UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No Civ-Moreno

Transcription

1 UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No Civ-Moreno v. Plaintiff, SOUTH FLORIDA WATER MANAGEMENT DISTRICT, et al. Defendants. / MOTION TO VACATE CONSENT DECREE AND DISMISS WITH INCORPORATED MEMORANDUM OF LAW The South Florida Water Management District ( SFWMD ) moves to vacate the 1992 Consent Decree ( Decree 1 ) and dismiss this protracted litigation that stands today as an antiquated and inequitable vestige of a bygone era. The purpose of the lawsuit and the Decree was to bring the State into compliance with its own environmental laws. That has been done through an extraordinary array of administrative programs capped by Governor Scott s historic 2012 Restoration Strategies Regional Water Quality Plan ( Restoration Strategies ). That Plan, approved by the United States Environmental Protection Agency ( USEPA ) as part of the State s delegated National Pollutant Discharge Elimination System ( NPDES ) program has subsumed the Decree, rendering it superfluous. It is the right time to acknowledge the State parties remarkable achievements are manifest by tremendous improvement in Everglades water quality and that render continued judicial supervision unwarranted. 1 The Settlement Agreement entered as a Consent Decree (D.E. 1205) was subsequently modified (D.E. 1623). It is cited in this motion as follows: Decree at [page No.,]. 1

2 Review will be aided by an overview of the suit, the Decree and significant State achievements, which is provided before turning to standards and arguments for vacatur. I. BACKGROUND A. The 1988 Lawsuit Twenty-eight years ago, the federal government initiated this suit against its State partners in water resource management, i.e. SFWMD and Florida s Department of Environmental Protection ( DEP ), for allegedly violating State law. Its purpose was to protect Everglades National Park ( Park ) and the Loxahatchee National Wildlife Refuge ( Refuge ) (collectively the federal lands ) from being polluted by excess phosphorus in water discharged from the upstream Everglades Agricultural Area ( EAA ). Those discharges came from four pump stations, known as S-5A, S-6, S-7 and S-8, that are operated by SFWMD to divert EAA run-off southward into Water Conservation Areas ( WCA ). The pumps prevent flooding of the EAA. The Refuge is one of those WCAs, leased by SFWMD to the Department of Interior. In 1979, the State had curtailed the back-pumping of water northward from the EAA in an effort to begin restoration of Lake Okeechobee. Van Horn Decl. at 5. Back pumping moves flood waters from the EAA to Lake Okeechobee to be stored for later use. As a result of reduced back pumping, more water was held within the EAA and, in wet times, more water pumped south to the WCAs. Id. The crux of the third amended complaint in this case was the perceived lack of regulatory controls to address the ecological ramifications of that southward pumping. DEP was joined for failing to adequately regulate the pumps. B. The State s defenses The State parties counterclaimed that Everglades restoration is a joint responsibility to be shared between the State and federal governments. D.E. 401 and 411. The first to the courthouse 2

3 3 DRAFT door is not always the least at fault. The federal government encouraged development of the EAA and built the pumps SFWMD operates in the 1950 s as part of the massive U.S. Army Corps of Engineers Central and Southern Florida Project ( C&SF ) that extends from Orlando to Florida Bay. H. R. Doc. No. 643, 80th Congress, Second Sess. (1949). The C&SF comprises hundreds of miles of canals and levees managed by dozens more water control structures. Id. The land uses it supports have dramatically changed the composition and flow of water throughout central and southern Florida. The Corps shared the cost of the C&SF with the State due to the national importance of the EAA s agricultural production. Id. at pg. 5, 14. The Everglades swamp and overflow lands were granted to the State in 1850 provided the State initiated reclamation, i.e. the conversion of sawgrass swamp to farmland. Swamp and Overflowed Land Grant Act of 1850, ch. 84, 9 Stat. 519 (codified at 43 U.S.C ). The Corps designed the C&SF to pump EAA floodwaters into Lake Okeechobee and the WCAs, including the Refuge. SFWMD operates the pump stations as the C&SF local sponsor in accordance with federal regulations that ensure the federal benefits, including reclamation and flood control, are achieved. H. R. Doc. No. 643 at pg. 5, 16; pg. 11, 12. In short, the United States is equally accountable for the EAA s ecological consequences as the State parties. Another concern with the lawsuit was how it disturbed the State s more comprehensive restoration efforts that were well underway at the time it was filed. By the 1970 s the State had already begun a comprehensive research and planning effort to figure out how to save the Everglades and redress EAA run-off. In 1972, the SFWMD was created to succeed the C&SF flood control district, to provide more comprehensive stewardship of the State s water resources and add restoration of the natural systems in its mission. Fla. Stat , SFWMD s jurisdiction was drawn along hydrologic boundaries instead of political ones, to match

4 those of the C&SF and provide comprehensive water management throughout the entire region. The EAA is only part of its responsibilities. The State s early environmental initiatives are noteworthy. In 1976, a State report on the eutrophication of Lake Okeechobee made a series of recommendations to address growing water quality concerns over stormwater run-off from areas around the Lake, including the EAA. Rotha A. MacGill, Fla. Dep t of Admin., Final Report on the Special Project to Prevent Eutrophication of Lake Okeechobee (1976). That led to the 1979 curtailment of back pumping from the EAA into the Lake. The State launched technical investigations to determine how best to protect the greater Everglades ecosystem, not only the WCAs and the Park, but Lake Okeechobee, the Kissimmee River, and critical coastal estuaries. By 1983, Florida s Save Our Everglades Program was announced. In 1987, Florida s Surface Water Improvement and Management Act ( SWIM ) brought even greater vitality to comprehensive restoration. Surface Water Improvement and Management Act, ch , Laws of Fla. These programs dealt aggressively with threats to the entire ecosystem not only the federal lands. They revealed the need to modify the federal C&SF to achieve full scale restoration. By the late 1980 s, Congress directed the Corps make the changes necessary to improve the method by which water is delivered to the Park, but stopped short of authorizing a comprehensive plan. Everglades National Park Protection and Expansion Act of 1989, Pub. L. No , 104, 103 Stat. 1946, (1989). In 1988, the United States filed this lawsuit. C. The Consent Decree In 1991, after three years of acrimonious litigation, the State laid down its sword and pled for the government to partner with the State s more comprehensive approach. Saving the 4

5 5 DRAFT Everglades depended upon it. The federal government agreed and the ambitious Decree was forged. The State assumed that its ideals of mutuality and comprehensiveness would prevail. The Decree memorialized weighty aspirations. The parties pledged mutual cooperation to address both water quality and water quantity, acknowledging it was essential to implementing the actions necessary to achieve the [Decree s] commitments. Decree at 26, 17. The parties knew they needed to address more than just run-off from the EAA and committed to take all actions within their authority necessary to provide adequate flows to meet the water quantity, distribution, and timing needs of the Park and the Refuge. Decree at 12, 9. Those hydrologic factors were also known to impact phosphorus levels and, thus, flora and fauna. Van Horn Decl. at 10(a). The parties also knew the State had neither authority nor resources to address them alone. The C&SF controlled the movement and flow of the waters into and on the federal lands. The Corps agreed to make the modifications necessary to meet the Decree s objectives. Decree at 25, 15A. Before the suit was settled, Congress authorized the Corps to modify water deliveries to the Park. Expansion Act, Pub. L. No , 104.Yet, the federal government is not bound by the Decree s enforceable provisions. The Decree s enforceable obligations are set forth in its Appendices C, D and E. Each precisely tailored to redress the impetus of this case, i.e. the need to regulate water pumped from the EAA. The Decree s Appendix D directs an agreed upon Research and Monitoring Program to determine a numeric phosphorus-concentration standard and to assess performance. Appendices C and E established the Decree s two enforceable remedies. Together they comprise the control program for EAA run-off. Appendix E details an EAA Regulatory Program that requires landowners in the EAA to implement Best Management Practices ( BMPs ) to reduce phosphorus in farm run-off. Appendix C committed the State design and construct four Stormwater

6 Treatment Areas ( STAs ) to remove excess nutrients from the EAA run-off not otherwise captured by the BMPs before the water is pumped into the WCAs. The State parties compliance was to be measured by long-term numeric phosphorus concentration limits that are determined through the application of statistical equations contained in Appendices A and B. The concentration limits for phosphorus in the Park are governed by Appendix A. The limits for the Refuge are in Appendix B. An exceedance of the limits will constitute a violation unless a Technical Oversight Committee ( TOC ) established in the Decree determines it was due to error or extraordinary natural phenomena. Decree at B-5. The TOC comprised technical representatives appointed by the parties to plan, review and recommend all research, monitoring and compliance. Id. at 26, 18. The compliance measures were not intended to be punitive. No penalties or fines are imposed for a violation. The limits were intended instead to provide feedback. If the limits are not met, the Decree calls upon the TOC to determine why and, if appropriate, recommend additional remedies, i.e. determine if there is a need for more STAs and BMPs. Decree at 14, 10. Those are the limited remedies available under the Decree and, thus, to the Court. When a violation arises from another cause, the Decree does not redress it. The parties originally contemplated meeting the long term concentration limits by Decree at 10-12, 7 & 8. In 1995, that goal was extended to The Decree otherwise lacks an expiration date. It is also silent as to: (1) any process for ending it; (2) how long compliance must be maintained to satisfy it; and (3) what if, as the situation now stands, circumstances beyond State control risk the parties ability to achieve the compliance measures in all places at all times for the foreseeable future. D. The State has fully and faithfully performed its obligations under the Decree 6

7 The State has maintained unparalleled leadership of Everglades restoration. It has persisted despite significant obstacles and extraordinary and unforeseen expense. The State, nonetheless, continues to do more than ever contemplated by the Decree and plan for even more. 1. Appendix D: Planning, Research and Monitoring In 1991, the legislature paved way for settlement of this case with passage of the Marjorie Stoneman Douglas Act. Fla. Laws ch ; Fla. Stat (1991). That Act prioritized completion of an Everglades SWIM plan, established the WCAs and Park as the Everglades Protection Area ( EPA ), created a program for permitting all SFWMD structures discharging into the EPA, and provided all-important funding mechanisms and eminent domain authority for SFWMD to acquire lands needed for the STAs. Thus, even before the matter was settled, Florida continued moving expeditiously to redress issues raised by the case. By 1992, the SFWMD completed the comprehensive Everglades SWIM plan and developed a BMP Rule designed to reduce phosphorus discharges. DEP gave notice of intent to permit every facility discharging into the EPA, not just those subject to this suit. These efforts were confounded by an onslaught of litigation, virtually dozens of administrative challenges by EAA landowners. Mediation of those suits culminated in 1993 with a Statement of Principles that have guided restoration ever since. Statement of Principles (July 1993). Those principles reaffirmed Florida s commitment to implement a detailed plan with specific construction schedules for STAs and to reduce phosphorus through BMPs. The Statement of Principles was the basis for Florida s Everglades Forever Act ( EFA ), which furthered the development and implementation of comprehensive, innovative solutions to Everglades restoration. Fla. Stat The EFA s restoration program authorized the Everglades Construction Project (i.e. the STA construction), hydropattern restoration projects, 7

8 further research and monitoring, strict regulatory programs and discharge limits, and exotic species control. These programs far exceeded the relief sought in this case. Implementation of the EFA continues to be monitored by a Joint Committee of the Florida Legislature. Fla. Stat SFWMD established a Water Resources Advisory Commission ( WRAC ) comprised of governmental, tribal, business, agricultural, environmental, and public interest representatives to provide input and recommendations regarding activities needed to restore the greater South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood control. SFWMD Res. No (2001). 2 The State s collaborative restoration efforts are unrivalled. The EFA is a prime example of the State us[ing] the full scope and authority of its planning, regulatory, permitting, enforcement and public works powers to bring waters in the Park and Refuge into compliance as contemplated by the Decree. See, Decree at 20, 13. Under its auspices and the Research and Monitoring Program contemplated in Appendix D, the State developed and adopted the USEPA approved Phosphorus Rule. Fla. Admin. Code r That Rule provides State numeric standards necessary to protect flora and fauna throughout the EPA, including the WCAs and the Park. Both USEPA and the Decree s TOC reviewed and approved the Phosphorus Rule. The Phosphorus Rule establishes monitoring networks that encompass more areas of the Everglades than required by the Decree. Van Horn Decl. at 3(f). The ecosystem is being exhaustively researched and monitored. The State continues its restoration efforts far beyond the southern Everglades, including the Kissimmee River and coastal regions. Fla. Stat Governance and planning involve a myriad of federal, state, regional, and local agencies, including 16 counties, 122 municipalities, two tribes, special districts, six metropolitan planning organizations, five regional planning councils, five major state environmental planning and regulatory agencies, and 11 federal agencies. 8

9 These nationally and internationally celebrated efforts are projected to ensure comprehensive and long term Everglades restoration. 2. EAA Regulatory Program (Appendix E) The EAA regulatory program and the agricultural communities response have also been highly successful. The SFWMD partnered with the EAA farmers to develop and implement a BMP permitting program that more than doubled the phosphorus reductions mandated by the Decree. Van Horn Decl. at 3(b). Even opponents of agriculture in the historic Everglades have conceded SFWMD s BMP program has far surpassed its phosphorus reduction goals. Fla. Audubon Soc y v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790 (Fla. 2d DCA 2015). The BMP program has been incorporated into the NPDES program discussed next. 3. Stormwater Treatment Areas (Appendix C) The STA projects proved to be the most challenging. The parties grossly underestimated the complexity and, thus, the number and size of STA s required to meet discharge standards. The Decree contemplated an STA for each of the basins served by the S-5A, S-6, S-7 and S-8, totaling 34,200 acres. Decree at 15, Table 1. In response to ongoing studies, total STA acreage was increased in 1995 to 40,452. Today, over 57,000 acres of STAs and associated facilities are underway. Van Horn Decl. at 7. The STAs require federal NPDES permits that are administered by DEP under supervision of the USEPA. The NPDES permits impose strict Water Quality Based Effluent Limitations ( WQBELs ) at the point of discharge. Fact Sheet for State of Florida Industrial Wastewater Facility Permit FL (Sept. 10, 2012). 3 Thus, every discharge must meet or exceed water 3 Available at 9

10 quality standards, in this case the Phosphorus Rule, at the point of discharge. As a result, the NPDES virtually guarantees EAA discharges will never again menace the Everglades. That was demonstrated in 2004, when the NPDES permits for the STAs were challenged before United States District Court Judge Alan Gold. Miccosukee Tribe v. United States, Case No (S.D. Fla.). The court found the permitted schedule for compliance with the WQBELs exceeded the time allowed under the Clean Water Act. The permits were remanded to the agencies for reconsideration. Under Governor Scott s leadership, the State and USEPA reached consensus on new strategies for improving EAA discharges after almost a year of scientific and technical discussions. The comprehensive $880 million program known as Restoration Strategies was adopted as a condition of the NPDES permits. Restoration Strategies included even more expanded STAs and additional water storage through the construction of flow equalization basins ( FEB ) in the EAA. Van Horn Decl. at 7. Those impoundments will hold stormwater in the EAA and help optimize the STA performance for those waters released southward. Restoration Strategies also expanded upon the Decree s research and monitoring with a Science Plan crafted by SFWMD engineers and scientists in coordination with representatives from DEP, USEPA, the Corps, the Park and Refuge. Restoration Strategies was designed to eliminate the EAA as a source of unwanted phosphorus to the Everglades in phases to be completed by It is universally recognized that goal cannot feasibly be accomplished any earlier. Id. at 8. If the Project is delayed or it does not meet its objectives, DEP and USEPA, and ultimately the courts through citizen suit provisions, have full authority under the Clean Water Act to amend and enforce the NPDES permits and require a host of potential remedies. Indeed, NPDES includes but is not limited to the STA and BMP remedies available under the Decree. 10

11 EPA has concluded the NPDES permits, through the WQBEL and associated projects, will bring STA discharges into compliance with the Everglades standards. Miccosukee, Case No (S.D. Fla.) D.E. 650, (USEPA June 13, 2012, to DEP). The NPDES WQBEL was also adopted as the lower maximum annual discharge limit ( MADL ) required by Appendix B of the Decree. D.E at 12-13, Under the Governor s initiative the Everglades will remain protected from external influence of the EAA for generations to come. The parties no longer have to rely upon the Decree to redress EAA run-off. Van Horn Decl. at 11. II. ARGUMENT The Decree expressly reserves jurisdiction for any of the parties... to apply to the Court at any time for any appropriate modification. Decree at 29, 22. Termination is also authorized by Federal Rule of Civil Procedure 60(b)(5) upon showing the Decree has been satisfied... or applying it prospectively is no longer equitable. Subsection 60(b)(6) provides ever greater latitude to vacate for any... reason that justifies relief. Since a consent decree is a form of contract, the same rules used to interpret a contract apply to them. Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000). Like contract duties, consent decree duties should be discharged when, as here, they are substantially performed or made impracticable through no fault of the obligated party. These standards bestow broad discretion upon this Court to judge whether, in equity and good conscience, to end the Decree. A decision to vacate is subject to the abuse of discretion standard. The Supreme Court informs that Rule 60(b)(5) provides a flexible, equitable standard for modification or termination of consent decrees. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992). But that federal consent decrees against state and local government entities must be vacated if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest." Horne v. Flores, 557 U.S. 433, 447 (2009). Once 11

12 a party carries its burden of showing relief is warranted by changed factual or legal circumstances, a court abuses its discretion if it refuses to modify a decree in light of such changes. Agostinin v. Felton, 521 U.S. 203, 215 (1997). This motion carries that burden by demonstrating the State parties success at achieving the Decree s objective. The court should be guided as well by those principles of federalism that disfavor the protracted oversight of State government by the federal judiciary. Rule 60(b) plays a particularly important function when, as here, a federal decree forces institutional reforms upon State and local actors. Horne, 557 U.S. at 447. Federal decrees inevitably intrude upon local governance, often restraining State prerogatives for many years. Years that frequently bring about changed circumstances changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights that warrant reexamination of the original judgment. Id. at 448. The Supreme Court in Horne emphasized heightened federalism concerns with judicial decrees that improperly deprive future officials of their designated legislative and executive powers. Id. at 449. Concerns that are at their peak when a decree eviscerates a State s discretionary authority over its own programs and budgets and forces state officials to reallocate state resources and funds. Id. at 448. States and localities "depen[d] upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources." Where "state and local officials... inherit overbroad or outdated consent decrees that limit their ability [to] respond to the priorities and concerns of their constituents," they are constrained in their ability to fulfill their duties as democratically elected officials. Id. at 449 (alteration in original) (citations omitted). Accordingly, decrees against a State should be imposed only as long as necessary to fulfill a legitimate federal purpose. Courts must ensure 12

13 13 DRAFT "responsibility for discharging the State's obligations is returned promptly to the State and its officials" when the circumstances warrant. Frew v. Hawkins, 540 U.S. 431, 442 (2004). These principles of federalism and judicial restraint take concrete form in this case. The Decree has stood over 24 years. It constitutes a momentous extension of federal authority over the State s traditional rights and responsibilities for land and water resources. See, e.g., 33 U.S.C. 1251(b) & (g) (codifying State primacy over land and water resource management). Unlike most institutional reform cases that compel compliance with federal laws, the Decree in this case mandates the development and enforcement of State laws. The federal imposition upon the State is palpable. With these background principles in mind, a multitude of reasons for vacatur are presented below in the context of two overarching propositions. First, the Decree has been satisfied. Second, as applied, the Decree offends principles of equity, federalism and judicial restraint. Absent any ongoing need to keep it in place, the Decree should end now. A. The Decree has been satisfied and no longer serves a proper purpose A critical question presented by this motion is whether the objective of the Decree has been achieved. Horne, 557 U.S. at 450. Governor Scott s historic 2012 Restoration Strategies put in place once and for all the necessary suite of projects to achieve cleaner water for the Everglades. The Governor s $880 million initiative completes the remedies contemplated by the Decree. The objective of this case and the Decree to bring EAA discharges into compliance with State laws was satisfied when USEPA approved the Restoration Strategies plan. With that more durable remedy in place, continued enforcement of the Decree is not only unnecessary, but improper. Id. A two part inquiry proves the point. The Court must first confirm the enforceable objective of the Decree and, then, whether that has been satisfied. 1. The purpose of the Decree

14 14 DRAFT The purpose of the Decree has often been misconstrued. It is a unique aberration, appearing to be one thing, while being another. What Judge Hoeveler recognized to be a rare avis. D.E The Decree speaks of comprehensive restoration, but tailored its available remedies to a more specific purpose. The State s performance must be judged and satisfaction determined by reference to that enforceable purpose. Resisting vacatur misses that central point. Albeit, the Decree codifies ambitious pledges of mutual cooperation to guarantee water quality and water quantity for the fragile ecosystems of the Refuge and Park. Each party committed to do everything in their respective powers to comprehensively restore those lands. The settlement was touted to be a framework for long-term protection of the Everglades. D.E (United States Motion for Approval at 1). But, the Decree is after all a contract and, despite those lofty recitals, the enforceable remedies of the Decree remain limited to the imposition of STAs and BMPs to redress inflows from the EAA. Only the State is bound. As a result, the Decree s general recitals and aspirational declarations remain outside the jurisdiction of the Court to enforce and not the fair measure of satisfaction. The parties settled for comparably modest, achievable remedies. The State obligated itself to develop sufficient regulatory controls to redress the impetus for this lawsuit. The essence of the Decree was bring the SFWMD pumps that discharge water from the EAA into compliance with State law. United States v. Fla. Water Mgmt. Dist., 28 F.3d 1563, 1570 (11th Cir. 1994) (appeal of the order approving the Decree). Two remedial programs were employed to that end: (1) an EAA regulatory program required farmers to implement BMPs that reduce the amount of phosphorus in run-off from their lands; and (2) the SFWMD committed to construct STAs to clean that run-off before being discharged from the EAA. Those are the only enforceable remedies available under the Decree. 2. Satisfaction of the Decree

15 15 DRAFT A lot has transpired since adoption of the Decree. The State parties have exceeded expectations. Billions of dollars have been invested in the Everglades. The ecosystem is being revived through the most comprehensive and stringent suite of water quality programs in the Nation. Van Horn Decl. at 9. Water quality standards have been set throughout the Everglades. The SFWMD partnered with EAA farmers to develop a robust BMP program that has reduced phosphorus from the farmlands by more than double what the Decree required. The District has completed more STAs than anticipated and committed to even more. Water quality in the Everglades is now generally excellent, regularly meeting or exceeding standards established under the Decree. Id. at 3. In those few instances in the past 5 years that the Decree s long-term limits were exceeded, it was by a miniscule amount and not due to the EAA. As a result, the parties unanimously agreed that no additional remedies were needed since the NPDES permits and the Restoration Strategies initiative were already in place. Id. at 3(g). Legal developments have intervened as well. The most significant being the advent of the NPDES permits for the STAs. Those permits have brought the SFWMD pumps into full compliance with State and federal laws. 33 U.S.C. 1342(k) (discharges permitted under NPDES are lawful). The only enforceable objective of the Decree has, thus, been meet. It bears reminding, that indefinite federal oversight of state institutions is disfavored, and a federal court should terminate supervision once the defendant comes into compliance with the law. Johnson v. Florida, 348 F.3d 1334, 1341 (11th Cir. 2003). The NPDES program has thoroughly overtaken the Decree and subsumed governance of its remedial programs. Van Horn Decl. at 8. Current plans for additional STAs were, tellingly, developed under the NPDES program, not through the TOC process established by the Decree. The State s plans are universally accepted as the long-term solution to the EAA run-off problem that sparked this lawsuit. Id. The parties agree they are being implemented as expeditiously as

16 16 DRAFT possible. Id. If they do not succeed, the NPDES program will require more remedies. That program is not limited, as is the Decree, to only STAs and BMPs. With NPDES permits and other programs lastingly in place, discharges from the SFWMD s pumps no longer pose a threat to the Everglades. There will never be another need to resort to the Decree for remedial action. The usefulness of this lawsuit lies in the past. By any reasonable measure, the State parties have satisfied their obligations under the Decree. B. The Decree stands inconsistent with principles of equity and federalism The SFWMD has remarkably achieved the strict long term limits set forth in Appendices A and B for three straight years. Van Horn Decl. at 3(g). Given that the Decree does not call for them to be sustained for any specified duration, that itself satisfies its terms. Restoration Strategies is working. There remain, however, many factors aside from the EAA discharges that threaten water quality in the area. Id. at 10(a). Factors largely out of the State parties control. The equations of Appendices A and B establish long-term limits that are not a fair measure or predictor of the State s performance. Id. at 10. The long-term limits were to be met through a joint effort, not through the State s remedial programs alone. They are applied at monitoring stations in the Refuge s interior marsh and at the Park border miles away from the EAA pumps and, thus, account for everything that influences phosphorus and its effects upon the Everglades, not just EAA inflows. Id. Those influences are many. Local hydrology and disturbances, including the reflux of phosphorus already in the soil, undermine the parties confidence in consistent future compliance. Some experts have estimated that even after the parties restoration efforts are complete, those conditions will prevent consistent achievement of the long term phosphorus limits for decades if not centuries. Id. at 10(a). Moreover, many hydrologic assumptions used to develop the compliance measures no longer pertain. Id. at 10(b).Water is put into the Park and Refuge, in different places, in different

17 quantities and at different times than anticipated by the Decree. Id. The equations used to calculate them have become antiquated and unreliable measures of what concentrations are appropriate and desirable for the ecosystem. Id. In short, consistent compliance with Appendices A and B was aspirational, as it turns out not enforceable. It is not something the State parties can control or that all the BMPS or STAs can alone ensure. Reading the Decree to require persistent and long-term compliance with the equations in Appendices A and B would render it essentially interminable. Finally, but not least, the Decree wastes public resources and diverts public attention from more current, pressing priorities for the Everglades restoration undertaking. With the NPDES permits in place the Decree has become dormant. The few activities, mainly quarterly TOC meetings, have been reduced to agency representatives evaluating at great expense infinitesimal and infrequent variations in phosphorus levels that amount to trivial exceedances having absolutely no relationship to real world impacts upon the ecology and that ignore the excellent quality of Everglades water today. All while eyes are averted from significant problems and important programs that remain delayed and under resourced. Yet, the parties remain compelled to continue expending useless effort and resources on a Decree that is outdated and has no prospective application, rather than putting their efforts toward more pressing challenges confronting the Everglades ecosystem. Id. at 12. The Decree will continue to misdirect resources from the parties until it terminates. As long as it remains in place, the Everglades and the public will not be the better off for it. To the contrary, vacating the Decree will be a signal, celebratory moment toward the goal of maintaining the Everglades for our descendants. WHEREFORE, the Court should vacate the Decree and dismiss this case forthwith. 17

18 Request for Oral Argument The SFWMD requests oral argument to assist the Court in resolving important questions presented by this motion and to decipher the technical setting in which they arise. Despite its lengthy background and technical history, this motion turns upon two dispositive, purely legal and straightforward arguments for vacatur. First, the Decree was satisfied when the SFWMD pumping stations came into full compliance with state and federal law. Second, the success of the SFWMD's EAA BMP program and the advent of NPDES permits for the STAs obviated any prospective use for the Decree. Those achievements render the Decree superfluous and ongoing judicial supervision unwarranted. Oral argument will allow the SFWMD to provide a roadmap for the Court to economically navigate the apparent complexities of this case and clarify its relatively simple dispositive legal arguments. The SFWMD estimates arguments could be completed in one hour. Local Rule 7.1(3) Pretrial Conference Certification This certifies that counsel for the movant has conferred counsel for all parties in a good faith effort to resolve the issues presented by this motion and has been unable to do so. SOUTH FLORIDA WATER MANAGEMENT DISTRICT By: /s/ James E. Nutt James E. Nutt Florida Bar No.: Gun Club Road MSC-1410 West Palm Beach, Florida (561) jnutt@sfwmd.gov 18