In March 1995, the Miccosukee Tribe of Indians filed suit against the United States Environmental Protection Agency (EPA) pursuant to the citizens suit provision of the Clean Water Act Section 505(a) in federal court in Miami.  The suit alleged that the EPA Administrator had failed to comply with the mandates of the Clean Water Act by not reviewing the Everglades Forever Act.  They contend that the Everglades Forever Act passed in 1994 had effectuated a change in the state's existing water quality standards. Under the Clean Water Act 33 USC §1313(c), a state must submit all revisions or changes to a state's water quality standards to the EPA for review and approval.

     In its suit the Tribe sought to compel the EPA to treat the Everglades Forever Act as a change in state water quality standards and require Florida to initiate public notice and hearing requirements.  It also urged the court to find that the Everglades Forever Act violated the antidegradation policy of the Clean Water Act, 33 USC § 1313(d)(4)(B).

      At the trial court, the government moved to dismiss the complaint for lack of subject matter jurisdiction as the Tribe's allegations did not involve a nondiscretionary duty as required under the citizen suit provision of the Clean Water Act.  The court granted the motion to dismiss, in part, based on the state's representation in a letter that they did not consider the Everglades Forever Act to be a change to the state's existing water quality standards.  Since the state did not submit the Everglades Forever Act as a change in the existing standards, it had not triggered a mandatory duty on behalf of EPA. 

     In a February 1997 decision, the 11th Circuit Court of Appeals did not agree with the trial court and reversed.  It determined that the trial court had to perform an independent analysis of whether or not the Everglades Forever Act constituted a change in the state's existing water quality standards and could not rely solely on the state's representations.  If pursuant to a hearing, the trial court determined that there was a change, then there would be a mandatory duty on behalf of EPA to review those changes, fulfilling the jurisdictional requirements of the citizen suit provision.  The case was remanded to the trial court to conduct this inquiry and it was ordered to apply a summery judgement standard when ruling on the motion to dismiss.

     After the appellate decision, the EPA decided to conduct its own inquiry on the impact of the Everglades Forever Act on the state water quality standards.  It held a public hearing in West Palm Beach on November 19, 1997, and had a period for public comment that closed on November 28, 1997.  EPA's decision is due January 27, 1998. 

     The EPA can decide that the Everglades Forever Act caused no change in the state water quality standards, or if there was a change, it meets the requirements of the Clean Water Act.  In either case, there would be no action required by the state.  The EPA, however, could decide that the Act did effect a change that was not in compliance with the Clean Water Act.  This decision would then require the state to bring the changes into compliance within 90 days.  Should the state not comply, EPA can promulgate its own standards pursuant to 33 USC §1313(c)(4).

     The judicial proceedings have been stayed pending the decision from EPA.   It is unknown at this time what effect the EPA decision will have on the trial.

Perla Sole-Calas is an attorney with the South Florida Water Management District focusing on representing the District in administrative, state and federal courts.