End fed­eral court over­sight of ’Glades cleanup, wa­ter bosses say

Sun Sentinel Broward Edition - - LOCAL - By Jenny Stale­tovich Mi­ami Her­ald

A quar­ter cen­tury af­ter the state promised to clean up pol­luted farm wa­ter foul­ing the Ever­glades in a his­toric fed­eral court or­der, wa­ter man­agers say it’s time toendthe ju­di­cialover­sight.

In an email ear­lier this month, an at­tor­ney for the South Florida Wa­ter Man­age­ment District asked the U.S. Depart­ment of Jus­tice to agree to ter­mi­nate a “con­sent or­der” struck to end a bit­ter le­gal bat­tle over dirty wa­ter flow­ing off sug­ar­cane fields and into Ever­glades Na­tion­alPark and theLox­a­hatchee Na­tional Wildlife Refuge.

The district, which has re­peat­edly pushed to end the ju­di­cial over­sight, ar­gues that with wa­ter in 90 per­cent of the Ever­glades now meet­ing tar­gets and con­struc­tion on sched­ule for clean-up projects, the or­der is no longer needed.

“This pro­tracted lit­i­ga­tion … stands to­day as an an­ti­quated and in­equitable ves­tige of a by­gone era,” at­tor­ney James Nutt wrote in adraft mo­tionhe for­warded to DOJ at­tor­neys Feb. 10. “It is the right time to ac­knowl­edge the State par­ties’ re­mark­able achieve­ments.”

But plain­tiffs in the law­suit and en­vi­ron­men­tal­ists warn end­ing the con­sent or­der at a time when restora­tion ef­forts re­main far from com­plete — none of the 68 projects that make up the Com­pre­hen­sive Ever­glades Restora­tion Plan is done — would re­move a pow­er­ful tool for en­sur­ing work gets done.

They worry the state, which has changed dead­lines, failed to clean up pol­lu­tion in Lake Okee­chobee and re­neged on a promise to re­place a reser­voir needed to pro­vide wa­ter to South Florida, will in­stead de­clare vic­tory be­fore goals are met.

Theyalso fear the push to re­move court su­per­vi­sion comes at a piv­otal mo­ment: with a new pres­i­dent and a new boss at the En­vi­ron­men­tal Pro­tec­tion Agency who has fought to end its reg­u­la­tions.

“I’ll tell you what’s an­ti­quated is how we man­age wa­ter right now. Dump­ing wa­ter east and west of Lake Okee­chobee is as an­ti­quated as it comes,” said Ever­glades Foun­da­tion CEO Eric Eiken­berg. “Bil­lions of gal­lons of wa­ter are killing things east and west and they want to wait an­other six years to come up with a so­lu­tion. The wa­ter man­age­ment district has lost its mind.”

With­out court su­per­vi­sion, Audubon Florida Ex­ec­u­tive Di­rec­tor Eric Draper also fears wa­ter qual­ity would fall to theLeg­is­la­ture — and po­lit­i­cal whims — or an EPA that might be less in­clined to en­force wa­ter qual­ity rules.

“The state of Florida has had to be dragged along in ev­ery step of the cleanup process,” he said. “If you use the Ok­la­homa stan­dard, we have no rea­son to think if the state stopped im­ple­ment­ing wa­ter qual­ity pro­grams that the EPA would in­ter­vene.”

Draper also called the “90 per­cent” clean claim from the district mis­lead­ing, say­ing it in­cludes vast ar­eas of the­marshthatwere never dirty to be­gin with. “The district is us­ing a book­keep­ing trick of in­clud­ing data that doesn’t re­ally tell the story of how out of bal­ance the wa­ter qual­ity is in theEver­glades,” he said.

Over the years, the state has pushed to end the case and the lat­est call to end ju­di­cial over­sight isn’t ex­actly a sur­prise.

Board chair­man Dan O’Keefe first men­tioned the prospect of the­move to two of the cases’ plain­tiffs — Audubon and the Florida Wildlife Fed­er­a­tion — in De­cem­ber. But the tim­ing sug­gests the district may now be hop­ing for a friend­lier re­sponse with the Trump ad­min­is­tra­tion now in the WhiteHouse.

Nutt’s email­was sent just two days af­ter Congress con­firmed new At­tor­ney Gen­eral Jeff Ses­sions, who voted to strip EPA of its author­ity to reg­u­late green­house gases. In it, Nutt ar­gued the de­cree “stands in­con­sis­tent with prin­ci­ples of eq­uity and fed­er­al­ism,” which limit the pow­ers of gov­ern­ment.

The­move also comes just months af­ter the district threat­ened to ter­mi­nate a lease deal with theU.S. Fish and Wildlife Ser­vice to man­age the Lox­a­hatchee refuge, rais­ing fears that with­out fed­eral in­volve­ment, wa­ter qual­ity rules would no longer be en­force­able in the 147,000-acre refuge.

The con­sent de­cree ended a three-year bat­tle, with Gov. Law­ton Chiles fa­mously show­ing up in court to sur­ren­der, ask­ing “who I can givemy sword to?” The de­cree es­tab­lished three pil­lars of restora­tion: how clean the wa­ter is, where it goes and when it gets there. While the fed­eral gov­ern­ment agreed to han­dle the dis­tri­bu­tion and tim­ing of wa­ter flow, the state agreed to make sure it was clean and laid out a mon­i­tor­ing plan.

Over the past two decades, the state has vastly im­proved wa­ter con­di­tions in the Ever­glades Agri­cul­tural Area, the farm fields that now sep­a­rate Lake Okee­chobee, a his­toric source of wa­ter to the Ever­glades, from the marshes to the south. How­ever, while the amount of phos­pho­rus in flow­ing wa­ter hit its low­est in 17 years last year, the con­cen­tra­tion re­main­above the con­sent de­cree’s tar­get.

In the draft mo­tion, Nutt writes that while the par­ties orig­i­nally agreed to meet wa­ter goals by 2002, then ex­tended it to 2006, no steps are spelled out about end­ing the de­cree.

The mo­tion also ar­gues that the state has ex­panded its restora­tion ef­forts and, cou­pled with EPA reg­u­la­tions, now ex­tends far be­yond the goals set in the con­sent de­cree.

Farmer’s best man­age­ment prac­tices have re­duced runoff and vast stormwa­ter treat­ment ar­eas, part of an $880 mil­lion pack­age of reme­dies agreed to by Gov. Rick Scott to set­tle an­other law­suit, are work­ing.

“This is a law­suit that was filed in 1988, it is now 2017. In the nearly 30 years since the law­suit was filed, Florida has im­ple­mented a rig­or­ous sys­tem of EPA ap­proved wa­ter qual­ity ini­tia­tives that have re­sulted in ex­cep­tional wa­ter qual­ity re­sults,” district spokesman Randy Smith said in an email.

STAFF FILE PHOTO

Restora­tion ef­forts in the Ever­glades are far from com­plete, en­vi­ron­men­tal­ists warn.

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