A recent history of Everglades regulation and litigation.

• Author: Rizzardi, Keith W.

To many Florida lawyers, litigation in the Everglades seems as old as the Everglades itself. Its history can be traced back to the 1800s when Hamilton Disston and Henry Flagler were draining, dredging, and filling Florida's land while fighting in the courts with shareholders, speculators, and state land administrators.(1) The modern history of litigation in the Everglades is dominated by agricultural interests, environmental interest groups, the Miccosukee Tribe of Indians, and state and federal agencies. Along the way, important precedents have been created, affecting the Everglades as well as Florida administrative and environmental law in general.

U.S. v. South Florida Water Management District

The recent history of Everglades litigation really begins in 1988, when the federal government, through then acting U.S. Attorney Dexter Lehtinen, sued the South Florida Water Management District and the then Florida Department of Environmental Regulation (DER), now known as the Department of Environmental Protection (DEP). The lawsuit alleged violations of state water quality standards, particularly phosphorus, in the Loxahatchee National Wildlife Refuge and Everglades National Park.(2)

Numerous agricultural groups, including the Florida Sugar Cane League, sought to intervene in the federal suit against the water management district. The trial court initially denied intervention but was overturned by the appellate court, which ruled that the farmers had the right to participate in proceedings that would translate the local water quality standards from existing narrative standards to more specific numeric criteria.(3)

With litigation continuing to expand, Governor Lawton Chiles walked into the federal courthouse in Miami on May 21, 1991, and announced that the State of Florida was prepared to put an end to the litigation:

I came here today convinced that continuing the litigation does little to solve the problems or restore the Everglades. I am more convinced than ever of that.... We talked about water in the glass.... I am ready to stipulate today that water is dirty. I think that is [what this is] about, Your Honor, is how do we get clean water? What is the fastest way to do that? I am here and I brought my sword. I want to find out who I can give that sword to and I want to be able to give that sword up and have our troops start the reparation, the clean up.... We want to surrender. We want to plead that the water is dirty. We want the water to be clean, and the question is how can we get it the quickest.(4)

The governor's statements marked a turning point for the Everglades, beginning a new process to solve the water quality problems. But the litigation would still continue.

Settlement Agreement

In July 1991, after months of intense technical negotiations, the water management district, Florida DER, and U.S. Department of Justice signed a settlement agreement in the original federal lawsuit. The settlement agreement was then approved by the judge and adopted as a consent decree.(5) The execution of the settlement by state officials was also challenged, although the challenge was ruled to be premature in Florida Sugar Cane League v. Department of Environmental Regulation, 617 So. 2d 1065 (Fla. 4th DCA 1993), because the execution of a settlement agreement was not subject to an administrative proceeding. Instead, the court ruled, the settlement agreements would be subjected to administrative challenges when a subsequent action was taken by the agencies that affects the substantial interests of a party.(6)

The settlement agreement and consent decree required a series of programs to improve water quality and meet state standards in Everglades National Park and the Loxahatchee National Wildlife Refuge by July 2002. Among its provisions were a commitment to construct a series of stormwater treatment areas and to implement a regulatory program requiring agricultural growers to use best management practices to control and cleanse discharges from the Everglades Agricultural Area, located to the north of the Everglades and south of Lake Okeechobee.

These substantive provisions of the settlement agreement were also challenged by agricultural groups based upon due process, subject matter jurisdiction, and other statutory grounds. In an important decision, Judge William H. Hoeveler made a number of major findings, including: the settlement agreement did not impose duties on nonconsenting parties, because they still had an opportunity to pursue remedies through subsequent legal proceedings; the court had subject matter jurisdiction over claims filed by the federal government, including breach of contract claims; the U.S. Attorney General could bring the action based upon violation of state laws, even without consent of other federal agencies; the proposed changes to the Central and South Florida Flood Control Project did not require prior congressional approval and did not violate the Flood Control Act, 33 U.S.C. [sections] 701; and, although an environmental impact statement (EIS) was necessary, its absence was not a precondition to approval of the settlement agreement because the National Environmental Policy Act, 42 U.S.C. [sections] 4331, was not intended to be used as a litigation tactic to delay actions intended to prevent an irretrievable loss of a natural resource.(7) The appellate court upheld Judge Hoeveler's rulings on jurisdiction, but reversed his ruling that an EIS would be required. Instead, the 11th Circuit held that NEPA required federal decisionmaking, not just federal involvement, and that preparation of the EIS based on the settlement agreement was premature.(8) In addition, the 11th Circuit remanded the case for further consideration of the Everglades Forever Act, discussed below. The Supreme Court denied a petition for certiorari.(9)

Public Records Litigation

When the state and federal governmental agencies refused to disclose draft documents related to the settlement negotiations, the agricultural groups filed another series of lawsuits, this time based upon the State of Florida's public records laws.(10) In two cases, Florida Sugar Cane League v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. Sept. 20, 1991), per curiam affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992), and Florida Sugar Cane League v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. June 5, 1992), the courts ruled that draft documents and technical documents prepared not for litigation, but for settlement discussions, were not exempt from disclosure under Florida's public records laws. After those decisions, the other public records cases with other agencies were settled.

Everglades Protection Act and SWIM Plan

Initially, the water management district sought to resolve the problems in the Everglades and implement the settlement agreement and consent decree through its surface water improvement and management (SWIM) planning process. In fact, in 1991, the Florida Legislature passed the Everglades Protection Act to provide a specific framework for the restoration.(11) But when the water management district produced its proposed SWIM plan for the Everglades in March 1992, more litigation ensued. Consistent with the settlement agreement and consent decree, the SWIM plan called for solutions to the ecological and water quality problems in the Everglades, including acquisition, design, and construction of 35,000 acres of manmade marshes to treat stormwater runoff from the Everglades Agricultural Area.(12) Funding sources and schedules for implementation also were provided. The SWIM plan would not be implemented, because agricultural groups in the Everglades Agricultural Area quickly challenged the plan pursuant to the Florida Administrative Procedure Act.(13)

Interim Permits

In addition to preparing a SWIM plan, the water management district also applied for interim permits to operate the structures discharging into the Everglades pursuant to the Everglades Protection Act. To obtain these permits, the water management district was required to demonstrate reasonable assurances to the department that it would comply with interim concentration levels for phosphorus.(14) But when the Florida DER proposed to issue the interim permits, additional administrative challenges were filed.(15) The later revision of the underlying statute, however, would make these permitting cases moot.

Rulemaking Efforts

Rulemaking was yet another controversial aspect of the Everglades restoration efforts being implemented by the water management district and DER. When the water management district proposed a rule requiring the implementation of runoff-controlling...