Florida should not be able to pull out of a landmark legal settlement ensuring clean water reaches the Everglades before work is done and in the midst of the state’s ongoing algae crises, attorneys said this week.
In filings opposing a move by the South Florida Water Management District in November to end federal oversight of Everglades work, the U.S. Department of Justice, the Florida Department of Environmental Protection, the Miccosukee Tribe and environmental groups claimed the settlement may be the one thing that has kept southern marshes free of the pollution that has ravaged other parts of the state. As work progresses in the decades-long effort to repair damage from flood control and send more water south, the settlement is needed even more, they said.
“The consent decree is not the enemy,” attorneys Alisa Coe and Anna Upton argued for environmentalists. “It is actually the only thing that has effectively protected the Everglades from destruction.”
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In November, the South Florida Water Management District, which oversees state efforts to fix the Everglades, asked a federal judge to throw out the agreement, called a consent decree, hammered out nearly three decades ago to ensure the state cleans dirty water from farms and Lake Okeechobee before it reaches marshes. The district’s attorneys argued that massive treatment marshes, federal pollution permits and state water standards could now protect Everglades National Park and the Loxahatchee Wildlife Refuge.
The district is also worried the decree’s strict pollution limits could block permits for projects now nearing completion just when the district is poised to move significantly more water into Everglades National Park.
“The delivery mechanism of bringing that water into the park is not attaining the original goal,” district engineer Stuart Van Horn said at an October meeting of an oversight committee required by the decree.
There are also questions about a massive Everglades reservoir approved by lawmakers in 2017. At about 23 feet deep, more than twice as deep as Lake Okeechobee, water will be harder to clean. Stormwater treatment areas have so far cleaned most of the water flowing off sugar fields, but it is not clear what will happen when the reservoir is built and starts storing Lake O water, which is far more polluted.
U.S. Judge Federico Moreno has set a hearing for Feb. 11 on the case. But it’s also not clear how all this will play out.
The district’s governing board, which had toyed with the idea of trying to pull out of the deal for more than a year, infuriated Florida’s new governor by voting to have attorneys file a motion to do so just two days after the election. The board also voted to extend a lease for sugar farmers even after Gov. Ron DeSantis asked them to hold off. Earlier this month, DeSantis called for the entire board to step down. Three have so far resigned from the nine-member board and terms end for three more in March.
When contacted Thursday, district spokesman Randy Smith said officials don’t comment on ongoing litigation.
It’s also not clear where DeSantis stands on the decree. The conservative Republican who favors less government over more has made cleaning up Florida’s water woes a priority. One hint may be a motion filed by the Florida Department of Environmental Protection opposing the district.
“While great progress has been made,” DEP attorneys wrote, “no party disputes that more work remains.”
And federal attorneys made clear much work remains. The attorneys cited repeated violations of the decree and monitoring efforts the district has yet to finish. And while the district cited that as evidence of how onerous the order is, the Department of Justice said it proves the opposite: despite the violations, the decree had allowed the two sides to work things out. The federal agency also challenged the district for arguing to remove the decree on legal grounds without providing evidence that water is in fact cleaner.
Before this week’s filings, there had been some question over which side the DOJ would take. Just before he resigned, former U.S. Attorney Jeff Sessions issued a memorandum outlining a new policy on consent decrees saying they should last no more than three years and require approval from top administrators, which would make the Everglades deal far less likely to occur today. The government shutdown also took a toll: a request by DOJ attorneys for an extension was denied, prompting them to include an opening note explaining the absence of federal experts and their clients had impeded their work.
“We’re glad the U.S. is standing up to protect the Everglades and we believe this is a really important consent decree,” Coe said. “If [the district] is saying they want to move more water south but it’s not going to be clean enough, that tells us something is wrong.”