UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION No GOLD (and consolidated cases)

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1 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 1 of 19 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION No GOLD (and consolidated cases) MICCOSUKEE TRIBE OF INDIANS ) OF FLORIDA, a federally-recognized ) Indian Tribe; and FRIENDS OF THE ) EVERGLADES, ) ) Plaintiffs, ) ) v. UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ) EPA s STATEMENT IN RESPONSE TO THE COURT S JUNE 21, 2012 ORDER Defendants United States of America; United States Environmental Protection Agency; Administrator, United States Environmental Protection Agency; and Regional Administrator, Region 4, United States Environmental Protection Agency (collectively EPA ) submit this Statement in response to the Court s Order of June 21, 2012, ECF No In this Statement, EPA summarizes in Part I below the current status of the National Pollutant Discharge Elimination System ( NPDES ) permit process for the Everglades Stormwater Treatment Areas ( STAs ) and then addresses in Part II the specific matters identified by the Court in its June 21 Order: (A) the effect of the Framework Agreement and the State s ) )

2 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 2 of 19 plan on (1) this case, (2) case No , and (3) related pending appeals; (B) the status of revisions to the Everglades Forever Act; (C) the status and goals of any ongoing discussions between EPA and the State of Florida, including any remaining settlement items; and (D) the final steps needed to reach full resolution of this case. I. STATUS OF PERMITTING PROCESS The Court s Order of April 14, 2010 directed EPA to prepare an Amended Determination. It further required EPA in that Amended Determination to direct the Florida Department of Environmental Protection ( FDEP ) to conform the Clean Water Act discharge permits for the STAs discharging into the Everglades to eliminate all reference 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... Amended Determination. ECF No. 404 at On November 2, 2010, FDEP submitted conformed permit documents to the Court. ECF No In its Order of April 26, 2011, the Court deemed these permit documents to have been submitted to EPA for review under the Memorandum of Agreement between EPA and FDEP. ECF No. 585 at 74. 2

3 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 3 of 19 On June 27, 2011, EPA sent FDEP a letter objecting on four specific bases to issuance of the draft permits. ECF No FDEP requested a public hearing on September 23, ECF No ; see 33 U.S.C. 1342(d)(4). EPA held a hearing on the objections in Delray Beach, Florida, on March 13, On May 7, 2012, EPA notified FDEP that EPA re-affirmed its objections (with some modifications) and that unless FDEP submitted draft permits revised to meet the objections within 30 days of the notification, exclusive authority to issue the permits would pass to EPA. ECF No On June 6, 2012, FDEP submitted to EPA a consolidated revised draft NPDES permit that would authorize discharges from all of the STAs to the Everglades Protection Area. ECF No The revised draft NPDES permit was accompanied by a draft administrative enforcement order on consent to be entered into between FDEP and the South Florida Water Management District ( SFWMD ). In that draft administrative consent order ( CO ) SFWMD would agree to design and construct a suite of remedial projects to achieve compliance with a water quality based effluent limit ( WQBEL ) set forth in the revised draft permit. Id. The proposed WQBEL differed somewhat from the WQBEL developed by EPA in the Amended Determination, but EPA concluded that the proposed WQBEL would be at least as protective as the WQBEL in the Amended 3

4 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 4 of 19 Determination and would be as stringent as necessary to meet the applicable water quality standards. ECF No at pp 5-6. The WQBEL would become effective and enforceable upon the effective date of the revised permit. ECF No On June 12, 2012, EPA and FDEP entered into a Framework Agreement in which EPA agreed that, if FDEP expeditiously takes action to enter the CO and issue the permits (i.e., the NPDES permit and the EFA permit required to authorize construction of the projects), FDEP would retain its leadership role in assuring Everglades water quality restoration for purposes of, and consistent with, the Clean Water Act. ECF No EPA made clear, however, that it would retain its authority to enforce the permit, including both the WQBEL and the interim and final deadlines for design and construction of the projects in the CO, which are incorporated into the permit. On June 13, 2012, EPA notified FDEP that the revised draft permit met EPA s objections and that the State s remedial plan (as described in the draft CO, incorporated into the draft permit, and reflected in the Framework Agreement) meets the water quality goals of the Amended Determination and would establish an enforceable framework for ensuring compliance with the Clean Water Act and applicable regulations. ECF No

5 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 5 of 19 On June 20, 2012, FDEP published a Notice of Draft Permit and a Notice of Public Meeting. ECF No Publication of the notices began the state law public comment period on the draft NPDES permit and CO, which runs until the conclusion of the public hearing, scheduled for July 25, FDEP has stated that it intends to publish Notices of Intent to Issue the permit and CO approximately 14 days after the public hearing. Publication of the Notices of Intent to Issue will, in turn, trigger the 21 day period for filing an administrative appeal of the permit and CO. If no such appeal is filed, the permit and CO (when signed) will become effective at the end of the 21 day period. II. Response To The Court s June 21 Order A.1 Effect Of The Framework Agreement And The State s Plan On This Case As a result of the substantial progress achieved by EPA and the State, a series of administrative steps has been set in motion, which, if implemented by FDEP as intended and in a timely fashion, should result in the establishment of an enforceable framework that satisfies this Court s concerns and complies with this Court s orders in a manner consistent with the Clean Water Act. In particular, as explained below, EPA believes that once (1) this Court enters an order granting EPA s Rule 60(b) motion ( 60(b) Order ), as contemplated by the Eleventh Circuit s limited remand order; (2) EPA finalizes its proposed regulation 5

6 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 6 of 19 identifying those portions of the Everglades Forever Act and Phosphorus Rule that the Court found to be in violation of the Clean Water Act; and, most importantly, (3) the NPDES permit and CO become final and effective as proposed (including the conclusion of any state appeal proceedings) compliance with the Court s Orders will have been achieved and this case fully resolved. The Court s April 14, 2010 Order, ECF No. 404 at 44-45, imposed a number of specific requirements on EPA and/or FDEP: (1) The Court directed EPA to issue an Amended Determination, which would, inter alia, direct the State of Florida to correct the deficiencies the Court found in the Amended Everglades Forever Act and the Phosphorus Rule. The Court further provided that, if the State did not do so within specified time frames, EPA was to take action under CWA section 303(c) to do so. EPA issued the Amended Determination on September 3, 2010, ECF No. 458, and, as discussed below, EPA is prepared to take final action on the proposed water quality standards regulation promptly after the Court enters the 60(b) Order. (2) The Court ordered that the Amended Determination (a) provide clear, specific and comprehensive instructions to the State of Florida on the manner and method to obtain enforceable WQBELs within a time certain, (b) specify milestones, and (c) require an enforceable framework for ensuring compliance. 6

7 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 7 of 19 EPA s Amended Determination specified an appropriately derived WQBEL and described a suite of projects, with milestones, that EPA believed could achieve the WQBEL. However, the Amended Determination also recognized that there could be alternative ways to express the WQBEL that would meet the phosphorus criterion and that there could be alternative suites of remedial projects that would achieve the WQBEL. Accordingly, EPA provided an opportunity for the State to propose an alternative WQBEL and an alternative suite of remedial projects. FDEP and SFWMD did so in late After extensive technical consultation between the State agencies and EPA, EPA concluded that the alternative WQBEL contained in the proposed permit and the suite of corrective actions set forth in the CO (which were enhanced after technical input from EPA) would meet the water quality goals of the Amended Determination and the Clean Water Act and would establish an enforceable framework for ensuring compliance with the Clean Water Act and applicable regulations. EPA s analysis is described in the Assessment Memorandum that was filed with the Court on June 13, ECF No In brief, EPA s analysis demonstrated that the alternative formulation of the WQBEL in the proposed permit is at least as protective as the WQBEL in the Amended Determination and would be as stringent as necessary to meet water quality standards. Similarly, EPA 7

8 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 8 of 19 concluded that the corrective actions and deadlines in the proposed consent order can reasonably be expected to achieve the WQBEL. While the deadline for completion of the suite of projects would extend beyond that projected in the Amended Determination, the Amended Determination deadline estimates were based solely on the history of STA projects to date, including the time required for design, permitting, and construction, assuming that the work began immediately, and did not account for financing. The deadlines in the State s proposed CO are based on the SFWMD s projections of the ability to reliably finance the projects and the time required to design and construct them assuming that work begins after the CO becomes final and effective. EPA also noted that the proposed CO and the EPA-FDEP Framework Agreement provide for a Science Plan for continued research and evaluation of the performance of the STAs and other elements of the remedial plan, which ensures an opportunity for improving and optimizing phosphorus reductions and treatment performance. EPA also determined that the proposed permit and CO, once final and effective (including after conclusion of any state appeal proceedings), will create a federally enforceable framework for achieving water quality standards in the Everglades. The WQBEL in the proposed permit will be enforceable immediately by EPA once the permit is final and effective, and the proposed CO does not alter 8

9 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 9 of 19 the permittee s obligation to comply with the WQBEL upon the permit s effective date. Similarly, the deadlines for construction of the remedial projects in the proposed CO, including interim deadlines, are incorporated by reference into the draft permit, and thus also will be immediately federally enforceable once the permit is final and effective at the conclusion of the state process. Furthermore, any subsequent changes to the projects or schedules would not supersede those originally incorporated into the permit unless the permit is formally modified, a process that is subject to EPA review and objection under CWA section 402(d), 33 U.S.C. 1342(d). Though under the Framework Agreement EPA acknowledged that, if the FDEP takes action expeditiously to issue the permit and enter the CO, FDEP would retain the lead in ensuring Everglades water quality restoration, the Framework Agreement recognizes that EPA retains its enforcement authority and can pursue federal administrative and/or judicial enforcement action as appropriate. (3) In the Amended Determination, EPA directed FDEP to conform the existing NPDES and EFA permits for discharges from the Everglades STAs to be consistent with the requirements of the Clean Water Act, this Court s Orders, and the Amended Determination, including (a) elimination of the references to the non-conforming elements of the Long-Term Plan, the moderating provisions and 9

10 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 10 of 19 the extended compliance schedule through 2016, and (b) requiring compliance with the phosphorus narrative and numeric criteria. As discussed above, if the proposed permits and CO (as currently drafted) become final and effective in a timely fashion, FDEP will have complied with the requirement to conform the existing STA permits. Furthermore, because the proposed permits would replace all of the existing NPDES and EFA permits and eliminate all references to or reliance on the provisions of the Everglades Forever Act and Phosphorus Rule that the Court found unlawful, issuance of the permits will eliminate any possible existing noncompliance with the provisions of the Court s July 29, 2008 Order enjoining the use of those provisions. ECF No. 323 at p.97. (4) The Court s April 14, 2010 Order required EPA to commence an administrative process to withdraw FDEP s authority to issue NPDES permits for discharges into the Everglades. Entry of the 60(b) Order would eliminate this requirement, which is no longer necessary in light of subsequent developments, for the reasons explained in this Court s indicative ruling on EPA s 60(b) motion. (5) The Court enjoined FDEP from issuing new permits for discharges into the Everglades except to conform the existing STA permits. Entry of the 60(b) Order would also eliminate this requirement of the April 2010 Order, for the reasons explained in this Court s indicative ruling on EPA s 60(b) motion. 10

11 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 11 of 19 A.2. The Effect Of The Framework Agreement And The State s Plan On Case No Paragraph 8 of the Framework Agreement provides, Nothing in this Agreement governs or supersedes any requirements of the Consent Decree or other orders of the Court in United States v. South Florida Water Management District, No (S.D. Fla.), the Everglades Consent Decree case ( C.D. case ) pending before this Court, the Honorable F.A. Moreno, Chief United States District Judge, presiding. Consequently, the Framework Agreement has no direct or necessary effect on the proceedings in the Consent Decree case. However, the Framework Agreement and the State s water quality plan have the potential to substantially narrow, or eliminate, current litigation in the Consent Decree case over issues that were reserved for further proceedings by Judge Moreno in September 2011, when the Court adopted recommendations of the Special Master resolving a number of issues that had been raised in motions filed by the United States 1/ and plaintiff-intervenor, the Miccosukee Tribe of Indians. See C.D. case, Order Affirming the Special Master s January 4, 2011 Report (C.D. 1/ On July 15, 2010, the federal government filed its Motion of Plaintiff United States of America for Resolution of Liability Issues (C.D. case, D.E. 2179), seeking judicial resolution of disputes with the State Parties over water quality requirements under the Consent Decree. The special master found that certain requirements of the Consent Decree had not been achieved, and made a series of recommendations for remedial steps. See C.D. Case, D.E Both the United States and the State Parties moved for the district court to adopt those recommendations, see C.D. Case, D.E at 2, and the district court did so in its September 2011 order. Id. at

12 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 12 of 19 case, D.E. 2291), entered September 30, 2011; id., Report of the Special Master (January 4, 2011) (C.D. case, D.E. 2235). 2/ Among the issues reserved for further proceedings were the United States request under the Consent Decree to establish a maximum annual discharge limit ( MADL ), and remedies to achieve it, for discharges to the Loxahatchee National Wildlife Refuge. These issues the MADL and Refuge remedies correspond with the WQBEL contained in FDEP s draft NPDES permit and the suite of remedies for the eastern flow path incorporated in the consent order which underlie the Framework Agreement. The parties to the Consent Decree Defendants, FDEP and SFWMD ( State Parties ), and the plaintiff, the United States of America (collectively, Settling Parties ) are currently in discussions regarding the relationship between the State s water quality plan and the pending issues in the Consent Decree case. To facilitate these negotiations, Judge Moreno granted a motion filed by the State Parties, with the United States consent, to hold litigation in abeyance through July 2, See C.D. case, Order Granting State Parties Motion to Extend Abeyance to Facilitate Resolution, entered May 31, 2012 (C.D. case, D.E. 2329). 2/ The Miccosukee Tribe filed a motion for reconsideration of this order, which Judge Moreno denied on December 15, C.D. case, D.E The Tribe appealed Judge Moreno's order to the Eleventh Circuit on December 28, C.D. case, D.E Briefing in that appeal is currently scheduled to conclude on July 19,

13 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 13 of 19 As directed by Judge Moreno, the Settling Parties on July 2 filed a joint status report apprising the Court of the status of the Settling Parties productive discussions in an effort to reach agreement on the terms, conditions and projects for achieving the effluent limitation designed to meet water quality standards in the Everglades Protection Area, which include the Refuge and Everglades National Park. C.D. case, Settling Parties Joint Status Report pursuant to May 30, 2012 Order, filed July 2, 2012, at 1 (C.D. case, D.E. 2330). Also on that date, the State Parties filed another motion seeking to further extend the stay, through September 5, 2012, on grounds that the continued abeyance will aid FDEP as it moves forward with Florida s administrative process and establishes the more stringent maximum annual discharge limit for the Refuge. See C.D. case, State Parties Motion to Extend Abeyance to Facilitate Resolution, filed July 2, 2012, at 2 (C.D. case, D.E. 2331). The United States consented to that motion, but reserved the right to move to lift the abeyance if FDEP fails to meet specified milestones for finalizing the permit and consent order in the Florida administrative process. See id. at 2 (public meeting must be held, and public comment period concluded, by July 25, 2012; Notice of Intent to Issue Draft Permit must be published within 14 days following the Public Meeting, or by August 8, 2012; final permit must be 13

14 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 14 of 19 issued within 21 days following FDEP s Notice of Intent to Issue Draft Permit, or by August 29, 2012). A.3. The Effect Of The Framework Agreement And The State s Plan On The Pending Appeals Appeals of this Court s 2010 Order (11 th Cir. Nos , , and ) and this Court s 2011 Omnibus Order (11 th Cir. Nos and ) are currently stayed in the Eleventh Circuit, pending entry of the 60(b) Order by this Court and expiration of the time to appeal the 60(b) Order (including resolution of any motions that toll the time to appeal). Dkt. 651 at 5-6 (Eleventh Circuit Order of June 14, 2012). The Eleventh Circuit, in its order of June 14, 2012, also consolidated the above appeals and directed the Clerk to consolidate with them any appeals of the 60(b) Order. Dkt. 651 at 6. It also directed the Clerk of the Eleventh Circuit to issue a consolidated briefing schedule when the appeals are ready to proceed. Dkt. 651 at 6. In the Framework Agreement, FDEP agreed to file a motion to stay its Eleventh Circuit appeals (11 th Cir. Nos and ) until the NPDES and Everglades Forever Act permits and associated Consent Orders are effective and no longer subject to judicial review in State court. Thus, after entry of the 60(b) Order, FDEP will promptly file a motion to stay its appeals upon: (i) expiration of the time to appeal the 60(b) Order (including resolution of any 14

15 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 15 of 19 motions that toll the time to appeal or the effectiveness of an already filed notice of appeal) or (ii) the Eleventh Circuit entering a briefing schedule for any appeal, whichever occurs first. FDEP need not file that stay motion if the NPDES and EFA permits and associated Consent Orders are final and effective and no longer subject to judicial review in State court. The purpose of such a stay would be to allow the permitting process to be completed, and prevent unnecessary involvement of the Eleventh Circuit in matters that EPA and the State are proceeding to resolve through the NPDES permit process. As discussed above, the Court s Orders will have been satisfied once the Court enters the Rule 60(b) Order, EPA takes final action on its proposed rulemaking regarding the water quality standards applicable to phosphorus in the Everglades under the Clean Water Act, and the proposed permits and consent orders become final and effective, including conclusion of any state appeal proceedings. It is possible that, at such point, any related Eleventh Circuit appeals will be moot. B. The Status Of Revisions To The Everglades Forever Act In its Rule 60(b) motion EPA requested certain revisions to the Court s April 2010 Order that pertained to the necessary changes to the revised water quality standards in the Everglades Forever Act and Phosphorus Rule. The Court 15

16 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 16 of 19 indicated that it would grant that relief if the case was remanded from the Eleventh Circuit for that purpose. ECF No In EPA s Status Report of January 5, 2012, ECF No. 634, EPA reported that it had completed the notice and comment process for promulgating the required water quality standards regulation and was awaiting entry of the 60(b) Order in order to take final action on the proposed rulemaking for publication in the Federal Register. Now that the case has been remanded by the Eleventh Circuit, EPA will sign the notice for publication in the Federal Register taking final action on the proposed rule promptly once the Court enters the 60(b) Order. C. The Status And Goals Of Any Ongoing Discussions Between EPA And The State Of Florida, Including Any Outstanding Settlement Items EPA and the State of Florida are not currently engaged in any specific discussions regarding the proposed permit, proposed CO, or the Amended Determination, and there are no outstanding settlement items as between EPA and Florida in the instant matter. (As discussed in paragraph A.2, the United States is engaged in ongoing discussions with the State of Florida concerning resolution of outstanding issues in case No ) Of course, in their capacity as regulators, EPA and FDEP are routinely in conversation in their joint role of implementing the Clean Water Act in Florida. As it relates to implementation of the plan for restoration of water quality in the Everglades, under the Framework 16

17 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 17 of 19 Agreement, the EPA Regional Administrator for Region IV and the Secretary of FDEP have agreed to meet at least twice a year. ECF No at section B, page 4. Consistent with EPA s statutory oversight role, EPA continues to monitor the State s administrative process for issuance of the NPDES permit and consent order, and will review any changes to those documents that result from the state administrative process. D. The Final Steps Needed To Reach Full Resolution Of This Case As discussed above, after the Court enters the 60(b) Order and EPA takes final action on the proposed water quality standards rulemaking, and assuming the proposed permit and CO (as currently drafted) become final and effective in a timely fashion, full compliance with the Court s Orders will have been achieved. At that point, EPA believes that this matter will be fully resolved and anticipates that the claims raised in the Eleventh Circuit appeals might be voluntarily dismissed or dismissed as moot. Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General 17

18 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 18 of 19 July 9, 2012 By: /S/ Norman L. Rave, Jr. NORMAN L. RAVE, JR. MARTHA C. MANN Trial Attorneys Environment and Natural Resources Division U.S. Department of Justice P.O Box Washington, DC Tel: (202) (Rave) (202) (Mann) Fax: (202)

19 Case 1:04-cv ASG Document 658 Entered on FLSD Docket 07/09/2012 Page 19 of 19 CERTIFICATE OF SERVICE I hereby certify that on this 9th day of July, 2012, a true and correct copy of the foregoing document was filed electronically with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is to be served on all registered counsel of record via transmission of notices of electronic court filings generated by CM/ECF. /s/ Norman L. Rave, Jr. Norman L. Rave, Jr.