ELR Citation: ELR 20774
No(s). s. 89-6029, -6269 (11th Cir. Jan 28, 1991)

The court holds that agricultural interests may intervene by right in one count of a suit to establish the numeric water quality standards applicable to their property. In count I of its amended complaint, the United States contends that the South Florida Water Management District's (SFWMD's) failure to enforce state narrative water quality standards allows polluted water to damage the Everglades National Park and Loxahatchee National Wildlife Refuge. The court finds that because the narrative standard is not specific, the district court must set maximum pollutant concentrations in the final order to translate the narrative water quality standards into numeric standards. The court holds that under Florida's Surface Water Improvement and Management Act, agriculture has a direct, substantial, and legally protectable right to participate and comment on the setting of numeric standards. The court holds that agriculture's ability to protect its right to participate in administrative procedings will be impaired if the district court issues an injunction specifying numeric standards, because such an injunction will bind the SFWMD in its administrative proceedings and have a stare decisis effect in subsequent litigation. The court holds that agriculture is not adequately represented by the SFWMD because the SFWMD advocates a less restrictive water quality standard. However, the court holds that agriculture's economic interest is not legally protectable and is an insufficient basis to intervene as of right in the other counts of the amended complaint. The court holds that agriculture is not a third party beneficiary to a contract between the United States and the SFWMD because it is not an identifiable third party with direct obligations under the contract.

A dissenting judge would affirm the district court's denial of intervention on all counts.

Counsel for Appellants
William L. Earl, Timothy H. Crutchfield
Peeples, Earl & Blank
One Biscayne Tower, Two S. Biscayne Blvd., Ste. 3636, Miami FL 33131
(305) 358-3000

Counsel for Appellees
Jerry Jackson
Skadden, Arps, Slate, Meagher & Flom
1440 New York Ave. NW, Washington DC 20005
(202) 371-7000

Dexter W. Lehtinen, U.S. Attorney, Susan Hill Ponzoli, Ass't U.S. Attorney
155 S. Miami Ave., Rm. 700, Miami FL 33130
(305) 536-4471

Ellen J. Durkee
Appellate Section
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before HATCHETT and ANDERSON, Circuit Judges, and ESCHBACH^*, Senior Circuit Judge.