Canter, Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Petitioner Florida Audubon Society:
Thomas E. Bishop, Esquire Michael G. Tanner, Esquire Charles H. Hardage, Esquire Tanner Bishop
One Independent Drive, Suite 1700 Jacksonville, Florida 32202-5015
Anna H. Upton, Esquire Anna H. Upton. P.L.
9005 Eagles Ridge Drive Tallahassee, Florida 32312-4046
For Respondent Sugar Cane Growers Cooperative of Florida:
Gary V. Perko, Esquire Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32314-6526 For Respondent Sugar Farms Co-op:
Silvia Morell Alderman, Esquire Thomas A. Range, Esquire Akerman Senterfitt
106 East College Avenue, Suite 1200 Tallahassee, Florida 32301-7741
Matthew Coglianese, Esquire Gabriel Nieto, Esquire
Rasco, Klock, Reininger, Perez, Esquenazi, Vigil, & Nieto
283 Catalonia Avenue, Suite 200 Coral Gables, Florida 33134-6714
For Respondent United States Sugar Corporation:
Luna E. Phillips, Esquire Rick J. Burgess, Esquire
Gunster, Yoakley & Stewart, P.A.
450 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301-4206
Irene Kennedy Quincey, Esquire Pavese Law Firm
4524 Gun Club Road, Suite 203
West Palm Beach, Florida 33415-2815 For Respondent South Florida Water Management District:
Jeffrey A. Collier, Esquire Kirk L. Burns, Esquire
Douglas H. MacLaughlin, Esquire
South Florida Water Management District 3301 Gun Club Road, MSC 1410
West Palm Beach, Florida 33406-3007
STATEMENT OF THE ISSUE
The issue to be determined in this case is whether Respondents, United States Sugar Corporation (“USSC”), Sugar Farms Co-op (“SFC”), and Sugar Cane Growers Cooperative of Florida (“SCGC”) (collectively “the Applicants”) are entitled to the Everglades Works of the District permits (“WOD Permits”), issued to them by the South Florida Water Management District (“District”).
PRELIMINARY STATEMENT
On June 28, 2012, the District gave notice of its intent to renew USSC WOD Permit No. 50-00018-E and SFC WOD Permit No. 50- 00047-E. On July 3, 2012, the District gave notice of its intent to renew SCGC WOD Permit No. 50-00031-E. On July 27, 2012, Florida Audubon Society ("Audubon") filed three petitions for hearing challenging the WOD Permits. Audubon later filed amended petitions, which the District referred to DOAH. The three petitions were consolidated and assigned DOAH Case No. 12-2811.
The Applicants and the District filed motions to dismiss or to strike Audubon’s amended petitions. Those motions were denied.
At the commencement of the final hearing on April 24, 2013, the Administrative Law Judge determined that the parties’ dispute regarding the meaning and intent of section 373.4592(4)(f)4., Florida Statutes, should be resolved before further evidence was
presented. The parties were ordered to file briefs and present oral argument on the issue. In conjunction with this Order, official recognition was taken of certain orders issued in United
States v. South Florida Water Management District, Case No. 88- 1886 (S.D. Fla.) and Miccosukee Tribe of Indians of Florida v.
United States, Case No. 04-21448 (S.D. Fla.); Everglades Forever Act (1994); Everglades Forever Act (2003); Everglades Forever Act (1994 and 2003 Combined); Rule 40 C.F.R. § 131.44; Florida Administrative Code Rule 62-302.540 (2012); Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals, dated October 27, 2003; Permit (0279499-001-EM), dated November 16, 2007; Technical Support Document for the STA-1W TBEL, dated October 12, 2007; Permit (0311207), dated
September 10, 2012; 2012 Consent Order (OGC 12-1149), dated
August 15, 2012; and 33 U.S.C. § 1342(l)(1).
On June 6, 2013, the Administrative Law Judge ruled that section 373.4592(4)(f)4. did not require the Applicants to implement additional water quality measures unless state water quality standards are being violated in the Everglades Protection Area and the stormwater treatment areas are not adequate to eliminate the violations.
The final hearing was resumed on October 17, 2013. Joint Exhibits J-001 through J-007 and Joint Respondent Exhibits JR-001
through JR-006, JR-008 through JR-013, JR-017, and JR-019 through JR-025 were admitted into evidence.
Audubon presented the testimony of Thomas W. Simpson, Ph.D. and Melodie Naja, Ph.D. Audubon Exhibits P-004, PXA-34, PXA-35, PXA-36, P-171.134, P-171.135, P-171.159, P-171.161, P-171.174,
P-171.210, P-171.211, P-171.213, P-171.223, P-171.248, P-171.249, P-171.319, P-171.327, P-171.379, P-171.400, P-171.406, P-171.412, P-171.413, P-171.423, P-171.430, P-171.436, and P-200 were
admitted into evidence.
The District presented the testimony of Ernest Barnett, the District’s Assistant Executive Director, and Pamela Wade, P.E., Chief of the District’s Everglades Regulation Bureau. District Exhibits D-001, D-003 through D-005, D-014 through D-017, and D- 025 through D-043 were admitted into evidence.
The Applicants jointly presented the testimony of Paul J. Whalen. Joint-Applicants Exhibits JA-002, JA-048, JA-049, JA- 053, and JA-065 through JA-132 were admitted into evidence. SCGC presented the testimony of James M. Shine, Jr., SCGC’s Vice President of Agriculture, and Kathy Lockhart, SCGC’s Manager of Environmental Affairs, and SCGC Exhibits SCGC-001, SCGC-001.B and SCGC-001.B.X were admitted into evidence. USSC presented the testimony of Kenneth McDuffie, USSC’s Senior Vice President for Agricultural Operations, and USSC Exhibits USSC-001, USSC-001.C.1 and USSC-001.C.2X were admitted into evidence. SFC presented the
testimony of Luis Girado, SFC’s Environmental Manager, and SFC Exhibits SFC-001, SFC-03848.AX, SFC-03853.AX, SFC-03854.AX, SFC- 03858.AX, SFC-03859.AX, SFC-03863.AX, SFC-03864.AX, SFC-
03871.000001X-.0000012X, SFC-03876.AX–03876.IX, SFC-
03876.000007X–03876.000018X, SFC-03985.AX, SFC-03986.AX, SFC-
04004.AX, SFC-04005.AX, and SFC-04096.AX were admitted into evidence. Certain lease documents (Exhibits SCGC-001.BX, USSC- 001.C.2X, SFC-03848.AX, SFC-03853.AX, SFC-03854.AX, SFC-03858.AX, SFC-03859.AX, SFC-03863.AX, SFC-03864.AX, SFC-03871.000001X-
.0000012X, SFC-03876.AX–03876.IX, SFC-03985.AX, SFC-03986.AX, SFC-04004.AX, SFC-04005.AX, and SFC-04096.AX), which the
Applicants consider confidential, were admitted under seal without objection. The Applicants also adopted the testimony of each other’s witnesses and those of the District.
The seven-volume Transcript of the final hearing and the Transcripts of the April 30 and October 1, 2013, case management conferences were filed with DOAH. The parties filed proposed recommended orders that were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
Audubon is a not-for-profit organization dedicated to restoring and conserving natural ecosystems, focusing on birds and their habitats.
Audubon has a substantial interest in the protection of the Everglades and other ecosystems in the area. Audubon’s interest is affected by the proposed agency action because the WOD Permits authorize agricultural discharges that affect these ecosystems.
The District is a Florida public corporation with the authority and duty to administer regulatory programs in chapter 373, and Florida Administrative Code Title 40E, including a program for regulating discharges from the Everglades Agricultural Area (“EAA”) into works of the District.
The EAA is located south of Lake Okeechobee and comprises about 570,000 acres. The majority of EAA agriculture is sugarcane, with some row crops, such as radishes, leafy vegetables, and corn, and turf sod. During fallow periods, rice is also grown.
The Applicants are owners and lessees of agricultural lands in the EAA.
Background
Some essential background for this case is set forth in rule 40E-63.011:
The Everglades is a unique national resource. It has a high diversity of species, and provides habitat for large populations of wading birds and several threatened and endangered species, including wood storks, snail kites, bald eagles, Florida panthers, and American crocodiles.
Large portions of the northern and eastern Everglades have been drained and converted to agricultural or urban land uses. Only 50% of the original Everglades ecosystem remains today. The remainder is the largest and most important freshwater sub-tropical peatland in North America. The remaining components of the historic Everglades are located in the Water Conservation Areas (WCAs) and Everglades National Park (ENP). ENP and Loxahatchee National Wildlife Refuge (WCA 1) are Outstanding Florida Waters, a designation which requires special protection for the resource.
Large portions of the Everglades ecosystem have evolved in response to low ambient concentrations of nutrients and seasonal fluctuations of water levels. Prior to creation of the Everglades Agricultural Area (EAA), nitrogen and phosphorus were mainly supplied to large areas only in rainfall. Phosphorus is the primary limiting nutrient throughout the remaining Everglades. Sawgrass has lower phosphorus requirements than other species of Everglades vegetation.
A substantial portion of EAA nutrients is transported to the remaining Everglades either in dissolved or in particulate form in surface waters. The introduction of phosphorus from EAA drainage water has resulted in ecological changes in substantial areas of Everglades marsh. These changes are cultural eutrophication, which is an increase in the supply of nutrients available in the marsh. The increased supply of phosphorus in Everglades marshes has resulted in documented impacts in several trophic levels, including microbial, periphyton, and macrophyte. The areal extent of these impacts is increasing.
In 1988, the United States sued the District and the Florida Department of Environmental Regulation, now the Department of Environmental Protection (“DEP”), in federal court,
alleging that the agencies failed to enforce Florida’s water quality standard for nutrients in waters of Loxahatchee Wildlife Refuge and Everglades National Park. The principal pollutant of concern was phosphorus. Audubon, USSC, and certain members of SCGC and SFC intervened in the federal case. In February 1992, the parties resolved their dispute through a settlement agreement approved by the federal court (“the Consent Decree”).
The Consent Decree required the District and DEP to take action to meet water quality standards by December 31, 2002. At that time, the nutrient water quality standard was a narrative standard, prohibiting the discharge of nutrients so as to cause “an imbalance in natural populations of aquatic flora and fauna.”
The Consent Decree directed the District to construct 34,700 acres of stormwater treatment areas (“STAs”) so that nutrient-laden surface water discharged from the EAA could be treated before discharge to the Everglades Protection Area (“EvPA”), which includes Loxahatchee Wildlife Refuge, Everglades National Park, and the Water Conservation Areas. STAs are large freshwater wetlands which remove phosphorus from the water column through physical, chemical, and biological processes such as sedimentation, precipitation, plant growth, and microbial activity. The first STAs were constructed and in operation in 1993.
The Applicants operate in the S-5A Basin within the EAA. Their surface water is conveyed to STA-1W for treatment before being discharged to the EvPA.
The Consent Decree required the District to initiate a regulatory program by 1992 to require permits for discharges from internal drainage systems (farms) in the EAA. The regulatory program was to be based on agricultural best management practices (“BMPs”). The goal of the program, as stated in the Consent Decree, was to reduce phosphorus loads from the EAA by 25 percent over the base period (1979-1988).
In 1992, the District promulgated rule chapter 40E-63, which required EAA farmers to obtain WOD permits and to implement agricultural BMP plans. The BMP plans address fertilizer use and water management. Permittees must also implement a water quality monitoring plan.
The rules require reduction of the total phosphorus loads discharged from the EAA Basin, as a whole, by 25 percent from historic levels. See Fla. Admin. Code R. 40E-63.101. If the EAA, as a whole, is in compliance, individual permittees are not required to make changes to their operations. See Fla. Admin. Code R. 40E-63.145(3)(d). If the 25 percent reduction requirement is not met, the rule contemplates that individual permittees in the EAA would have to reduce nutrient loads in their discharges. See Fla. Admin. Code R. 40E-63.145(3)(e).1/
The Consent Decree also required the District to obtain permits from the Department for discharges from the STAs to the EvPA and to conduct research and adopt rules to “numerically interpret” the narrative standard.
In 1994, the Florida Legislature enacted the Everglades Forever Act (“the Act”), chapter 94-115, Laws of Florida, which is codified in section 373.4592. The Legislature authorized the district to proceed expeditiously with implementation of the Everglades Program. See § 373.4592(1)(b), Fla. Stat. The “Everglades Program” means the program of projects, regulations, and research described in the Act, including the Everglades Construction Project. The Everglades Construction Project involved the construction of 40,452 acres of STAs, which is 5,350 acres more than was required by the federal Consent Decree.
The Act acknowledged the BMP regulatory program for the EAA that the District had established in rule chapter 40E-63, and stated:
Prior to the expiration of existing permits, and during each 5-year term of subsequent permits as provided for in this section, those rules shall be amended to implement a comprehensive program of research, testing, and implementation of BMPs that will address all water quality standards within the EAA and Everglades protection Area.
See § 373.4592(4)(f)2., Fla. Stat.
The Act required DEP to issue permits to the District to construct, operate, and maintain the STAs. See
§ 373.4592(9)(e), Fla. Stat.
The Act required development of a numeric water quality phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e),
Fla. Stat. The Act set the goal of achieving the phosphorus standard in all parts of the EvPA by December 31, 2006.
In June 1995, modifications were made to the Consent Decree. The deadline for achieving water quality standards in the EvPA was changed from December 31, 2002, to December 31, 2006. The STAs were increased from 34,700 acres to 40,452 acres.
The chronological developments outlined above indicate the intent of the Legislature and the parties to the Consent Decree to conform state law and the Consent Decree to each other.
In 2001, DEP initiated rulemaking that lead to its adoption of the Phosphorus Rule, rule 62-302.540, in 2003. The rule set a numeric phosphorus criterion for the EvPA of 10 parts per billion (“ppb”), applied through a four-part test in which attainment is determined separately for “unimpacted” and “impacted areas” of the EvPA. See Fla. Admin Code R. 62- 302.540(4).
In conjunction with this rulemaking, the DEP and District developed the Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals (“Long-
Term Plan”) in March 2003. The Long-Term Plan provided remedial measures and strategies divided into pre-2006 projects and post- 2006 projects. The pre-2006 projects included structural and operational modifications to the existing STAs, implementation of agricultural and urban BMPs in areas outside the EAA or C-139 basins, and construction of several restoration projects congressionally mandated by the Comprehensive Everglades Restoration Plan.
Modeling of treatment capabilities of the STAs after implementation of the pre-2006 projects predicted that the 10 ppb standard for phosphorus could be achieved, but not consistently. Therefore, the Long-Term Plan required the District to identify and evaluate methods to improve phosphorus reductions, and if the phosphorus criterion was not achieved by December 31, 2006, to implement post-2006 modifications and improvements. The post- 2006 strategies include projects to expand and improve the STAs. They do not include changes to the BMP program.
In 2003, the Legislature substantially amended the Act.
It incorporated the Long-Term Plan into the Act, finding that it “provides the best available phosphorus reduction technology based on a combination of the BMPs and STAs.” § 373.4592(3)(b), Fla. Stat. The Long-Term Plan contemplates maintenance of the BMP program in the EAA, with refinements derived from BMP research.
Recent Conditions and Events
As previously stated, chapter 40E-63 requires the total phosphorus load from the EAA to be reduced by not less than 25 percent from historic levels. Since full implementation of the BMP regulatory program, annual phosphorus loads have been reduced by approximately 50 percent.
Despite the efforts and projects undertaken, the phosphorus standard was not being achieved as of December 31, 2006, in all parts of the EvPA.
In 2007, the DEP issued a permit to the District for discharges from the STAs to the EvPA (referred to as the “Everglades Forever Act” or “EFA permit”). The permit required the District to design and construct several regional water management projects, including structural enhancements to STA-1W, and the construction of 6,800 acres of additional STAs. The permit and its compliance schedules provided interim relief through 2016 from the water quality based effluent limitation (WQBEL) necessary to achieve the 10 ppb phosphorus standard. The 2007 EFA permit was not challenged by Audubon or any other entity.
The District, DEP, and the United States Environmental Protection Agency began working together in 2010 to develop new strategies for achieving compliance with the phosphorus standard in the EvPA. The agencies determined that compliance could be
achieved by expanding the STAs by 7,300 acres (6,500 acres would be added to STA-1W) and constructing flow equalization basins to store up to 110,000 acre feet of stormwater runoff. These basins are designed to attenuate peak flows into the STAs in order to improve the processes that remove phosphorus.
In September 2012, DEP issued the District a new EFA permit, which authorized continued operation of the District’s S-5A pump station, STA-1W, and the related conveyance systems by which stormwater runoff from the S-5A Basin is ultimately discharged to the EvPA. The permit was issued with a Consent Order, requiring the District to expand STA-1W by 6,500 acres of effective treatment area in accordance with a timeline and the District’s Restoration Strategies. The 2012 EFA Permit and
Consent Order were not challenged by Audubon or any other entity.
In 2013, the Legislature amended the Act again. The Act’s reference to the Long-Term Plan was revised to include the District’s Restoration Strategies Regional Water Quality Plan, which called for expanding the STAs and constructing flow equalization basins. See § 373.4592(2)(j), Fla. Stat. The
Legislature added a finding that “implementation of BMPs, funded by the owners and users of land in the EAA, effectively reduces nutrients in waters flowing into the Everglades Protection Area.” See § 373.4592(1)(g), Fla. Stat.
The 2013 amendments indicated the Legislature’s intent to codify into law the strategies developed by the District and other regulatory agencies to achieve water quality standards in the EvPA. Those strategies do not materially change the BMP program in the EAA.
The Act and the rules of the District create programs for achieving restoration of the EvPA that rely heavily on the STAs. Over the years, the STAs have repeatedly been enlarged and enhanced. In contrast, the requirement for farmers in the EAA to reduce their phosphorus loading by 25 percent has not changed in
21 years. It is beyond the scope of this proceeding to question the wisdom of the programs that have been established by statute and rule.
Whether Additional Water Quality Measures Are Required
A principal dispute in this case is whether the WOD Permits must include additional water quality measures to be implemented by the Applicants. Section 373.4592(4)(f)4. provides that, as of December 31, 2006, all EAA permits shall include “additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs.”
Audubon asserts that the requirement for additional water quality measures has been triggered. The District does not interpret the statute as requiring additional water quality
measures under current circumstances. The interpretation of the statute is primarily a disputed issue of law and is addressed in the Conclusions of Law. There, it is concluded that additional water quality measures are not required.
Whether the BMP Plans are Adequate
Audubon contends that the WOD Permits should be denied because the Applicant’s existing BMP plans are not “tailored” to particular soils, crops, and other conditions. This contention is based on section 373.4592(4)(f)2.c., which states in relevant part:
BMPs as required for varying crops and soil types shall be included in permit conditions in the 5-year permits issued pursuant to this section.
Audubon showed that the Applicants have similar BMP plans for the thousands of acres covered in the three WOD Permits, and contends that this similarity proves that BMPs are not being tailored to specific farm conditions. However, soils and crops are similar throughout the EAA. The soils of the EAA are almost entirely muck soils and the primary crop is sugarcane with some corn or other vegetable rotated in. The Applicants use many of the same BMPs because they have similar soils and grow similar crops.
There are three main categories of BMPs implemented in the EAA: nutrient and sediment control BMPs, particulate matter
and sediment control BMPs, and water management BMPs. See Fla.
Admin. Code R. 40E-63.136, Appendix A2. The BMPs proposed by the Applicants are based on research in the EAA and recommendations specifically for EAA soils and the crops grown there.
The Applications do not identify the specific BMPs that will be implemented, but only the number of BMPs that will be selected from each of the BMP categories (i.e., sediment control). The Applicants must use BMPs on the District’s list of approved BMPs unless an alternative BMP is requested and approved. The lack of greater detail was explained as necessitated by the need for flexibility during the life of the permit to adapt BMPs to varied crops and conditions.
Audubon does not believe the BMP plans are tailored enough, but there is no rule criterion for determining how tailored BMP plans must be, except they must achieve the overall goal of reducing phosphorus loading in discharges from the EAA by at least 25 percent. This goal is being achieved.2/
Audubon did not show that any particular BMP being used by an Applicant was the wrong BMP for a particular soil and crop, or identify the BMP that Audubon believes should be used.
Audubon failed to prove that the Applicants’ BMP plans do not meet applicable requirements.
Whether the Applications Are Complete
Audubon contends that the WOD Permits must be denied because the Applications are incomplete. Many of Audubon’s completeness issues deal with minor discrepancies of a type that are more appropriately resolved between the District and applicants, not violations of criteria that are likely to affect a third party’s interest in environmental protection.
Rule 40E-63.130 lists the requirements for a permit application for activities in the EAA Basin. An Application Guidebook is incorporated into chapter 40E-63, which contains instructions for completing the application.
For applications to renew a permit, the practice of the District is to not require the resubmittal of information that was previously submitted to the District and which has not changed. The Application Guidebook explains this practice.
The Applicants supplemented their applications at the final hearing to provide information that Audubon claimed was omitted from the Applications.3/
Audubon contends that the Applications are incomplete because some application forms are not dated and other forms are not signed by appropriate entities. The District explained its rule interpretation and practices associated with the forms. Additional signatures and dates were submitted at the final hearing. Audubon failed to demonstrate that the Applications are
incomplete based on the identity of the persons who signed application forms or the lack of dates.
Audubon contends the Applications are incomplete because copies of contracts or agreements are not included as required by rule 40E-63.132(3). Audubon failed to prove that contracts and agreements exist that were not included.
Audubon contends the Applications are incomplete because they do not contain a completed Form 0779, entitled “Application For A Works Of The District Permit,” as required by rule 40E-63.132(5). In some cases, the information for Form 0779 had been previously submitted and was unchanged, so the District did not require it to be resubmitted for the permit renewal. Additional information was provided at the final hearing.
Audubon failed to prove that the Applications are incomplete based on missing information on Form 0779.
Audubon contends that the Applications are incomplete because documentation regarding leased parcels was missing. Pursuant to rule 40E-63.130(1)(a), individual permit applications must be submitted by the owner of the land on which a structure is located and any entity responsible for operating the structure, and the permit application must include the owners of all parcels which discharge water tributary to the structure. Applications may be submitted by a lessee if the lessee has the
legal and financial capability of implementing the BMP Plan and other permit conditions.
The District explained that when applications are submitted by a lessee who will be the permittee or co-permittee, the District requires the lessee to be a responsible party for the entire term of the permit, which is five years. If the lessee is a not a co-permittee, the District does not require information about the lease and does not require the lessee’s signature. If the lessee is a co-permittee, but the lease expires during the term of the permit, the District requires the applicant to modify the permit when the lease expires. Audubon failed to prove that the Applications are incomplete based on lease information
Audubon contends that the Applications are incomplete because they fail to show that the Applicants participated in an education and training program as required by rule 40E- 63.136(1)(g). The preponderance of the evidence shows that the Applicants participated in education and training programs.
Audubon failed to prove that the Applications are incomplete for any of the reasons raised in its petition for hearing or advanced at the final hearing.
Water Quality Standards in the EAA
Audubon presented some evidence of algal accumulations in ditches and canals, but the evidence was insufficient to prove
the Applicants are violating water quality standards applicable in the EAA.
Summary
Audubon failed to carry its burden to prove that the Applicants are not entitled to the WOD Permits.
CONCLUSIONS OF LAW
Audubon has standing to challenge the issuance of the WOD Permits.
Section 120.569(2)(p) is applicable to this case and places the ultimate burden of persuasion on Audubon to prove that the Applicants are not entitled to the WOD Permits.
The Applicants are entitled to the WOD permits if they provide reasonable assurance that they will comply with applicable permitting criteria. The term “reasonable assurance” means "a substantial likelihood that the project will be successfully implemented." Metro. Dade Cnty. v. Coscan Fla.,
Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
This is a de novo proceeding to formulate agency action. Parties may present evidence at the final hearing that was not previously submitted to or considered by an agency. See J.W.C. Co., Inc. v. Fla. Dep’t of Transp., 396 So. 2d 778 (Fla.
1st DCA 1981).
Audubon contends that the WOD Permits violate section 373.4592(4)(f)4. because the permits did not include additional
water quality measures. This issue was the subject of an Order issued on June 6, 2013, but because of its importance to the recommendation made below, the ruling is explained again here.
Section 373.4592(4)(f) is entitled, “EAA best management practices.” It calls for the development, implementation, and monitoring of BMPs to be used by permittees in the EAA. Subparagraph 3. provides that permittees who are in full compliance with their permits issued under chapters 40E-61 and 40E-63 will not be required to implement additional water quality measures before December 31, 2006. Subparagraph 4. then states:
As of December 31, 2006, all permits, including those issued prior to that date, shall require implementation of additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs. As of that date, no permittee’s discharge shall cause or contribute to any violation of water quality standards in the Everglades Protection Area.
The term “additional water quality measures” is not defined.
The 1992 Consent Decree addressed the development of BMPs, the construction of STAs, and the establishment of a deadline for compliance with water quality standards in the EvPA, which became fundamental elements of the 1994 Act. The Consent Decree established STAs as “the primary strategy to remove nutrients from agricultural runoff.” The strategy for reducing nutrient loading from agricultural activities in the EAA was to
implement BMPs, which is generally the same approach that is used for all agriculture in Florida, no matter where situated.
The Consent Decree provided for what was to happen if the phosphorus criterion was not achieved by the deadline:
[N]otwithstanding the implementation of these control programs, if the concentration limits and levels are violated, then the State Parties will implement additional remedies, such as any necessary expansion of STAs, more intensive management of STAs, a more stringent EAA regulatory program, or a combination of the above.
Implementing “a more stringent EAA regulatory program” was an option. It was not automatic. The Consent Decree allowed the remedy to be expansion or enhancement of the STAs, without any change in regulation of permittees in the EAA.
Audubon argues that, because the phosphorus standard is not being achieved in all areas of the EvPA, subparagraph 4. requires these WOD Permits to include additional water quality measures that will result in elimination of the violation (or perhaps account for the Applicants’ share). Audubon does not identify the water quality measures it believes should be imposed.
Audubon’s interpretation of section 373.4592(4)(f)4. makes the Act inconsistent with the Consent Decree because the Consent Decree did not require “a more stringent EAA regulatory program” if the phosphorus standard was not met by the deadline.
Audubon’s interpretation is also inconsistent with the 2003 amendments to the Act which contemplate compliance with the phosphorus standard after 2006. The 2003 and 2013 amendments, especially the provisions incorporating the Long-Term Plan, are inconsistent with Audubon’s interpretation of subparagraph 4. as requiring farm permits to independently achieve compliance with the phosphorus standard in the EvPA on a faster schedule than the District’s discharges from the STAs.
The District interprets the phrase “taking into account the water quality treatment actually provided by the STAs” in subparagraph 4. as directing the District to consider the additional treatment that will be achieved by approved projects, such as the projects described in the 2012 EFA permit and Consent Order. Therefore, additional water quality measures are not required unless existing and approved STA projects (along with BMP plans) are not adequate to eliminate a water quality violation.
The adequacy of the existing and approved plans to eliminate water quality violations in the EvPa, as established in the 2012 EFA permit and Consent Order, was not challenged by Audubon and cannot be collaterally attacked here.
Because the projects described in the 2012 EFA permit and consent order are designed to achieve compliance with the phosphorus standard in the EvPA, no additional water quality measures are required in the WOD Permits. After these projects
are completed, EAA discharges will not cause or contribute to a violation of water quality standards.
The District’s interpretation of subparagraph 4. harmonizes the 1992 Consent Decree, the 1994 Act, the 2003 and 2013 amendments to the Act, and the 2012 EFA permit and Consent Order.
Audubon contends that the reference in subparagraph 4. to water quality treatment “actually provided” by the STAs means that only the current level of treatment provided by the STAs can be considered -- not the improved level of treatment that will be achieved under the terms of the 2012 EFA permit and Consent Order. Audubon urges this interpretation because it believes it provides additional protection for the EvPA beyond the protection provided by the rules of the District and the orders of DEP. However, it is not the District’s interpretation of subparagraph
