Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 1 of 12 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, and FRIENDS OF THE EVERGLADES, vs. Plaintiffs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division Consolidated Case No. 04-21448-CIV-GOLD/Goodman UNITED STATES OF AMERICA, et al., and Defendants, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW HOPE SUGAR CO., and OKEELANTA CORP., Intervenor/Defendants. / STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION S JULY 9, 2012 STATEMENT IN RESPONSE TO ORDER REQUIRING SUBMISSIONS The State of Florida Department of Environmental Protection ( Department or FDEP ) hereby responds to this Court s June 21, 2012 Order Setting Hearing; Requiring Filing, which directed each party to submit a brief statement stating its position, if any, on the effect of the framework agreement and the State s Plan on this case, Case No. 08-1886 [sic], and any related pending appeals; the status of revisions to the Amended Everglades Forever Act, as required by my April 14, 2010 Order; the status and goals of any ongoing discussions between the EPA and the State of Florida, including any outstanding settlement items; and the final steps needed to reach full resolution of this case. DE 652 at 3.
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 2 of 12 This response consists of a summary of the State s Water Quality Technical Plan and the permit process implementing the Plan, as well as a brief statement on each of the categories on which the Court has requested a position. I. The State s Water Quality Technical Plan and Implementing Permit In close collaboration and cooperation with the U.S. Environmental Protection Agency ( EPA ), the Department and the South Florida Water Management District ( District ), acting on behalf of Governor Scott and the State of Florida, have worked diligently to develop a scientifically-sound and technically-feasible course of action for achieving water quality requirements in the Everglades. The culminating strategy represents a significant and historic milestone in the long-standing effort to restore the Nation s Everglades. The State s Water Quality Technical Plan (hereinafter State s Technical Plan ) is presented in the Restoration Strategies Regional Water Quality Preliminary Plan and supporting documents, and has been filed with the Court at DE 654-6. A. Features of the State s Strategy Enforceable Permit and Consent Order: The State s Technical Plan would be accomplished through issuance by the Department to the District of a National Pollution Discharge Elimination System ( NPDES ) watershed permit and associated consent order 1 for the operation and maintenance of the Everglades stormwater treatment areas ( STAs ). See DE 654-1, 654-3. The final permit will be established through operation of Florida s administrative procedures, which are initiated by FDEP noticing the proposed issuance of a permit and are more 1 Simultaneously, a comparable EFA State watershed permit and associated consent order would be issued under the State s Everglades Forever Act. Everglades Forever Act, Section 373.4592, Fla. Stat. 2
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 3 of 12 fully described below. 2 The draft NPDES permit and proposed associated consent order, which have been formally noticed by publication, incorporate a water quality-based effluent limit ( WQBEL ) 3 and a suite of additional projects that working in conjunction with the existing STAs would achieve the WQBEL. See DE 654-1, 654-3. Pursuant to the draft NPDES permit and proposed associated consent order, the District will invest an estimated $880 million to construct 6,500 acres of new STAs and 110,000 acre-feet of new water storage in the form of flow equalization basins ( FEBs ). The District also would be required to develop and implement a Science Plan in accordance with the terms of the proposed consent order. DE 654-3 at 11-13. 4 The District must develop the Science Plan in consultation with technical expert representatives designated by FDEP and EPA. These scientists must meet at least twice annually to assess water quality and progress in achieving the deadlines in the permit, identify the critical 2 The Framework Agreement provides: If the NPDES permit provisions are substantively modified as a result of... [a] challenge [to the permit] then before the NPDES permit becomes final FDEP will submit the permit to USEPA for review in accordance with the MOA. DE 650-2 at 3. 3 EPA has determined this WQBEL to be consistent with the Amended Determination, noting: In one important respect, the State s alternative WQBEL is slightly more protective than the WQBEL contained in the EPA s A[mended] D[etermination]. DE 650-3 at 6 (emphasis added). 4 EPA has observed: The EPA believes that the monitoring and science process will provide a foundation for examining whether progress toward the WQBEL is occurring at the pace expected and, if not, to identify mid-course corrections needed to ensure its achievement The revised permit includes a specific suite of monitoring provisions to require reporting of STA performance twice a year (six-month annual TP FWM). These provisions would become effective once the corrective actions under the consent order for a given flow path are completed... Of particular interest is a better understanding of design and operations that sustain outflow concentrations at low phosphorus concentrations (<20 ppb).the EPA expects the complex scientific process of model re-calibration, as well as results generated by a re-calibrated model, would be the subject of discussions with the science representatives. DE 650-3 at 10-11. 3
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 4 of 12 factors governing phosphorus treatment performance, identify needed research and evaluate the results of such research. Additional Water Quality Projects: The projects are divided into three flow paths Eastern, Central and Western and consist of FEBs, STA expansions, and associated infrastructure and conveyance improvements. The State s Technical Plan summarizes the project features planned for each flow path: The Eastern Flow Path contains STA-1E and STA-1W. The additional water quality projects for this flow path include an FEB in the S-5A Basin with approximately 45,000 acre-feet ( ac-ft ) of storage and an STA expansion of approximately 6,500 acres (5,900 acres of effective treatment area) that will operate in conjunction with STA-1W. The Central Flow Path contains STA-2, Compartment B and STA-3/4. The additional project is an FEB with approximately 54,000 ac-ft of storage that will attenuate peak flows to STA-3/4, and STA-2 and Compartment B. The Western Flow Path contains STA-5, Compartment C and STA-6. An FEB with approximately 11,000 ac-ft of storage and approximately 800 acres of effective treatment area (via internal earthwork) within STA-5 are being added to the Western Flow Path. DE 654-6 at 4, 12 (map). STAs are wetland marsh systems that utilize biological processes to reduce phosphorus concentrations in order to achieve the WQBEL. When first implemented on the scale needed to control phosphorus in the Everglades, STAs were a new technology. Over the past 20 years, the District has continuously improved upon their construction, operation and maintenance, making extensive changes therein in light of experience. STAs function better, however, when the flow of water through them is relatively stable and consistent water levels are maintained. DE 650-3 at 7. Dryout of STAs has caused substantial problems in release of phosphorus in the soils. 5 5 As EPA has observed: When STAs dry out and are then re-wetted, phosphorus can be released from the soils and re-enter the surface water. DE 650-3 at 7. 4
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 5 of 12 FEBs are designed to store water prior to delivery to the STAs and to optimize the STAs performance by maintaining more consistent water levels and vegetation, and avoid dryout. Id. As with STAs on initiation of Everglades restoration, FEBs on the scale proposed in the State s Plan are a new technology with regard to Everglades restoration and as yet, un-tested. Funding: The State has carefully analyzed the financial requirements of the additional water quality projects. Specifically, the District has identified both the costs associated with these projects and the sources of funding sufficient to implement them. The Department has reviewed the District s financial projections and has determined that the District s financial plan is reasonably attainable and thus that the District will be able to timely fund the proposed projects and meet its commitments under the consent order associated with the permit. B. Implementation of the NPDES Permit and Proposed Consent Order By letter dated June 5, 2012, the Department submitted a revised NPDES permit, associated proposed consent order and supporting documentation to EPA, DE 649, to respond to EPA s objections to earlier permit documents, which had been deemed submitted for review purposes by this Court s April 26, 2011 Omnibus Order, DE 585. On June 13, 2012, EPA sent FDEP an extensive document (at DE 650, referenced above), which stated that the revised NPDES permit met its prior objections and that the permit and proposed associated consent order, once final, would meet the water quality goals set forth in its Amended Determination. See DE 650, 650-1, 650-3. Accordingly, EPA stated that the authority to issue the NPDES permit for the Everglades would remain with the Department. DE 650-1 at 3. EPA noted that it will review the permit that the Department submits for public comment. Id. On June 20, 2012, the Department published a Notice of Draft and Notice of Public Meeting for the revised NPDES permit and proposed consent order pursuant to its administrative procedures requiring public 5
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 6 of 12 notice and comment. 6 See DE 653. The Department also formally submitted the draft NPDES permit and proposed consent order to EPA for review pursuant to its 2007 Memorandum of Agreement with the Agency and EPA s implementing regulations under the Clean Water Act ( CWA ). DE 653-1. The Public Meeting on the draft NPDES permit and proposed consent order is scheduled for July 25, 2012, and the Department will accept public comments up through the close of that meeting. Subsequent to public notice and comment, the Department will prepare a response that considers and addresses all significant comments on the draft permit raised during the public comment period or during the public meeting and will specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change. Thereafter, a Notice of Intent to Issue the permit and consent order will be published which will allow substantially-affected persons an opportunity to request an administrative proceeding under the Florida Administrative Procedure Act. II. Effect of the State s Plan and the Framework Agreement The Department and EPA have executed a Framework Agreement, which was submitted by FDEP in support of its revised NPDES permit package and Technical Plan, DE 649-2 at Tab 9, and was finalized by EPA as part of its response to the State s Technical Plan and the revised NPDES permit/consent order. See DE 650. The Framework Agreement is filed with this Court at DE 650-2. The Framework Agreement confirms the Department and the EPA s commitments to Everglades restoration as set forth in the State s Technical Plan, draft NPDES permit and proposed consent order, and confirms the framework of restoration contemplated. 6 The Notice, draft permit and supporting documents are also available on FDEP s website at http://www.dep.state.fl.us/water/wqssp/everglades/ecp-sta.htm. For informational purposes, FDEP also noticed the corresponding draft EFA permit and proposed consent order, which also will be necessary for the construction of the additional water quality projects. 6
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 7 of 12 A. Effect On this Case The Department submits that the State s commitment to its rigorous and enforceable Technical Plan comports with this Court s directives, satisfies the requirements of the CWA and will resolve this case. Specifically, the Department submits that the State s Technical Plan satisfies the requirements of the Court s injunction against the Department in Paragraph 5 of the April 14, 2010 Order. DE 404 at 46-47. As EPA has acknowledged, the draft NPDES permit and proposed consent order comply with the CWA, its implementing regulations, the Court s Orders and EPA s Amended Determination. 7 Therefore, the injunction against FDEP s issuance thereof is due to be dissolved. B. Effect On the Judge Moreno Litigation The Framework Agreement has no effect on Case No. 88-1886 (the Judge Moreno Litigation ). As stated therein: Nothing in this Agreement governs or supersedes any requirements of the Consent Decree or other orders of the Court in United States v. SFWMD, No. 88-1886-CIV-MORENO (S.D. Fla.). DE 650-2 at 3. However, the Department and the District, as the State Parties in the Judge Moreno Litigation, continue to engage in discussions with the United States, the plaintiff in that case, regarding issues associated with the Consent Decree. To facilitate these ongoing discussions and to aid them in moving forward with the State s administrative permit process, the State Parties with the consent of the United States asked Judge Moreno to continue the abeyance of that litigation until September 5, 2012. See DE 2331 in the Judge Moreno Litigation. 7 We believe that these aspects of the FDEP submission collectively would meet the water quality objectives of the A[mended] D[etermination], have a sound technical basis and establish an enforceable framework for ensuring compliance with the CWA and its applicable regulations. DE 650-3 at 3. 7
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 8 of 12 C. Effect On Pending Appeals Pursuant to the Eleventh Circuit s June 21, 2012 Order granting this Court limited remand, the Department s appeals of this Court s April 14, 2010 and April 26, 2011 Orders are stayed. The appeals will remain stayed pending this Court s issuance of the Indicative Order, and continued to be stayed thereafter pursuant to the Framework Agreement. The Eleventh Circuit will consolidate any subsequent appeal therefrom with the existing appeals, and, when and if the stay is lifted, issue a briefing schedule. DE 651. In the Judge Moreno Litigation, the Miccosukee Tribe has appealed the District Court s Order Affirming the Special Master s January 4, 2011 Report, DE 2291, to the Eleventh Circuit. See Case No. 12-10196 (11th Cir.) ( Tribe s Appeal ). The State s Technical Plan addresses water quality in the entire Everglades Protection Area, including WCAs 2 and 3, which are property interests that support the Tribe s limited intervention in the Judge Moreno Litigation. Nevertheless, the merits raised by the Tribe address the interpretation of the Consent Decree and, as such, are not affected by the State s Technical Plan or the Framework Agreement. The State Parties filed their response brief in the Tribe s Appeal on July 5, 2012. The Tribe s reply brief is due to be filed with the Eleventh Circuit on July 23, 2012. III. The Status of Revisions to the Amended Everglades Forever Act The Court s April 14, 2010 Order directed EPA, through the Amended Determination, to require the State of Florida to amend the Everglades Forever Act and Phosphorus Rule. DE 404 at 45-46. Consistent with this Court s April 14, 2010 and April 26, 2011 Orders, and the proposed language in Attachments B and C of the Indicative Order, the EPA also issued a proposed rulemaking that identifies the provisions that are not applicable water quality standards for purposes of the CWA. See 76 Fed. Reg. 38,592 (July 1, 2011). The EPA has expressed its 8
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 9 of 12 position that finalizing its proposed rule would not be appropriate until this Court issues the Indicative Order. See DE 634 at 3. As described in the July 1, 2011 Notice to this Court, DE 609, FDEP s proposed amendments to the Phosphorus Rule based on the proposed language in Attachment 2 of the Indicative Order at DE 585-2 also remain pending. See DE 609 at 14-15. Likewise, the Florida Legislature has not enacted any statutory amendments to the Everglades Forever Act. Notwithstanding the status of the amendments, the State submits that the State s Technical Plan, draft NPDES permit and proposed associated consent order do fully implement the water quality standards as envisioned in the Court s April 14, 2010 and April 26, 2011 Orders and the proposed Indicative Order. IV. Ongoing Discussions with EPA The State is in communication with EPA on the administrative process; it is not engaged in ongoing substantive discussions with EPA with respect to this case. The Department submits that no further discussions with EPA are necessary because matters raised by the various Orders of this Court have been substantially resolved. Notwithstanding the resolution of the claims before this Court, the Department will continue to collaborate on the implementation of the draft NPDES permit and proposed associated consent order pursuant to the State administrative process, the 2007 MOA, the CWA regulations, and the Framework Agreement. 9
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 10 of 12 RESPECTFULLY SUBMITTED this 9th day of July, 2012. HOGAN LOVELLS US LLP By: /s/ Parker D. Thomson Parker D. Thomson Florida Bar No. 081225 parker.thomson@hoganlovells.com 200 South Biscayne Boulevard, 4 th Floor Miami, Florida 33131 Tel: (305) 459-6500 Fax: (305) 459-6550 James T. Banks HOGAN LOVELLS US LLP Admitted Pro Hac Vice james.banks@hoganlovells.com 555 13th Street, NW Washington, DC 20004 Tel: (202) 637-5802 Christopher M. Kise FOLEY & LARDNER LLP Admitted Pro Hac Vice 106 East College Avenue, Suite 900 Tallahassee, FL 32301 Tel: (850) 513-3367 Fax: (850) 561-6475 Kenneth B. Hayman Senior Assistant General Counsel Florida Bar No. 0094250 Kenneth.Hayman@dep.state.fl.us David A. Crowley Senior Assistant General Counsel Florida Bar No. 0227994 David.Crowley@dep.state.fl.us 3900 Commonwealth Blvd., MS# 35 Tallahassee, FL 32399-3000 Tel: (850) 245-2242 10
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 11 of 12 Charles A. De Monaco Admitted Pro Hac Vice FOX ROTHSCHILD LLP 625 Liberty Avenue, 29th Floor Pittsburgh, PA 15222 Tel: (412) 394-6929 Counsel for State of Florida Department of Environmental Protection 11
Case 1:04-cv-21448-ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 12 of 12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 9, 2012, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using CM/ECF. Copies of the foregoing document will be served upon interested counsel either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By: /s/ Parker D. Thomson 12