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Federal Judge Blasts EPA, Florida for Not Reducing Everglades Phosphorus Levels

July 30, 2008

By David Fleshler, South Florida Sun-Sentinel

Jul. 30–The Environmental Protection Agency and the state of Florida have dismally failed in their duty to protect the Everglades from harmful phosphorus washing off sugar farms, vegetable fields and suburban streets, a federal judge ruled Tuesday.

U.S. District Judge Alan Gold found the EPA was wrong to approve Florida’s highly controversial decision to grant an extension of at least 10 years to farms, cities and other pollution sources before they must meet a new, stricter phosphorus standard.

The judge, ruling in a lawsuit filed by the and Friends of the Everglades, blocked the state from issuing water-discharge permits that don’t comply with that standard.

The lawsuit arose from a 2003 session of the state Legislature, where sugar company lobbyists urged lawmakers to postpone a 2006 deadline for reducing phosphorus in water discharged into the Everglades to 10 parts per billion, a level that would protect the Everglades from being overrun with cattails.

The lobbyists prevailed, and furious environmentalists sued in state court but lost.

The Miccosukee Tribe and an environmental watchdog group, Friends of the Everglades, then sued the U.S. Environmental Protection Agency, saying the agency was wrong to approve the change.

In Tuesday’s ruling, Gold wrote that the Florida Legislature “violated its fundamental commitment and promise to protect the Everglades” in extending the compliance deadline to at least 2016. The EPA turned “a blind eye,” he wrote, by concluding the state had not altered water quality standards.

The Miami-based judge found that the EPA “condoned, without the requisite analysis, a de facto moratorium on compliance with the phosphorus” rule. The agency had a duty to analyze whether a 10-year extension of the deadline was reasonable under the Clean Water Act, the judge wrote, and failed to do so.

David Reiner, president of Friends of the Everglades, said Gold’s ruling will end the state’s ability to issue permits to discharge dirty water into the vast marsh.

Phosphorus is a plant nutrient that destroys classic Everglades habitat by fertilizing the growth of thick stands of cattails. These crowd out native saw grass, eliminating habitat for fish, frogs, snakes and alligators.

The sugar industry spent millions of dollars to pay for treatment marshes and other measures to reduce the phosphorus flowing from its cane fields and did not want to spend millions more to meet a difficult deadline. Two companies affiliated with the Fanjul family, which owns about 190,000 acres around the Everglades, intervened in the lawsuit on the EPA’s side.

Gaston Cantens, spokesman for the Fanjuls’ Flo-Sun Co., said Tuesday he was “flabbergasted” by Gold’s ruling but said he couldn’t comment further until he received a detailed analysis from the company’s lawyers.

U.S. Sugar, the other large sugar company in South Florida, has agreed to be bought by the state so its land can be used to help restore the Everglades. Under the preliminary terms of the deal, the company would remain in business for six years, so it would also be subject to the tighter phosphorus standards.

EPA spokesman Carl Terry said the agency was reviewing Gold’s ruling and that he could not yet comment.

Sarah Williams, spokeswoman for the Florida Department of Environmental Protection, said in an e-mail that the state was reviewing the judge’s ruling.

Staff Writer Andy Reid contributed to this report.

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