Federal judge rejects move by South Florida water managers to end Everglades oversight

Miami Herald |

--A judge rejected efforts by South Florida water managers to end federal oversight of Everglades water quality on Monday, telling their attorneys the move was "premature" so soon after a new governor took office.

U.S. Judge Federico Moreno, who oversees the landmark order that for nearly 30 years set the strict limits for pollution entering marshes, repeatedly questioned attorneys about the timing of the motion. Ultimately, he decided moving forward while the South Florida Water Management District board remains in flux -- five seats remain open after Gov. Ron DeSantis demanded board members resign -- was unwise.

"I want to be like a physician: Do no harm," said Moreno, who dismissed the motion without prejudice -- which means it can be filed again.

Two days after the tight election and while ballots were still being counted, the district governing board voted in a closed-door meeting with attorneys to ask Moreno to dismiss the decree after complaining about the ongoing oversight for more than a year. The decree is the result of a 1992 settlement over violations of the Clean Water Act filed by the Department of Justice and Miccosukee Tribe.

The decision was made at the same meeting that board members infuriated DeSantis by voting to extend leases for sugar farmers on land slated for an Everglades reservoir to help end polluted discharges from Lake Okeechobee that regularly foul the coasts with slimy algae blooms.

In January, just after he was sworn in, the new governor demanded all nine board members step down. The legal motion, however, moved forward, with district general counsel Brian Accardo arguing in legal briefs that the district had complied with the order to clean water and that state pollution permits issued in 2012 would protect the marshes going forward. Accardo, who resigned from his district position in January but was paid to continue trying the case, also argued the consent decree was hindering ongoing work by keeping water from being moved south into Everglades National Park.

"If the Everglades could talk, it would scream. If federalism could talk, it would scream," Accardo told Moreno, referring to the limit of federal powers in state matters. "Twenty-seven years is enough."

In recent years, some board managers have repeatedly complained the order, which limits the amount of phosphorus in water flowing from sugar fields where it is used to boost crops, hampered restoration efforts. The sawgrass marshes thrive in water that has hardly any nutrients. The consent order forced the state to spend about $880 million to construct massive filtering marshes to clean the water. Farmers also adopted better farming practices. But while they have halved the amount of pollution, at times water is still too dirty.

The consent order lays out a series of complicated fixes that not only set limits, but require district projects to meet standards over time.

"They're not even finished building them to be able to say, 'Oh, this is working,'" said Earthjustice attorney Alisa Coe, who represented a number of environmental groups that intervened in the case. The order was designed so that its terms are not met until the projects are complete and water remains clean.

"The judge recognized the complexity of the case and rightfully denied the motion," she said.

The move also comes at a critical time for ongoing work. The U.S. Army Corps of Engineers is in the midst of drafting a plan to operate two South Dade projects that took decades to finish and have often pitted farmers and residents, who worry about flooding, against park officials, who worry that dirty water could choke the marshes with cattails. Last year state lawmakers also approved a massive reservoir expected to cost $3.3 billion. The Corps is now reviewing designs for the project and has raised questions over its ability to clean water.

The Florida Department of Environmental Protection was also in the process of crafting an "exit" plan to end the order, said agency attorney Charles De Monaco. The agency opposed the district move.

"For whatever reason, the district filed without following the process," he said. "I think they were directed by their board of directors."

Moreno, who said he had not planned on ruling from the bench, repeatedly quizzed attorneys about how his ruling might play amid so much uncertainty.

"It's none of my business who [DeSantis] appoints," he said, wondering what would happen "if he says there's a new sheriff in town and we want things this way."

He also questioned issuing a ruling without hearing any evidence supporting the district's claims.

"You want me to terminate because everything is hunky-dory," he said.

After Moreno's ruling, district board member Jim Moran, an attorney whose term expires in March and who has repeatedly pushed to end the decree, said he was disappointed.

"This case is only about one thing and that's the phosphorus coming out of the [Everglades farmland]. It's not about the algae. It's not about the red tide," he said. "We do not need three levels of enforcement."

He predicted a new governing board would follow DeSantis' instructions and complained that Moreno was too concerned with future matters and not the issue before him.

"It's not appropriate for the court to consider what happens in the future," he said. "I should have argued the damn case myself."

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