The sugar industry wants the state to put off cleaning the Everglades of pollution until 2026. Judge William Hoeveler says no way.
By CRAIG PITTMAN
Published May 3, 2003
MIAMI - If Gov. Jeb Bush and the Legislature try to delay cleanup of pollution in the Everglades, a federal judge made it plain Friday he won't go along.
"Nothing the state can do can back out of those agreements," U.S. District Judge William Hoeveler said near the end of a four-hour hearing in a courtroom packed with lawyers, environmental activists, sugar industry representatives and state officials.
While acknowledging he cannot tell the Legislature what to do, the judge said, "We are going to stick to that agreement."
The agreement calls for cleaning up phosphorus pollution by 2006.
While pollution has fallen dramatically since the agreement, it has not reached the level scientists say is necessary.
State officials say they cannot meet the deadline, and a bill awaiting the governor's signature would delay it until at least 2013. The sugar industry wanted the deadline delayed until 2026.
Hoeveler said if state officials need more time, they should ask for "slightly more - but not 10 years."
During the hearing, a U.S. Justice Department attorney hinted broadly that his agency hopes the governor will veto the bill so federal officials will not have to "grapple with the questions" it raises.
Bush said earlier this week he would sign the bill, despite strong objections from several powerful members of Congress.
After the hearing, the state's top environmental regulator said that nothing has changed his support for the measure.
Instead, David Struhs, secretary of the state Department of Environmental Protection, said the Justice Department is probably just confused by changes that were made during the bill's swift march to passage and what he characterized as misleading news accounts.
Over time, Struhs promised, "they'll become increasingly comfortable with our position."
In a letter to the judge that did not mention the bill, Bush vowed to "take up a new sword" to fight for clean water throughout the entire Everglades.
The judge, who has overseen Everglades cleanup for more than a decade because of a 1991 court settlement, convened Friday's hearing because he was concerned about the state trying to tinker with the cleanup plan.
Hoeveler (pronounced HOOV-ler) said he had been reading news accounts about the legislation with "considerable apprehension."
Hoeveler listened patiently, if skeptically, to all sides, sometimes interjecting sharp questions. He asked an attorney for the state Department of Environmental Protection whether she knew who wrote the bill she was defending. She professed ignorance.
Thom Rumberger, an attorney for Audubon of Florida, later told Hoeveler that the original version of the bill was written by a sugar industry representative who was in the courtroom.
When Hoeveler spotted U.S. Rep. E. Clay Shaw, R-Fort Lauderdale, in the courtroom he invited him to speak.
Shaw said the bill that passed the Legislature earlier this week was "full of what I would characterize as weasel words." Hoeveler responded: "Absolutely!"
When U.S. Justice Department attorney Keith Saxe said his agency found the language of the legislation "puzzling," the judge said, "And me."
Saxe said federal officials have not taken a formal position for or against the bill, but he aimed some obvious digs at it. He pointed out, for example, that while the state originally agreed to curtail the amount of phosphorus flowing into the River of Grass by 2006, the bill now calls for merely implementing a plan to clean up the pollution by 2006.
The bill also would put into play a "long-term plan" for cleanup that was prepared by the South Florida Water Management District. "The plan has a 23-year time frame," Saxe said. "We need compliance ... by 2006, not 2026."
Saxe also pointed out several places in the bill where, instead of requiring a strict pollution limit, the Legislature says vaguely that pollution will be eliminated "to the maximum extent practicable."
"We see this language as being indeterminate," he said. But Struhs insisted that that phrase is "not a brake but an accelerator," allowing the state to clean up the pollution faster if it can.
Charles Lee of Audubon of Florida said Struhs and other state officials were practicing "denial of reality in its purest form."
Environmental activists and Dexter Lehtinen, an attorney for the only American Indian tribe that lives in the Everglades, hailed Hoeveler's comments as a clear signal that the judge takes a dim view of the bill.
Miccosukee chief Billy Cypress told the judge, "It seems like a sad day when the tribe has to come back to your honor and say you have to keep your eye on the agreement." He is afraid the state's position is "we'll get to it when we can."
But Ernie Barnett, the DEP's top Everglades expert, disagreed. "We view this legislation as helping us maintain compliance," he said.
