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Should a trio of pumps designed to protect burgeoning suburbs southwest of Fort Lauderdale, Fla., from rising floodwaters be allowed to continue operating at the expense of pumping pollutants into the Everglades? Or, should they be shut off until the South Florida Water Management District, which operates the pumps, obtains a special permit under the federal Clean Water Act to continue running them? Those are the questions the 11th U.S. Circuit Court of Appeals grappled with Monday in Miami when it was asked by lawyers for the water district to overturn a September 1999 order by U.S. District Judge Wilkie D. Ferguson that shut down the pumps. The pumps have continued operating while the case has been on appeal. The autonomous water district does not dispute that the pumping station, known as “S-9,” has added high levels of phosphorus to South Florida’s river of grass. However, the district argues that the pollutants are not added “at” the pumping station, rather that S-9 “simply moves” existing urban storm water into the Everglades from other sources. That, the district argues, does not require a federal permit. The district also contends that if the pumps are shut down permanently and there is a deluge of rain, as there was with Hurricane Irene two years ago, there could be catastrophic flooding in Florida’s southwestern Broward County. NATURAL FLOW EAST The appeal grows out of a federal lawsuit filed by the Miccosukee Tribe and the Miami-based Friends of the Everglades in January 1998 against the water management district, which operates the pumping station. The suit claimed that the station has been back-pumping water laden with phosphorus, pesticides, heavy metal and other pollutants into the Everglades for years and has caused significant damage to the fragile ecosystem. “Were it not for the S-9 pump station, the water would flow to the east, away from the Everglades,” argues John E. Childe, a Palmyra, Pa., solo attorney who represents the Friends of the Everglades. The suit asked the court to issue an order requiring the district to obtain a National Pollutant Discharge Elimination System (NPDES) permit, which would require the pumping station to meet state and federal water quality standards. The Clean Water Act requires such a permit for every treatment facility that discharges into a body of water. Permits cap the amounts of pollutants that may be legally discharged. The system also involves monitoring, reporting, notification and record-keeping. In his order for summary judgment, Ferguson acknowledged that without the pumps, the contaminated water would not flow naturally into the Everglades. He also held that under the Clean Water Act, it is immaterial that the S-9 pumps are not generating the pollution; the district still must get a permit to operate them. Although low levels of phosphorous are present in the Everglades and cause no harm, the higher levels allegedly being dumped there have caused additional growth of exotic plants such as cattail, as well as a profusion of plants native to the area such as sawgrass, causing an imbalance to the ecosystem, according to the Miccosukee Tribe and the environmentalists. CITIES FEAR FLOODS Miccosukee attorney Dexter Lehtinen, a name partner at Lehtinen Vargas & Reiner in Miami and a former U.S. Attorney, argues in his brief to the 11th Circuit that the tribe didn’t ask that the pumps be shut down. Instead, he wrote, it sued as a last-ditch effort to force water managers into doing something about the pollution problem. But municipal officials worry that if the appellate court upholds Ferguson’s ruling, and the pumps are shut down, areas of Southwest Broward could flood, impacting hundreds of thousands of homes such cities as Weston, Pembroke Pines, Davie and Cooper City. That is particularly troublesome to Taj Siddiqui, city engineer and director of public services for Pembroke Pines, which has received an excellent rating from the Federal Emergency Management Agency for its flood control efforts. “We will not be able to maintain this standard if the pump has to be closed,” says Siddiqui. “We would see serious flooding and serious damage. The entire drainage system would be in danger of failure if the ultimate exit point is choked.” Lehtinen, in his brief, calls such claims little more than “an attempt to mislead the court.” He says there is no evidence that claims of “catastrophic flooding” would come to pass. The dispute is just one of many that has taken place over the years in an effort to clean up the Everglades. The Florida Supreme Court last month heard a case filed by property owners who claim polluters, and not homeowners, should have to foot the bill for cleanup of pollutants pumped into the Everglades by sugar growers and smaller farmers. The high court’s decision is pending. And in May, Senior U.S. District Judge William Hoeveler said he would continue to monitor the state-ordered cleanup of the Everglades, thus keeping pressure on the South Florida Water Management District to meet its deadlines to replumb and restore the fragile ecosystem.

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