United States 
Civil Complaint

•  Style
•  Complaint
•  Jurisdiction and Venue    
•  Parties 
•  Statement of the Case 
•  Count I
•  Count II 
•  Count III
•  Count IV 
•  Count V
•  Prayer for Relief  

Exhibits
•  A - Map of C&SFFCP
•  B - MOA

Pages:  10 20
Signature Page

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

Plaintiff,

vs .

SOUTH FLORIDA WATER MANAGEMENT
DISTRICT; JOHN R. WODRASKA,
Executive Director, South Florida
Water Management District;
FLORIDA DEPARTMENT OF ENVIRONENTAL
REGULATION; and DALE TWACHTMANN,
Secretary, Florida Department Of
Environmental Regulation,

Defendants.

__________________________________________/

Case No
88-1886-CIV-WMH

FILED by SEC D.C.
OCT 11, 1988
Docket #: 1

COMPLAINT

JURISDICTION AND VENUE

1. This Court has jurisdiction pursuant to 28 U.S.C. § §1331 and 1345.

PARTIES

4. Both Everglades National Park("Everglades" or "Park") and Arthur R. Marshall Loxahatchee National Wildlife Refuge ("Loxahatchee") constitute natural resources of the highest order and are held in trust for the benefit of all citizens of the United States, including the citizens of the State of Florida.

5. Everglades National Park is made up of wet prairies, aquatic sloughs, sawgrass prairies, hammock islands, pinelands, and estuarine systems. It is an

International Biosphere Reserve and World Heritage Site, Federal Wilderness Area, and Wetland of International Significance. As such it provides sanctuary to rare, threatened, and endangered species of wildlife including the Florida Panther, Southern Bald Eagle, Woodstork, American Crocodile, and Cape Sable Sparrow. The Park has diverse and complex ecosystems that require non-polluted, low nutrient water for their ecological integrity because the native flora and fauna developed under these circumstances.

6. Arthur R. Marshall Loxahatchee National Wildlife Refuge is a remnant of the original northern Everglades and has the same diversity of marsh habitat. Like the Park, it is a sanctuary to unique wildlife species and is designated as critical habitat for the endangered Snail Kite. Low nutrient waters are also required in Loxahatchee to preserve its native habitat.

7. Both Everglades National Park and Loxahatchee National Wildlife Refuge are designated Outstanding Florida Waters under Florida law and lowering their ambient water quality is prohibited. Together these two natural resources contain habitat for 26 threatened or endangered species.

8. Defendant, Department of Environmental Regulation ("DER"), is the State agency vested with

 

 

significant power and responsibility to control the waters of Florida and prevent pollution.

9. Defendant, Dale Twachtmann, is Secretary of the Florida Department of Environmental Regulation. All references herein to "DER" shall include Defendant, Dale Twachtmann, as Secretary of DER as well as DER itself as an agency.

10. Defendant, South Florida Water Management District ("SFWMD"), is delegated significant power and responsibility by DER to manage and protect the State's water resources within the geographical portion of Florida relevant to this lawsuit. SFWMD also has certain responsibilities in managing and protecting water resources directly stemming from legislative mandate.

11. Defendant, John R. Wodraska, is the Executive Director of the South Florida Water Management District. All references herein to "SFWMD" shall include Defendant, John R. Wodraska, as Executive Director of the South Florida Water Management District as well as SFWMD itself.

STATEMENT OF THE CASE

12. SFWMD manages more than one hundred water control structures and some 1,400 miles of canal and levees as part of its water management

 

 

 

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responsibilities. These structures and canals must be operated in accordance with the State's laws and regulations. This water system artificially transports water throughout the Kissimmee/ Okeechobee/ Everglades basin. Vast quantities of water are delivered to Loxahatchee National Wildlife Refuge and Everglades National Park.

13. SFWMD has the responsibility to allocate the consumption of water among competing interests in a way that best serves public policy. One of the largest consumers of water south of Lake Okeechobee ("Lake") is the agri-industry located within a 700,000 acre basin called the Everglades Agricultural Area ("EAA"). The EAA lies south of Lake Okeechobee between the Lake and the Water Conservation Areas. See Exhibit A.

14. Landowners in the EAA received title subject to a public trust reservation from the State of Florida. They are and have been at all times obligated to manage the land and its water resources consistent with and not in derogation of this public trust.

15. DER and SFWMD are obligated to carry out their legal responsibilities in regulating water resources consistent with the public trust.

16. Within the EAA, SFWMD uses its pumps and canals in conjunction with privately owned feeder systems to drain the basin during the wet season and irrigate crops during the dry season. As a result of heavy fertilizer use and bad water management, tons of pollutants (including nutrient pollutants) are dumped into the public conveyance system and sent southward to the detriment of downstream riparian landowners including Everglades and Loxahatchee.

17. In addition to the pollution coming off the EAA, nutrient pollution comes from north of Lake Okeechobee and elsewhere around the Lake. As a result of bad water management, dairy farming, and other agricultural activities, pollution is produced which runs off into Lake Okeechobee and its tributaries, including the Kissimmee River, Taylor Creek, and Nubbin Slough. Significant amounts of this polluted water from Lake Okeechobee enter the public conveyance system and are sent southward to the detriment of downstream riparian landowners including Everglades and Loxahatchee.

18. Large quantities of polluted water are discharged by SFWMD into Loxahatchee from the Everglades Agricultural Area and Lake Okeechobee. These discharges of polluted water have resulted in the destruction of lower forms of aquatic life essential to

the preservation of the sensitive ecosystems in Loxahatchee, including but not limited to:

(a) Loss of natural periphyton mat;
(b) Change from a diverse vegetative community to a monoculture of cattails; and
(c) Loss of dissolved oxygen.

19. Florida law recognizes that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. In addition, the Florida Administrative Code requires that particular consideration be given to protecting from nutrient pollution those waters containing very low nutrient concentrations. Natural waters of Everglades and Loxahatchee fall within this category.

20. DER and SFWMD have knowingly failed to enforce State laws enacted to regulate and protect water quality while agri-industry acreage and production within the EAA and elsewhere surrounding Lake Okeechobee have continued to expand without adequate regulation. The result of this regulatory failure has been a dangerous increase in the amount of nutrient pollution discharged into the water conveyance system.

21. Until 1979, a large portion of the polluted water coming off the Everglades Agricultural Area was backpumped into Lake Okeechobee by SFWMD. These waters contained extremely high levels of pollutants such as phosphorus and nitrogen. Nutrients and other pollutants have been recognized by DER and SFWMD as causing or contributing to serious degradation of water quality in Lake Okeechobee.

22. In 1979, SFWMD and DER began diverting significant amounts of these polluted waters south toward the Water Conservation Areas and Everglades National Park. The Water Conservation Areas lie between the EAA and Everglades National Park.

23. Loxahatchee Wildlife Refuge is almost entirely contained within Water Conservation Area 1. Water Conservation Areas 2A and 2B lie to the southwest of number 1. Water Conservation Areas 3A and 3B lie immediately north of and adjacent to Everglades National Park. The Conservation Areas are made up of historic Everglades marsh which depend on pristine, almost nutrient-free water. As a result of the management strategy adopted in 1979, increased amounts of polluted waters flow southward through the Water Conservation Areas into Everglades National Park.

24. The diversion of polluted water has caused or contributed to violations of state water quality standards in Loxahatchee and the other Water Conservation Areas. This pollution has already caused tens of thousands of acres of irreversible vegetative changes to these delicate and diverse marsh habitats. Cattails have invaded and taken over sawgrass stands, wet prairies, and slough communities. A monoculture of cattails depletes dissolved oxygen so that native fish and wildlife habitats are lost.

25. These polluted waters are creating an expanding nutrient front that has invaded Loxahatchee and the other Water Conservation Areas. Increased nutrient levels have been documented in the waters of Everglades National Park for many years.

26. The extensive damage to the native vegetation which has already occurred in Loxahatchee Wildlife Refuge and the Water Conservation Areas constitutes clear and convincing evidence of the current danger to Everglades National Park. Unless immediate measures are taken to prevent excessive nutrients and contaminants from being dumped downstream into Everglades National Park, the damage which is occurring in Loxahatchee and the Water Conservation Areas will also occur in the Park.

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27. Nutrient induced destruction of the periphyton mat directly and adversely impacts all higher forms of biological life such as fish and aquatic birds for which Loxahatchee and Everglades are famous.

28. DER and SFWMD have the duty under Florida law to regulate the quality of these waters in order to reduce the nutrient and pollution load. They have breached that duty.

29. Further, SFWMD has entered into a contract with Everglades National Park which promises the Park that certain water quality criteria will be met, and that SFWMD will use appropriate action including legal process to assure that water quality criteria will be enforced. A copy of that contract is attached. See Exhibit B. SFWMD has breached that contract.

30. Congress has repeatedly affirmed that National Parks must be protected from ecological damage and remain unimpaired for the enjoyment of future generations. Numerous Acts of Congress have been directed at preserving and protecting intact the sensitive ecological balance in Everglades National Park. Specifically:

(a) National Park Service Organic Act (16 U.S.C.

 

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§1), August 25, 1916, whose stated "purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."
(b) Everglades National Park Authorization Act (16 U.S.C. § 410c), May 30, 1934 , which states that Everglades National Park area shall "be permanently reserved as a wilderness and no development of the project or plan... shall be undertaken which will interfere with preservation intact of the unique flora and fauna and the essential primitive natural conditions now prevailing in this area."
(c) Wilderness Act (16 U.S.C § 1131(a)), September 3, 1964, which sets forth Congressional intent as it relates to wilderness management and protection, specifically, "...there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as 'wilderness areas', and these shall be administered for the use and enjoyment of the

 

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American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness...."

By Act of Congress, November 10, 1978, 16 U.S.C. § 1132, 1.3 million acres of Everglades National Park was declared wilderness, to be administered pursuant to the Wilderness Act of 1964.

31. The Property Clause of the United States Constitution, Article IV, Section 3, Clause 2, gives the United States the right to protect its land from damage, trespass, or injury even when threats originate from outside the territorial limits of the property. The United States, as a landowner and proprietor, has the same or greater rights to protect its land from harm as an ordinary landowner and proprietor. Through the above Acts of Congress, the United States is also charged with a higher duty of care to protect and preserve lands held in trust for all of its citizens.

COUNT I

DER AND SFWMD HAVE VIOLATED STATE LAW
IN FAILING TO REGULATE WATER POLLUTION

32. Plaintiff realleges paragraphs 1 through 31 above.

33. Defendant, Department of Environmental Regulation, is the Florida agency vested under Fla. Stat. 373 with the power and responsibility to conserve, protect, manage, and control the waters of Florida. DER is further responsible for administration of the provisions of Fla.

 

 

 

Stat. 373 otherwise known as the Florida Water Resources Act of 1972 ("Chapter 373").

34. Pursuant to Chapter 373, DER may delegate its powers to the governing board of water management district such as the South Florida Water Management District. DER has delegated significant powers to SFWMD.

35. Under the Florida Surface Water Improvement and Management Act of 1987, Fla. Stat. 373.4595(2)(a)1, SFWMD shall not divert waters to Everglades National Park in such a way that:

(a) State water quality standards are violated; or
(b) The nutrients in diverted waters adversely affect native vegetative communities or wildlife.

36. Conservation Area 3A, immediately north of and adjacent to Everglades National Park, has already suffered vegetative changes caused by nutrient polluted waters delivered by SFWMD. If the excess nutrient pollution continues, the Park will suffer the same changes.

 

 

37. DER has the power and duty to control and prohibit pollution of water under Fla. Stat. 403, otherwise known as the Florida Air and Water Pollution Control Act ("Chapter 403"). That Act declares that the public policy of Florida is to conserve the waters of the State and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters.

38. Pursuant to the provisions of Chapter 403, DER has designated both Everglades and Loxahatchee as Outstanding Florida Waters. Accordingly, they are afforded the highest protection because of their exceptional ecological significance.

39. Both DER and SFWMD have the power and responsibility to issue and enforce various permits for protection and management of water. The purpose of these permits is to ensure that the waters within the State are protected in accordance with State regulation.

40. Both DER and SFWMD have failed to exercise their power and failed to fulfill their respective responsibilities under Chapter 373, Chapter 403, and

COUNT II

SFWMD HAS POLLUTED WATER IN VIOLATION OF
STATE LAW BY OPERATING UNPERMITTED STRUCTURES

41. Plaintiff realleges paragraphs 1 through 40 above.

42. Florida law governing the issuance of DER permits to use or dispose of water are applicable to SFWMD when SFWMD operates and maintains pumps and other water control structures.

43. The pumps, water control structures, and canals operated by the SFWMD constitute stationary installations as defined by Florida Law.

44. SFWMD operates certain stationary installations, such as the S-5A and S-6 pumps, without permits from DER. These structures deliver large quantities of nutrient polluted water to Loxahatchee National Wildlife Refuge. SFWMD also operates structures S-7 and S-8, without DER permits, that deliver water to the Conservation Areas north of Everglades National Park.

45. SFWMD owns or otherwise possesses the land underlying this water delivery system and holds title to the land subject to a public trust.

46. DER and SWFMD are obligated to carry out their legal responsibilities in regulating water resources consistent with the public trust.

47. Florida law requires that any stationary installation which may reasonably be expected to cause water pollution must not be operated without a permit.

48. SFWMD has violated Florida law by operating unpermitted stationary installations that have been shown to cause or contribute to pollution.

49. DER has violated Florida law by allowing SFWMD to operate such stationary installations without permits.

50. DER and SFWMD have breached the public trust imposed on SFWMD as a landowner and imposed on DER and SFWMD as regulators.

51. The operation of unpermitted structures has caused violations of State water quality standards in Loxahatchee and Everglades National Park.

52. Ambient water quality standards for Loxahatchee and Everglades National Park were established according to Florida law when they were designated as Outstanding Florida Waters on March 1, 1979.

53. Florida Code provisions dealing with Outstanding Florida Waters require that nutrient concentrations of a body of water cannot be altered to cause an imbalance in the natural populations of

 

 

aquatic flora or fauna. Man-induced nutrient loading of water constitutes degradation under Florida law.

54. Since its designation in 1979 as an Outstanding Florida Water, Loxahatchee has suffered thousands of acres of change in its native vegetation causing an imbalance of the natural flora and fauna by giving rise to monocultures of cattails. These changes have been caused by the nutrient-loaded waters delivered through the unpermitted S-5A and S-6 structures.

55. The S-7 and S-8 structures have caused or contributed to increased pollution in the waters being delivered to Everglades National Park. If these discharges continue, they will result in the same vegetative changes.

COUNT III

SFWMD HAS BREACHED AN EXPRESS CONTRACT BY DIVERTING
POLLUTED WATER INTO EVERGLADES NATIONAL PARK

56. Plaintiff realleges paragraphs 1 through 55 above.

57. On February 10, 1984, SFWMD entered into a contract with the National Park Service and the United States Army Corps of Engineers ("Corps"). This contract sets forth water quality standards for deliveries by SFWMD to the Park.

 

 

58. The terms of the contract specify water quality criteria for 27 parameters including nitrogen, phosphorus, dissolved oxygen, and trace metals. The concentrations of pesticides and herbicides in surface waters delivered to the Park are to be zero or below the level of detection. Federal, State, or local water quality criteria that are more stringent shall apply.

59. SFWMD contractually agreed, among other promises, to:

(a) Ensure that surface waters delivered to the Park are not degraded;
(b) Deliver water to the Park that meets the criteria set forth in the contracts; and
(c) Take legal action where necessary to prevent ecological damage to, or deterioration of, the Park's environment from water quality violations.

60. SFWMD has breached the promises set forth in the contract. Data collected by the SFWMD and the Corps pursuant to the contract document these violations.

61. Under the power delegated to SFWMD by DER, SFWMD has both the duty and the means to reduce levels of nutrients and other pollutants in the water delivered to the Park. SFWMD is required to improve water quality through its permitting and other

 

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authority pursuant to state law. Plaintiff United States does not have the power to undertake such action.

62. Irreversible ecological damage to the sensitive and valuable resources of Everglades National Park will result if violations continue. Such damage will include, but is not limited to, changes in the native vegetative communities and fishery resources such as have already occurred at Loxhatchee National Wildlife Refuge where large segments of the diverse ecosystem have disappeared.

63. Everglades National Park preserves the heritage of all United States citizens and protects a resource of international significance. Money damages cannot compensate for any impact on, or loss of, this precious resource.

64. Everglades National Park has repeatedly insisted that SFWMD take action to prevent pollution of its water deliveries. All conditions precedent to the enforceability of the contract have been performed.

COUNT IV

DEFENDANTS' ACTIONS AND INACTION VIOLATE PLAINTIFF'S RIPARIAN RIGHTS AND
CONSTITUTE A NUISANCE UPON PLAINTIFF'S
PROPERTY PURSUANT TO STATE AND FEDERAL LAW.

65. Plaintiff realleges paragraphs 1 through 64 above.

66. Defendant DER is responsible for the control of water pollution in Florida. DER has delegated significant duties to SFWMD including the duty to regulate water through various permits in order to obtain the maximum beneficial use of Florida's waters. Only reasonable uses as dictated by public policy may be sanctioned by SFWMD through their permit process.

67. SFWMD currently operates the vast system of canals and pumps in place from the Kissimmee River southward all the way to Everglades National Park. SFWMD owns or otherwise possesses the land underlying this water delivery system making it an upstream riparian landowner. SFWMD also has the power to regulate the use and discharge of waters from private and public lands that enter Loxahatchee and Everglades National Park.

68. Everglades National Park and Loxahatchee National Wildlife Refuge receive vast quantities of polluted and contaminated water channeled through the system. This transportation by SFWMD of pollutant substances in harmful concentrations has resulted in the dominance of nuisance vegetative species over thousands of acres in Loxahatchee. Accordingly, formerly pristine areas have been, and continue to be, irrevocably lost. Florida law mandates that a

 

 

non-degradation standard apply to Outstanding Florida Waters such as Loxahatchee and Everglades. SFWMD has breached its statutory duties.

69. In addition to the statutory duties imposed upon Defendants, SFWMD has entered into a contractual agreement with Everglades National Park to provide water to the Park within specific quality parameters. This agreement has also been breached.

70. Pursuant to State and Federal law, Everglades National Park and Loxahatchee National Wildlife Refuge must be strictly maintained and preserved intact for the protection of these natural resources and for the use and enjoyment of the public.

71. SFWMD's continuing destruction of these natural sanctuaries through its unreasonable operation of the canals and pumps substantially interferes with the use and enjoyment of these areas by present and future generations. This destruction constitutes a nuisance and violates rights of downstream riparian landowners under State and Federal law.

COUNT V

DEFENDANTS' ACTIONS AND INACTTON DAMAGE
FEDERAL PROPERTY IN VIOLATION OF THE
UNITED STATES CONSTITUTION AND LAWS

72. Plaintiff realleges paragraphs 1 through 71 above.

 

 

73. The Property Clause of the United States Constitution, Article IV, Section 3, Clause 2, authorizes Congress to control, regulate, and protect property of the United States.

74. The Necessary and Proper Clause of the United States Constitution, Article I, Section 8, Clause 18, vests Congress with the authority to make all laws necessary to carry out its duties.

75. Congress has exercised its authority under the Constitution by enacting the National Park Service Organic Act, the Everglades National Park Authorization Act, and the Wilderness Act, as previously alleged in paragraph 30.

76. The Everglades National Park Authorization Act and other laws previously cited provide that the Everglades' unique and fragile ecosystem will be preserved unimpaired and in its natural state for the benefit of future generations.

77. The actions of SFWMD and DER by damaging this fragile ecosystem and its water resources, as previously alleged, violate the United States Constitution and other laws. Such actions are also contrary to and in derogation of the constitutional power of Congress to control, regulate, and protect property of the United States as reflected in the

PRAYER FOR RELIEF

Wherefore, Plaintiff requests that:

78. Defendants, DER and SFWMD, be mandated to carry out their duties under State law to enforce all applicable water quality standards.

79. Defendants, DER and SFWMD, be enjoined and restrained from delivering to Everglades National Park and Loxahatchee National Wildlife Refuge polluted and contaminated water.

80. Defendants, DER and SFWMD, be enjoined and restrained from operating unpermitted stationary installations that cause or contribute to pollution.

81. Defendants, DER and SFWMD, be mandated to immediately take all actions within their authority to ensure that water delivered to Everglades National Park conforms to the requirements of the 1984 contract.

82. Defendants, DER and SFWMD, be mandated to abate the nuisance and honor the rights of the United States as a downstream riparian owner.

83. Defendants, DER and SFWMD, be enjoined from damaging Everglades National Park in violation of the United States Constitution and the laws of Congress.

84. The Court award such other relief as may be appropriate.

85. The Court retain jurisdiction of this matter until DER and SFWMD are in full compliance with its order.

86. The Court award costs and attorneys fees for maintenance of this action.

DEXTER LEHTINEN
UNITED STATES ATTORNEY

 

____________________
Dexter Lehtinen
United States Attorney
155 S. Miami Ave, Suite 700
Miami, Florida 33130

 

_____________________
Robyn J. Hermann
Assistant U.S. Attorney
Chief, Civil Division
(305) 536-5957

 

_____________________
Suzan Hill Ponzoli
Assistant U.S. Attorney
(305) 536-6832

 

_____________________
Richard W. Harrison
Assistant U.S. Attorney
(305) 536-5934

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