ELR Citation: ELR 20122
No(s). s. 04-21448 et al (S.D. Fla. Apr 14, 2010)

A district court granted in part plaintiffs’ various motions to compel state and federal defendants to comply with a prior court order related to the implementation of water quality based effluent limitations (WQBELs) for phosphorus in the Everglades. Under the CWA, EPA is obligated to require the state of Florida to establish the manner and method of obtaining WQBELs within a time certain. Here, EPA failed to proceed with the utmost diligence required to discharge its statutory duty. It has chosen to “drag its feet” on issuing a court-ordered determination while allowing Florida to continue to rely on old permits and issue new administrative orders (AOs) laden with “avoidance mechanisms.” This dereliction of duty is contrary to the CWA. At the same time, the defendants’ suggestion that the violative AOs, which are incorporated into the NPDES permits at issue, cannot be disturbed is rejected. Florida has failed to fulfill its duties by issuing NPDES permits that do not comply with the CWA and its implementing regulations. As such, the NPDES permits, including the AOs, must be overridden and/or modified as necessary to ensure compliance with the CWA. Relying on its equitable powers, the court therefore directs defendants to take specific steps set out in the judgment in order to ensure compliance with the CWA.

[A prior decision in this litigation can be found at 38 ELR 20205.]