive set of water 

quality remedies that require expanding the footprint of all the STAs in each of the flow-ways in 

the EAA, including those remedies needed to address water quality in the Refuge. As noted in 

the August 11, 2010 post hearing brief filed by the United States in the Consent Decree Case, the 

United States intends to provide the Amended Determination to the Consent Decree Court in 

response to the Special Master's August 30, 2010 report, so that the Court may consider the 

comprehensive remedies developed by USEPA. See United States’ Post Hearing Memorandum 

In Support of State Motion for Relief Under FRCP 59(e) and 60(b) From Order to Construct 

EAA A1 Reservoir, August 11, 2010, at 1-2. 

 The current status of the Consent Decree Case centers around the March 31, 2010 Order 

(2010 Consent Decree Order) granting two motions filed by the Tribe. In that Order, the Court 

mandated that the EAA A1 Reservoir be constructed and the court also found that the State and 

SFWMD were in violation of certain other aspects of the Consent Decree. These issues were 

referred to the Special Master for hearings. Subsequently, the SFMWD filed a Rule 59(e) and 

60(b) motion seeking to be relieved of the commitment to construct the EAA A1 Reservoir. The 

basis for that motion is that underlying facts have changed and the EAA A1 property is 

physically situated such that the lands would be better used as an STA or a FEB, but not as a 

deep water storage reservoir. The Special Master held hearings on the motion the week of July 

26, 2010 and has issued a recommendation to the Court on August 30, 2010. That 

recommendation states that the State should be granted relief from building the reservoir on the 

EAA A1 site. The United States filed its own enforcement motion in the Consent Decree case on 

July 15, 2010. See Motion of Plaintiff United States of America for Resolution of Liability 

Issues (D.E. 2179). 

USEPA has considered the EAA A1 Reservoir land as an important option for expanding 

STA 3/4, thereby compressing the timeframe for compliance with the WQBEL. USEPA is 

awaiting the Consent Decree Court’s ultimate disposition of this matter. The Special Master is 

also scheduling hearings on both the liability issues identified in the Tribe’s motions and the 

ultimate remedies needed to meet the water quality requirements of the 1992 Consent Decree for 

the Refuge. 

In sum, USEPA will continue to participate in the Consent Decree Case, to reconcile the 

obligations and commitments in both forums. This section (section VII) is intended to be purely 

descriptive, and is not intended to have any binding effect in the Consent Decree Case. 

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