JUDGE HOEVELER'S ORDER SETTING HEARING DOES NOT FIND THAT AMENDMENTS TO THE EVERGLADES FOREVER ACT ARE IN CONFLICT WITH CONSENT DECREE

Judge Hoeveler’s “ORDER SETTING HEARING” is based upon what the judge has read in the Miami Herald and not on his review of the legislation.

The Judge makes clear that the Settlement Agreement and his Consent Decree do not control the State owned parts of the Everglades (Water Conservation Areas 1, 2 and 3) but do control what the parties do in the Everglades National Park.

This litigation was filed by the Federal Government to protect the Government’s interests as a landowner of the National Park and as a manager of the state owned Loxahatchee Wildlife Refuge. It was filed under state law and all prior orders of Judge Hoeveler have recognized that the interests of the Federal Government will be determined under state law.

The Settlement Agreement established interim and long-term limits for both the National Park and Refuge. These limits have already been achieved even though only one half of the treatment works provided by the Stormwater Treatment Areas have been completed. 

The proposed phosphorus criterion for the Everglades of 10 parts per billion has been achieved in the Everglades National Park. Implementing the Long-Term Plan of the South Florida Water Management District as provided in SB 626 would ensure that this compliance will continue into the future.

The Long-Term Plan makes further improvements to the Stormwater Treatment Areas to ensure that State Water Quality Standards regarding phosphorus in all parts of the Everglades will be achieved and maintained.

Even though Judge Hoeveler’s order says: “I do not propose to deviate from the settlement that now exists..”, the Settlement Agreement and Consent Decree expressly provided that the Settlement Agreement was not self-executing but had to be implemented under State Law. State Agencies were expressly directed to “use the full scope of their authority” to achieve compliance with State Water Quality Standards.

As stated by the Court in the Consent Decree and restated by the 11th Circuit on appeal: “Nothing in this Agreement is intended to abrogate the District’s and the DEP’s duties to act in accordance with Florida Law”. As Judge Hoeveler recognized in his Consent Decree: “...the Agreement imposes a process, rather than a result.”

The original Settlement Agreement of 1992 has been modified previously by Judge Hoeveler to incorporate the changes in State Law enacted by the Everglades Forever Act of 1994. The same legal principles, requiring that State Law be respected, will apply to the Judge’s review of SB 626 when enacted. The Judge ordered modifications to the original consent decree despite opposition of environmental interests and the Miccosukee Tribe.

Arguments now made that SB 626 is inconsistent with the Settlement Agreement and Consent Decree are the same that were made 10 years ago against the Everglades Forever Act and rejected by Judge Hoeveler. The Judge expressly retained jurisdiction over the Consent Decree for further orders to modify or enforce the Decree.

The Department recognizes that there are areas of the Everglades, outside of the National Park that will not achieve the criterion because of phosphorus that has accumulated in the soil and that the recovery of these areas will take many years but will show “net improvement” as currently required by the Everglades Forever Act.

SB 626 does not, in any way, modify the Everglades phosphorus criterion of 10 ppb proposed by the Department. It does not, in any way modify the Water Quality Standard relating to phosphorus that has been proposed by the Department. It does ratify the Moderating Provisions providing for “net improvement” in impacted areas proposed by the department and require that the criterion be achieved at the earliest practicable date. 

In 1994 when the Everglades Forever Act was enacted, it was contemplated that 10 ppb could be achieved in the Everglades National Park by 2006 although it would not be in all other parts of the Everglades.

SB 626 provides the funding and directs implementation of a Long-Term Plan that will move forward with all treatment improvements that the scientists and engineers have determined to be scientifically defensible and technically feasible. It will ensure that the Everglades Water Quality criterion relating to phosphorus will be achieved at the earliest practicable date.

Nothing in SB 626 will slow down cleanup efforts to which the State and Federal parties agreed in the Settlement Agreement.