Turtle Talk

Notwithstanding its complexity, the matters at issue may be reduced to two essential questions. The first question is whether the Environmental Protection Agency acted arbitrarily and capriciously under the Federal Clean Water Act, 33 U.S.C. § 1251 et. seq. (“CWA”), and the Federal Administrative Procedures Act, 5 U.S.C. § 701, et. seq. (“APA”), by concluding that the 2003 amendments to the Florida’s Everglades Forever Act did not change water quality standards. The second question is whether the Environmental Protection Agency further erred in its subsequent review of the State of Florida’s Phosphorus Rule by finding compliance with the Federal Clean Water Act.

I conclude against the Environmental Protection Agency on both questions (with some limited exceptions pertinent to the Phosphorus Rule). Contrary to the Environmental Protection Agency’s written Determinations, it is my view that the Florida Legislature, in 2003, by adopting the State’s draft Long-Term Plan, as proposed by the South Florida Water Management District’s Governing Board, changed water quality standards under the Federal Clean Water Act, and violated its fundamental commitment and promise to protect the Everglades, by extending the December 31, 2006 compliance deadline for meeting the phosphorus criterion for at least ten more years. Turning a “blind eye,” the United States Environmental Protection Agency (“EPA”) concluded that there was no change in water quality standards. The EPA is patently wrong and acted arbitrarily and capriciously in reaching its conclusion. It did so by simply reading the words of specific sections of the Amended Everglades Forever Act (“Amended EFA”), rather than by connecting the dots to analyze its true effect. Its review is nothing more than a repeated imprimatur, i.e., acceptance without independent analysis, based on the State of Florida’s representation that the EFA Amendments did not change water quality standards.