Full opinion text
MEMORANDUM OPINION HOEVELER, District Judge. THIS CAUSE is before the Court on the motion of the plaintiffs, Florida Wildlife Federation, National Wildlife Federation, Environmental Coalition of Broward County, Inc., Broward County Audubon Society and Southwest Ranches Association, for a preliminary injunction to halt construction of a segment of Interstate 75 (1-75) to be constructed from Andytown in Broward County to the Palmetto Expressway in Dade County. Plaintiffs have mounted a multi-pronged attack against the several defendants, United States Department of Transportation (USDOT), Federal Highway Administration (FHWA), Florida Department of Transportation (FDOT) and the United States Army Corps of Engineers (CORPS), all of whom are alleged to have violated various statutes, regulations and Executive Orders in connection with the planning, design and construction of the 1-75 segment. Broward County (County), which was not a named defendant, has sought and obtained leave to intervene in this cause to protect its interest in completion of the highway as planned. On June 10 and 11, 1980, this Court held an emergency hearing on plaintiffs’ motion for temporary restraining order, which motion was denied by order dated June 11, 1980. Hearings on plaintiffs’ motion for preliminary injunction were conducted on July 10, 11, 21 and 22, at which extensive testimony was received from five witnesses for plaintiffs and six for defendants. Many documentary exhibits, as well as maps, charts and diagrams, were admitted into evidence. The parties waived oral argument at the conclusion of the hearing and filed their written closing arguments on July 25. Based upon the memoranda of law, the testimony and exhibits received and the closing arguments (in memo form) of all counsel, the Court entered an oral ruling denying the motion for preliminary injunction on July 26,1980. Because of the great public interest attending this lawsuit, the ruling was issued as expeditiously as possible with a written decision, as required by Rule 52(a), Federal Rules of Civil Procedure, to follow. I. INTRODUCTION A. History of the 1-75 Project The United States Congress established a 41,000 mile interstate system in 1956 for purposes of national defense and interstate commerce. 23 U.S.C. §§ 101 et seq. This enactment included an interstate extension south to Tampa, Florida. In 1968, the Federal Aid Highway Act (Pub.L.No.90-495) authorized the addition of 1,500 miles to the original interstate system. As a result of this Act, 1-75 was to be further extended to the Palmetto Expressway in Dade County, Florida. In 1969 FDOT initiated a series of studies to establish the corridor for 1-75 south from its termination point in the Tampa-St. Petersburg Area. A draft environmental impact statement (EIS) for 1-75 from Fort Myers in Lee County to Miami in Dade County was completed and circulated by FDOT in 1971. This draft statement included the east-west Alligator Alley, Naples to Andytown segment of 1-75 and the north-south, Andytown-Palmetto Expressway segment. However, in 1972 a decision was made by FDOT and FHWA to separate the two segments. The basis of that decision was the fact that the east-west segment across the Everglades and the sensitive Big Cypress Swamp had different characteristics and factors influencing expressway location than the north-south segment through more urbanized areas. This decision was made prior to final location and environmental studies. At the same time 1-75 corridor location studies were going on, FDOT was conducting studies in Broward and Dade County for the development of expressways and parkways which resulted in a final report entitled The Principal Street and Highway Plan—1985. Planned facilities that significantly affected the 1-75 corridor location were the proposed Port Everglades Parkway, University Parkway, Opa-Locka Expressway and the Le Jeune-Douglas Expressway. In October, 1972, FDOT hired H. W. Lochner, Inc., to assist in preparation of location and environmental studies for the Andytown to Palmetto Expressway segment of 1-75. The study area was bounded by the Florida Turnpike on the east, U. S. Route 27 on the west, State Road 84 on the north and the Palmetto Expressway on the south. Five alternate routes, including a no-interstate alternative, were chosen for study and evaluation. One of the alternative routes was eliminated as a result of further analysis. Prior to the completion of the draft environmental impact statement for the Andy-town to Palmetto Expressway segment, an extensive public participation program was initiated in order to solicit and encourage broad public participation at the 1-75 planning stages. Communications were established with community and local governmental officials and agencies as well as civic and environmental groups. A draft environmental impact statement was then completed and submitted to FHWA by FDOT on February 27, 1973. FHWA approved and adopted this draft statement on March 3, 1973. On April 2, 1973, a corridor location public hearing was held in Broward County to acquaint the public with the results of the draft environmental impact statement. The final Environmental Impact Statement (EIS) for 1-75 was submitted by FDOT on June 5, 1973, and approved and adopted by FHWA on June 20, 1973. The EIS was approved by USDOT on September 11, 1973. Following approval of the EIS, the 1-75 project progressed to the design state. Public hearings were held on the proposed design plans in August and December, 1974, by the Broward County Transportation Authority and FDOT. A design public hearing was held on April 21, 1976. The design approval report was submitted to FHWA in August 1976. Final design approval was granted by FHWA on September 6, 1976. B. Present Status of the Project As of the date of the most recent hearings, the several segments of the 1-75 corridor and its interchanges were in various stages of development, ranging from preliminary planning to actual construction. The first stage, acquisition of the land required for the highway, was substantially completed; all of the right-of-way, excepting a few parcels near the State Road 84 (S.R. 84) interchange and adjacent corridor, had already been acquired at a cost of approximately $47,000,000.00. The next stage, preparation of construction plans at the District, or local, level of FDOT, was in process for several segments, with target dates for completion ranging from September 1980 to June 1981. Once completed, the District level plans are forwarded to FDOT in Tallahassee, where the proposed contract is advertised for bids. Several segments, including the S.W. 184th Avenue interchange and the Miramar Parkway interchange, were ready for bidding at the time of the hearing When the bids are opened and the contract awarded by FDOT, construction may begin. There were three areas where construction had commenced: the interchange at US Route 27 (US 27) and Andytown (target date for completion 1982); the corridor from Andytown to S.W. 190th Avenue, including the interchange at S.W. 196th Avenue (completion date in the fourth quarter of 1980); and the Sheridan Street interchange with its adjacent corridor (completion date in the first quarter of 1982). See, COUNTY’S Memorandum in Opposition to Motion for Preliminary Injunction, pp. 3-5. C. Issues Presented The major issues raised by plaintiffs in support of their motion for preliminary injunction are: 1. The adequacy of the Environmental Impact Statement (EIS) for this segment of Interstate 75. 2. The necessity for a supplemental EIS subsequent to the approval of the original EIS in 1973. 3. An alleged abuse of agency discretion by the Defendants USDOT and FHWA. 4. The adequacy of the procedures utilized by the defendant CORPS OF ENGINEERS in issuing Section 404 (33 U.S.C. § 1344) permits for dredge and fill operations in the wetlands. 5. Alleged violations of Executive Orders 11988 (Floodplains) and 11990 (Wetlands), 42 Fed.Reg. 26,951 and 26,961 (1977), by the federal defendants. To obtain preliminary injunctive relief on any one of these claims, plaintiffs must show: 1. a substantial likelihood that they will prevail on the merits; 2. a substantial threat that they will suffer irreparable injury if the injunction is not granted; 3. that the threatened injury to them outweighs the threatened harm the injunction may do to defendants; and 4. that granting the preliminary injunction will not disserve the public interest. Canal Authority of State of Florida v. Call-away, 489 F.2d 567, 572 (5th Cir. 1974). A preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion, which burden as to all four of the requirements remains at all times upon the plaintiffs. Id., at 573, 576. The primary justification of such a remedy is to preserve the court’s ability to render a meaningful decision on the merits. Thus, only those injuries that cannot be redressed by the application of a judicial remedy after a hearing on the merits can properly justify a preliminary injunction. Id. Plaintiffs have argued in this case that their burden is lessened because this is an environmental case and that a showing of violations of the National Environmental Policy Act (NEPA) would, without more, entitle them to a preliminary injunction. Whether or not this is the law of other circuits or other districts (see cases cited at pp. 30-32 of plaintiff’s memorandum of law), it is clearly not the law in the Fifth Circuit. Callaway, supra, the seminal case in this circuit on preliminary injunctive relief, was itself an environmental case under NEPA; and, as that case makes clear, the usual standards apply and plaintiffs must carry their burden as to each of the elements necessary for a preliminary injunction. To be sure, preliminary injunctions have often been properly granted in environmental litigation, [citations omitted]. In all such cases, however, preliminary injunctions have been issued not merely because some impact upon the environment has been alleged, but because the threatened harm has been properly shown to be irreparable, in accordance with the usual test for a preliminary injunction. Indeed, where no irreparable injury is alleged and proved, denial of a preliminary injunction is appropriate, [citations omitted]. Id. at 574. It is quite clear that the NEPA provides a new statutory basis for injunctions against proposed actions by federal agencies that will have significant effects on the human environment if no environmental impact statement has been filed, [citations omitted]. However, the general requirements for a preliminary injunction, even in a suit grounded on the failure to file an impact statement, have not been altered ... Consequently, the NEPA though relevant to the merits of the present case, has not altered the traditional tests for a preliminary injunction .... [emphasis supplied]. Id. at 577-78. After a review of the evidence presented at the hearings, the Court will examine each of the requirements for a preliminary injunction in light of the facts developed. II. THE ECOLOGY OF THE STUDY AREA Plaintiffs’ concern with the environmental impact of the highway is less with the highway itself than with the secondary development of the study area, which, it is claimed, will be “induced” by the presence of 1-75 through the heart of the study area. Plaintiffs have argued that both the Environmental Impact Statement and the Army Corps’ § 404 processes have given insufficient attention to the effect that this induced development will have on the various natural systems of the area—the Biscayne Aquifer, the Everglades, the wetlands and the floodplains. Passing for the moment the question whether plaintiffs have established the cause and effect relationship they assume to exist between the building of the highway and the growth they fear, it is necessary first to examine the testimony regarding the operation of each of these natural systems in some detail in order to understand the potential effects of development on its continued viability. A. The Biscayne Aquifer The Biscayne Aquifer is a natural body of earth and rock materials which stores and yields water. It underlies nearly all of South Florida, including all of Broward County, the vast majority of Dade County, and the southern portion of Palm Beach County. Along the coastal areas, the Aquifer extends some two hundred feet below the surface of the soil. As one moves inland from the coast, the Aquifer gradually becomes less thick, feathering out to nonexistence in the far inland areas. (Testimony of Gerald G. Parker, Sr., hydrologist with expertise in ground water). Rainfall onto the land overlying the Aquifer is virtually the sole source of water coming into the Aquifer. Although some 79 per cent of the water falling as rain is lost to evapotranspiration, recharge to the Aquifer from the remaining rainfall is about one million gallons per day per square mile of surface area. Water entering the Aquifer flows slowly from west to east and eventually into the Atlantic Ocean. (Parker testimony). The Biscayne Aquifer acts as a natural filtration system to clean and purify the water flowing into and through it. A variety of processes, some chemical and some physical, contribute to the purification systems. The heavy metal pollutants, for example, can combine with limestone particles in the matrix of the Aquifer through an ion exchange process, a chemical reaction which will bind the heavy metals to the rock, thus removing them from the water. Sand within the limestone cavities strains out particulate matter on the same physical principle as a sieve, allowing dissolved materials to pass through. (Parker testimony). Other purifying systems within the Aquifer include bacterial action (both at the surface, where bacteria feed on and remove nutrients from the water, and deeper in the soil, where different bacteria operate to reduce nitrates and sulphates), adsorption, absorption, dilution and dispersion. (Testimony of William Pitt, hydrologist with expertise in ground and surface water quality). Because the Biscayne Aquifer is the sole source of drinking water for the three million people living in the South Florida area, there has been, and continues to be, a legitimate concern with the “health” of the Aquifer. Dr. Parker, who first described, named and studied the Biscayne Aquifer in 1946, expressed his concerns both as to the quantity and the quality of water available from the Aquifer. It was his opinion that there may not be enough water available to serve the present population, even without the population increases projected for South Florida. As he conceded, however, the quantity problem is independent of 1-75 or its induced development in the study area. It is the presence of people that create the ever-growing demand for water and the possibility of a shortage, whether those people are living in South Miami or in the midst of the study area. The quality of the water in the Aquifer, as opposed to the quantity available, might be effected in several ways by the construction of Interstate 75 and the accompanying development predicted by plaintiffs around it. Because of the interrelationship between the surface waters above ground and the ground water in the Aquifer, any pollutant in surface waters is a potential threat to the purity of the Aquifer and the drinking supply of South Florida. Typical pollutants found in storm water run-off (surface waters after a rainstorm which have not yet entered the ground or any canal or lake) in a residential area of a density of three to four units per acre include: 1. nutrients, primarily nitrogen and phosphorus from fertilizers. 2. herbicides and pesticides. 3. gases, oils and other hydrocarbons and heavy metals, such as lead, from driveways and automobiles. 4. coliform bacteria from animal feces. In a commercial or industrial area, the runoff will usually contain more oil, grease and heavy metals and less of the other contaminants, as will run-off directly from a roadway or highway. (Testimony of Susan Uhl Wilson, aquatic biologist with expertise in land use effects on surface waters). Development may also increase the likelihood of a landfill or sanitary disposal site being placed in the study area. Landfills constitute a special hazard because of the presence of toxic and noxious material which can be leached out of the fill site and into the ground water by rainwater filtering through the substances placed there. (Parker testimony). Development may necessitate the digging of borrow excavations to obtain fill for construction work. Since a borrow pit “punches a hole” in the covering of the Aquifer and communicates with it, contaminated water flowing into the borrow pit will make its way into the Aquifer. (Parker testimony). Potential problems which may be caused by 1-75 itself, as opposed to the development it might induce, include not only the highway run-off containing lead and other contaminants but also the possibility of spillage from highway accidents as pollution sources. The pollutants from such a hazardous spill could contaminate an area ranging from one hundred feet to a couple of miles away. (Parker testimony). In addition to adding new pollutants, the highway and its induced development may also reduce the ability of nature’s built-in systems for purification to remove the pollutants already present. Draining of the wetted areas cause both oxidation of the muck lands to release additional nutrient pollution and the destruction of the plant covering of the ground which previously acted as a filtration system. (Wilson testimony). The above outline of potential threats to the Aquifer represents a “worst case” analysis predicated on the assumption that everything which might happen will happen, with disastrous results for the people of South Florida. While even the possibility of such results is frightening, it must not be forgotten that even plaintiffs’ experts conceded the existence of mitigating factors. First, despite Dr. Parker’s concern that the water supply is not sufficient to meet even the needs of the existing population, other witnesses expressed a contrary view. Peter Rhoads, Director of Resource Planning for the South Florida Water Management District (SFWMD), a State agency charged with responsibilities for water quantity and quality from both management and research perspectives, testified that South Florida is a water-rich area from a resource viewpoint, with far more water available than can be utilized. There is more than an adequate supply, not only for current demands, but also for the foreseeable and projected future needs of an increased population until at least the year 2000. Beyond that time, there are other potential sources and techniques which can be tapped to increase the water supply. These include the development of new well-fields, the increased use of Lake Okeechobee and the Conservation Areas as back-ups to the Biscayne Aquifer, the possibility of storage in, and utilization of water from, the Floridan Aquifer (a deeper Aquifer underlying South Florida), and more exotic technologies such as cloud-seeding (Rhoads testimony), desalinization of salt water and water re-use. (Pitt testimony). In short, the water resources of South Florida are clearly more than ample for the foreseeable future using only existing methods of water management. Even for the more distant future, the problem is not one of resource availability but rather of development of cost-efficient technologies for utilizing these abundant water resources. (Rhoads and Pitt testimony). Secondly, some of the “pollutants” referred to are not necessarily bad in and of themselves. Nutrients, or fertilizing agents, for example, cause plants to grow, which becomes a problem only when carried to excess. Too much fertilizer causes eutrophication, the overblooming of aquatic plants and algae, resulting in oxygen depletion and the death of fish. (Wilson testimony). The process can occur in canals, making them “scummy” (Wilson testimony), or in larger bodies of water like Lake Okeechobee, where it is to some extent a natural and inevitable stage in the life cycle of a lake. (Pitt testimony). Wilson, a witness called by plaintiffs, testified that this scummy canal syndrome would be the major problem if the study area is developed as planned at three to four residential units per acre. While not particularly aesthetic, scummy canals are hardly a threat to the lives and health of the citizens of Dade and Broward Counties. Wilson further testified that storm water run-off from the highway itself would be almost insignificant, especially if the highway were properly constructed with safeguards, such as swales, to contain and purify the direct run-off. Another of plaintiffs’ witnesses, Gerald Parker, also agreed that direct run-off from the interstate will not be a significant source of contaminants, except as to wellfields near the highway. A recent study has shown, moreover, that the major roadway pollutant, lead, can be eliminated as a groundwater pollutant by the use of swales adjacent to the road. At thirty meters from the roadside, no detectable amounts of lead are present in the runoff, as the lead has been “captured” by the soils and vegetation in the swale. (Pitt testimony). Parker’s concern with contamination from borrow pit excavations is mitigated by the fact that a borrow pit can pollute the Aquifer only if it is itself polluted. The use of swales and other design criteria mandated by the South Florida Water Management District’s Best Management Practices (Defendants’ Exhibit 18) will result in less pollution entering the Aquifer through borrow excavations. (Testimony of Peter Rhoads). Wilson’s other major area of concern, aside from scummy canals, should residential development occur in the study area, was that there would be increased pesticide and herbicide pollution. Another of plaintiffs’ witnesses, Dr. Parker, testified, however, that pesticide and herbicide pollution are greater in agricultural than in residential areas. This was confirmed by defendants’ witness Pitt, who indicated that nutrient pollution from fertilizers, as well as herbicide/pesticide usage, is greater where the land usage is agricultural rather than residential. Since the study area is at present largely agricultural, it would appear that residential development as planned would decrease, and not increase, pollution levels for nutrients, herbicides and pesticides. The United States Geological Survey (USGS) has conducted studies to measure the pollutants levels found in storm water run-off from different types of development. Direct run-off was collected, stored and tested from three different areas in Broward County—a commercial area, a low-density residential area (four to five homes per acre), and an interstate highway intersection. Testing of these samples revealed that no pollutants exceeded the safe drinking water standards established by the Environmental Protection Agency (EPA) with the exception of lead. There was also an aberrant finding of excess chromium in one test out of the 300 or so storms for which samples were collected. (Pitt testimony). These studies indicate that present storm water run-off in Broward County is not polluted to the extent feared by plaintiffs. Since the test sites were of a similar type and greater density than the development planned for the 1-75 study area, it is unlikely that there will be significant pollutant levels found in storm water run-off from the development occurring in the study area. There is likewise no present pollution of the drinking water supply in Broward County, though nearly all of the existing wellfields pumping from the Aquifer are in highly developed areas of the County in the coastal municipalities. Many of these well-fields are surrounded by intense commercial and industrial developments. (Defendants’ Exhibit 2). According to plaintiffs’ own experts, these existing wellfields are safe for drinking water (Parker testimony), and even serious pollution problems could be cured by purifying the water (Wilson and Parker testimony). A recent study done for Broward County by William Pitt identified the best areas in the County for placement of future well-fields, using criteria such as the depth of the Aquifer, the presence of chloride, the existence of nearby landfills and the type of material composing the substrate. (Defendants’ Exhibits 19-23). A composite map combining all factors analyzed shows the best areas for wellfields to be east of the 1-75 study area in areas already extensively developed. (Defendants’ Exhibit 24). Any secondary development in the study area should, therefore, draw its water supply from sources to the east, if new well-fields, are placed in optimum locations. Furthermore, since the existing wellfields, in areas of higher density than will be allowed in the study area, have shown no contamination, there is no reason to assume that any wellfields which might be placed in the study area will become contaminated by surrounding development. (Pitt testimony). Even as to landfills, which, according to William Pitt, are the worst sources of pollution to the Aquifer, there is little demonstrable threat of contamination of the drinking water supply. Both Parker and Pitt identified one particular landfill site in Dade County as the most dangerous. Pollutants from the landfill have been measured up to one-half mile from the site within the Aquifer. Beyond one-half mile, they are no longer detectable, having been removed by the various purification systems in the Aquifer. Pitt indicated that no landfill in the study area (assuming one is placed there and further assuming that its placement is attributable to the presence of I-75) could spread contamination as far as the Dade County site has done. This is because the Dade site has a transmissivity factor twice that of the study area. Transmissivity is a function of both the permeability and the thickness of the stratum composing the Aquifer in a given area. The study area contains large quantities of sand in the upper layers, giving greater filtration capabilities, while the Dade County landfill site has no sand filtration. Furthermore, since pollutants pose a threat to drinking water only if they reach a wellfield (Pitt testimony), it would appear that any landfill problems in the study area could be avoided by the simple expedient of placing no landfills there or of locating them more than one-half mile from wellfield areas. A final factor of potential consequence to the Aquifer is the danger of salt water intrusion into the fresh water supply. Because of the canals and other drainage efforts, the water level in the Aquifer has been reduced over a period of many years. Before the development of South Florida, the ground water level was high enough to hold back the salt water from the Atlantic Ocean, but as drainage has gradually lowered the water table, salt water has flowed into the Aquifer along the coast. (Pitt testimony). The area of the Aquifer underlying the coastal ridge has been brackish for many years (Parker testimony), necessitating the abandonment of wellfields in those areas in favor of wells further inland. Two such wellfields have been abandoned, both in Dade County, the first in 1917 and the second in 1941. Beginning in 1941, measures were instituted to check the intrusion by construction of a salinity structure in the canals. Though the process is not entirely reversible, it is presently under control, and in some areas the brackish water has actually receded to the east. Wellfields serving the 1-75 area would not be affected by salt water intrusion, as they would be too far inland, (Pitt testimony); and plaintiffs’ own witness Gerald Parker admitted the salt water intrusion would not likely increase as a result of 1-75. To summarize the extent of the threat posed to the Biscayne Aquifer and the drinking water supply of South Florida by the construction of 1-75 and any attendant secondary development: 1. The quantity of water available from the Aquifer is adequate, using existing technologies, for both present and projected needs through the year 2000. Other sources and technologies are available for development to satisfy further long-term demands. 2. Nutrient, pesticide and herbicide pollutant levels will likely decrease if the study areas is developed for low-density residential uses as planned. 3. Some increase in heavy metal, oil and grease pollution is possible from run-off from the highway itself. The degree of this increase is insignificant, however, particularly if proper design criteria are incorporated. 4. Studies in existing areas of commercial, residential and highway development show the direct run-off to be within acceptable limits as to all pollutant parameters except lead, which other studies have shown is captured by swales within thirty meters of the roadside. Development in the study area will not, therefore, result in dangerous levels of contaminants in the storm water run-off. 5. Borrow pit contamination is possible, but its degree can be mitigated by the use of proper design criteria. 6. Possible landfill contamination is mitigated by the type of stratum found in the study area and is controllable by proper location of landfill sites. 7. Even the most serious types of pollutants are eliminated within one-half mile by the natural purification systems of the Aquifer and pose no threat to the safety of our drinking water unless within that distance they reach a wellfield. In the event that a wellfield should become contaminated, the water can be treated to be made safe for drinking. 8. Existing wellfields are not endangered, even though they lie largely within areas more heavily developed than the study area will be. 9. There is no danger of increased salt water intrusion caused by the highway or development around it. B. The Everglades The Everglades is a wide shallow river, which at one time encompassed nearly all of Southeast Florida up to the coastal ridge. With the coming of civilization to the area, the Everglades has gradually been drained by canals to accommodate man’s agricultural, flood-control and development needs. Because of this drainage, the Everglades today, including its Conservation Areas, covers less than one-half the area it formerly occupied. (Testimony of James Hart-well, hydrologist with expertise in surface waters). The Conservation Areas to the east and north of the Everglades National Park are maintained as water storage and recharge areas in a more or less natural\wetted state. More than two-thirds of Broward County and approximately forty percent of Dade County is designated as Conservation Area. The surface area devoted to Conservation Areas in Broward County alone totals more than 800 square miles, and in Dade County it is still more. (Pitt testimony). Levees on the eastern side of the Conservation Areas, which were completed in 1953, hold back the stored water and separate the Conservation Areas from the drained “remnant Everglades” to the east, including the 1-75 study area. The study area is bordered on the west by US 27, immediately adjacent to which lies the levee demarcating Conservation Area 3A. (Rhoads testimony). Most of the water supply to the Everglades (about 85%) comes from on-site rainfall, with the remaining 15% coming from three canal systems. (Pitt testimony). Rainfall in the study area, excluding that lost to evaporation processes, soaks into the ground to recharge the Aquifer with the excess draining off into the canal systems. The surface water flow in the study area (whether in canals or as sheet-flow over the ground) like the flow of ground water through the Biscayne Aquifer, is from west to east. The major canals in the area, the South New River Canal (designated C-ll) and the Snake Creek Canal (C-9), discharge into the Atlantic Ocean. The South New River Canal at its western end has a back-pumping facility (called S-9), which allows for pumping of water against gradient, that is, from east to west, into Everglades Conservation Area 3A. (Hartwell testimony). There is a divide structure (S-13A) in the canal which separates it into east and west segments. Only the water in the western end of the canal can be backpumped. There is also a pump (S-13) at the structure which can forepump to the east, when the canal can carry it. (Rhoads testimony). Because of this backpumping of water from the western basin of C-ll, there is a direct hydrological link between the study area and the Everglades, and pollutants generated in the study area may ultimately find their way into the Everglades. (Testimony of Arthur Marshall, ecologist with expertise in the ecology of the Everglades). Backpumping of nutrient-laden waters into Lake Okeechobee, a process which began in the early 1900’s, has caused the Lake to eutrophy. (Marshall testimony). The process of eutrophication, however, was first detected in 1952. Subsequent studies in 1969 and 1975 have shown the Lake to be in the same relative state of eutrophication as first detected nearly 30 years ago. (Pitt testimony). Moreover, according to Pitt, all lakes in South Florida are in some stage of eutrophication, as this is a natural process which begins from the moment of the lake’s formation. Even Marshall conceded that backpumping from the study area will have no effect whatsoever on the eutrophication of Lake Okeechobee, as the water will not reach the Lake. Backpumping has also affected Conservation Area 2A, immediately north of State Road 84 and the study area for 1-75. This Conservation Area is maintained as a shallow pond with standing water all year round, unlike Conservation Area 3 to the south and west of S.R. 84. When run-off from agricultural lands containing large quantities of fertilizers is pumped into standing water bodies, the plant life undergoes enormous bloom. In Conservation Area 2A, a layer of organic ooze up to one foot thick has accumulated from the overgrown dead plant materials. This ooze must either be scraped out or oxidized by periodic draining for several months at a time to maintain the health of the system. (Marshall testimony). Water backpumped from the study area, however, does not go into Conservation Area 2A, but rather into 3A, which is not covered by standing water in any event. The South Florida Water Management District is conducting several ongoing studies concerning the water quality in the Conservation Areas and is looking for solutions to the problem in Area 2A. (Rhoads testimony). In addition to eutrophication processes, the Everglades is suffering from a variety of other ecological ills. Some species of plant and animal life may be endangered because of the changes in the Everglades environment. Entire areas of sawgrass have died. Many of the tree islands have disappeared. The muck layer, a prime indicator of the health of the Everglades, is being eroded at the rate of one inch per year, representing a loss of $250,000.00 per inch in agricultural value. Wetlands vegetation has been displaced by upland vegetation in many areas. All of these processes have been caused by the draining of the Glades, which has reduced the hydro period (the length of time during which the ground is covered by standing water) from its original 8 months per year to 4 months per year at present. The hydro period reduction kills wetlands vegetation and prevents its starting up. Because the muck layer is not protected from oxidation by the long periods of standing water, existing muck is destroyed and accumulation of replacement muck is rendered impossible. (Marshall testimony). It must be emphasized, however, that these threats to the continued viability of the unique Everglades ecosystem are not attributable to Interstate 75 itself or to any development attendant to it. The damage to the Glades began with the arrival of modern man in South Florida. As early as the 1890’s, canals were constructed to drain the land for cultivation. The Everglades Drainage District was set up in the early 1900’s and built several of the major existing canals, the St. Lucie, Palm Beach, and Miami Canals, in the 1920’s. Various federal agencies began to develop flood management projects in the late 1940’s and early 1950’s, after a major flood of the area in 1947. (Marshall testimony). From the point of view of the Everglades, plaintiffs put great emphasis on the fact that “flood control” as a justification for the draining of the Glades is a misnomer. The use of the word “control” contains the implication that standing water or flooding is an abnormal or undesirable condition. Conceding that the presence of standing water is the normal and natural condition of the Everglades necessary for the health of the system, the Court cannot ignore the obvious fact that such a condition is not compatible with human habitation in the area. Backpumping is likewise not a threat to the Everglades of recent origin. The S-9 backpumping station in the South New River Canal was constructed around 1930 and has been backpumping ever since. (Marshall testimony). Marshall indicated, however, that the construction of 1-75 in the study area will increase the level of back-pumping. This is because the area will need to be better drained to accommodate development. The water drained off must be backpumped, he believes, because the canals run through highly urbanized areas where land acquisition for enlargement purposes would be prohibitively expensive. Marshall’s opinion is not shared, however, by Mr. Pitt. According to Pitt, it is not necessarily the fact that development in the study area will cause increased run-off and more backpumping. The answer depends on how the development is carried out—if development follows the methods used in the 1950’s, there will be increased problems, but if the new requirements of the Best Management Practices are followed, there will be little increase in run-off. If backpumping should increase and if the water pumped into the Conservation Areas was polluted, it is possible that the water quality standards for water entering the Everglades National Park, as reflected in a memorandum of understanding between the. Park Service, the Army Corps of Engineers, and the South Florida Water Management District (SFWMD), might be violated. This agreement set both quantity and quality standards for water to be delivered to the Everglades. The quality criteria set maximum permissible levels for some 36 parameters. Twenty-one of these are pesticides, for which the permissible maximum is zero, that is, no detectable amounts of pesticides are permitted to enter the Everglades. (Marshall testimony). Both plaintiffs’ witness Marshall and defendants’ witness Rhoads of the South Florida Water Management District agreed that the water presently coming into the Everglades does not differ from the water historically going into the system. The water is of very good quality, exceeding the standards required by the memorandum of understanding. Although the District has several studies of both quantity and quality factors presently underway, Rhoads does not believe that the water supply of South Florida, and in particular the supply to the Everglades, is threatened by 1-75 and any secondary growth it might cause in the study area. The District has, in fact, adopted a formal resolution stating its position that Interstate 75 would not have an adverse effect on water resource management in South Florida and that any associated development is adequately regulated by existing rules and regulations of the District itself and other local government entities. (Rhoads testimony). Because of the interaction of several factors, the threat to the Everglades from backpumping is extremely attenuated. Since the water is backpumped through only one canal in the study area (C-ll), polluted run-off must first reach this canal before backpumping comes into play. C-ll drains only the upper portions of the study area, the lower portion being drained by C-9, which has no backpump. (Rhoads testimony). Development in this lower basin of the study area will, therefore, have no effect on backpumping operations. For reasons discussed with reference to the Aquifer in Part IIA of this opinion, supra, it is not likely that run-off into the canal will be polluted. Storm water run-off studies supra, show that run-off from areas developed more intensely than the study area will be is not contaminated in excess of safe drinking water standards, with the exception of the lead parameter, which is controllable to a large degree. Certain pollutants—nutrients, pesticides and herbicides—will probably decrease, rather than increase, if the study area is developed for low-density residential usage from its present agricultural usage. Thus, development in the study area is not likely to result in any significant degree of pollution reaching the South New River Canal, from whence it might be backpumped into the Everglades. To the extent that run-off is polluted, it is unlikely to do a great deal of harm, since most of the water backpumped through S-9 is not surface water run-off but ground water flowing through the soil and entering the canal through its banks. Development of the study area will, therefore, have little effect on backpumping, since the water being pumped is primarily from the ground and not the surface. (Pitt testimony). Although there was extensive discussion of existing pollution in Broward County canals, much of this pollution does not appear to constitute any significant hazard. Studies conducted several years ago measured several types of “pollutant” factors in various Broward canals, the major ones being dissolved oxygen and coliform violations. Minimum dissolved oxygen (DO) levels are necessary to support the biota living in the canal. DO levels below the minimum standard can be caused by many factors independent of pollution of any sort, including the inflow into canals of ground water which has had no contact with the air and, therefore, contains very little oxygen. Dissolved oxygen levels also vary with the depth of the canal, the temperature of the water, the time of year (during the dry season, DO levels are lower than in the rainy season), and the time of day (plants produce oxygen during the daylight hours in the process of photosynthesis and consume oxygen at night when photosynthesis stops). (Pitt testimony). The presence of coliform bacteria in excess of the standards is not a pollutant itself but rather an indicator of pollution and is largely due to the discharge to sewage effluent from treatment plants into the canals. This is a major “point” source of pollution in the eastern ends of the canals which discharge to tide. In the western areas, canal pollution is largely from non-point sources spread over a wider area and not attributable to an identifiable localized discharge site. (Pitt testimony). Since only the western area of one canal has backpumping capabilities, the sewage effluent to the east poses no threat to the Everglades. Since these studies were performed to identify and quantify pollution problems in the canals, measures have been instituted by Broward County to correct the problems identified. The South Florida Water Management District has also adopted preventive measures, the Best Management Practices, as a result of these studies, which are designed to, and will in fact, according to Pitt and Rhoads, improve the water quality. The Best Management Practices, or 16K-4 Regulations (Defendants’ Exhibit 18), include a variety of design criteria, such as on-site water retention to create storage and stop flooding; the use of swales and other vegetated areas to slow down and filter run-off; the use of catchment basins, lagoons and control structures in lakes. (Rhoads testimony). A permit in accordance with the District’s regulations must be obtained from the District for any activity within the District, ranging from a road culvert to a major canal, and the requirements are enforced District-wide, that is, basically from Orlando south, including all of Southeastern Florida. (Rhoads testimony). Further attenuating the backpumping hazard to the Everglades is the fact that C-ll canal does not backpump directly into the Everglades National Park but rather into Conservation Area 3A. The quality of the water presently backpumped through S-9 into the Conservation Area exceeds that required under the agreement for entry into the Park itself. If the water quality should deteriorate, however, the Conservation Area itself has purification mechanisms which remove large amounts of incoming pollutants. Studies have shown, for example, that 96% of the phosphorus, a nutrient component, coming into the Conservation Area is retained there, by plant life or in sediments. Trace metal pollutants are also removed, by a filtration process called the “kidney effect.” (Rhoads testimony). Since the water quality agreement pertains only to the inflow point from the Conservation Area to the Everglades National Park, many of the pollutants which might be backpumped from the canal to the Conservation Area would never reach the Glades, having been trapped or removed by the purification processes of the Conservation Area. The amount of water backpumped into the Conservation Area is extremely small in any event compared with the total volume of water in the Everglades, 85% of which comes from direct rainfall. Of the water which is backpumped, nearly one-half represents seepage replacement, water which has leaked out of the Conservation Area through or under the levee built to contain it. This seepage water has already been into the Conservation Area and escaped; replacing it thus adds no new pollutants to that system. (Pitt testimony). The Water Management District does, however, have plans to enlarge the back-pumping capacity of C-ll. At present the canal can deliver only about half as much water as the three pumps at the S-9 station can handle. The canal is, therefore, being enlarged to meet the capacity of the pumps. This enlargement is being done by a private land developer at no cost to the taxpayers and will have several salutary effects. (Rhoads testimony). First, the pump presently must draw the water level in C-ll down nearly to sea level to make the water flow to the pump station. This draw-down pulls water from the grounds, which is less pure than surface water. When the canal is enlarged, the pump will not exert as much draw down and pull on impure water, which will result in improved quality of the water being backpumped. (Rhoads testimony). Secondly, in addition to improved flood control and drainage, backpumping has another purpose wholly unrelated to the desires of developers for more and more land upon which to build and of ordinary citizens for homes not subject to periodic wetting, both of which groups Plaintiffs view as acting counter to the interest of the Everglades. The other function served by back-pumping and enhanced by the canal enlargement to make more backpumping possible is that of water storage in the Conservation Areas. (Rhoads testimony). Though Marshall expressed some skepticism as to whether this storage objective is realistic, Rhoads indicated that water “stored” in the Conservation Areas can be released during periods of drought to recharge the Aquifer and to backwash the canals eastward to flush out salt water intrusion. Backpumping is, therefore, not necessarily an unmitigated evil, but in fact serves legitimate needs and functions. The District has at least six studies presently underway relating to various aspects of back-pumping and the Conservation Areas. It is proceeding cautiously and is not prepared to initiate large-scale backpumping efforts until the longrange effects are known. The plans for increased backpumping, it must be noted, like the existence of some backpumping for the last forty to fifty years, is in no way dependent on the presence or absence of 1-75 or of growth in the study area. Backpumping has been occurring from C-ll since around 1931 and will continue to occur irrespective of 1-75. Summarizing the testimony regarding potential effects on the Everglades systems from 1-75 and induced growth in the study area: 1. The eutrophication of Lake Okeechobee has not worsened in recent years, and to the extent that the process is a natural one, it would occur eventually even without backpumping of nutrients into the Lake. Lake Okeechobee will not be affected in any event by backpumping from the 1-75 study area. 2. The possibility of eutrophication in the Conservation Areas, and indeed its actual occurrence in Area 2A, is increased by backpumping. The study area, however, will not drain into Conservation Area 2A but into Area 3A, which is not covered with standing water. Again, however, the eutrophication process is inevitable. Further, as eutrophication is a function of the nutrient loadings of the water, which are greater with agricultural than with residential land uses, residential development in the study area would not increase, and may actually decrease, eutrophication processes in Area 3A. 3. The general health of the Everglades has been declining ever since modern man decided that South Florida was a place he would like to inhabit. The draining of parts of the Everglades and the resulting changes because of the shortening of the hydro period are, however, irreversible from the coastal areas up to the levees around the Conservation Areas. While “flooding” the study area and most of South Florida to restore the area to its original Everglades state would probably be beneficial to the health of the Glades, it would be disastrous for the millions of people already living on land that was once part of the Everglades. 4. Backpumping is an extremely remote threat to the quality of water entering the Everglades. The danger is predicated on the existence of a series of assumptions, some of which clearly are unwarranted and all of which are at best debatable. (a) Since the water presently going to the Conservation Area from S-9 exceeds the water quality required even for the Everglades National Park, the development “induced” by 1-75 in the study area must somehow drastically raise pollutant levels over those presently existing from the development already present in the study area. (b) Run-off from the study area must be polluted far in excess of run-off from the usual residential, commercial and highway areas in Broward County. Studies from more heavily developed areas of Broward have shown run-off testing within acceptable limits for all factors except lead, and this one factor is largely manageable. The use of the Best Management Practices will further reduce the likelihood of significant contamination levels in the run-off. (c) Contaminated run-off from the 1-75 development must reach, by ground or surface flow, the one canal in the area that can backpump at its western end. A significant portion of the study area is drained by another canal without a backpump so that development in that part of the area will have no effect on the quality of water backpumped through C-ll. (d) Polluted water backpumped into the Conservation Area must proceed directly to Everglades National Park in such a fashion that the natural purification systems in the Conservation Areas are rendered ineffective to reduce pollutant levels. 5. Backpumping will likely continue, and perhaps increase, regardless of whether 1-75 is constructed. There are legitimate reasons, apart from development needs, that justify backpumping; and the Water Management District is taking great pains to insure that the process results in no environmental damage to the Conservation Areas or the Everglades. C. Wetlands Since the study area was formerly a part of the Everglades, it is classified, at least in part, as wetlands. Because of the draining of this area, it is now low-grade “stressed” wetlands in the process of becoming uplands. (Testimony of Wilson, Parker and Rhoads). Other parts of the study area not classified as wetlands at all. Wetlands are part of the “waters of the United States,” and are, therefore, subject to the strictures of the Federal Water Pollution Control Act (“Clean Water Act”), 33 U.S.C. § 1251 et seq. Section 404 of the Act (33 U.S.C. § 1344) establishes a permit program administered by the Secretary of the Army Corps, to regulate the discharge of dredge and fill materials into waters of the United States, including wetlands. That portion of Interstate 75 which requires wetlands permits encompasses 7.25 miles of the 23 mile segment in issue in this case, between N. W. 170th Street and Sheridan Street, including some land that is no longer wetlands. (Defendants’, except Broward County, memorandum of law, p. 27). Wetlands in their natural and productive state perform purification operations by filtration of contaminants in water coming into them through the wetlands vegetation. True wetlands are, therefore, environmentally sensitive and must be protected from degradation. (Wilson testimony). The wetlands in the study area, however, have already been degraded by drainage and are no longer healthy and productive. (Wilson, Parker and Rhoads testimony). These wetlands have become stressed because of the deprivation of water needed to maintain their health. The gradual reduction of the hydro period has resulted in the displacement of wetlands vegetation by uplands vegetation in many areas. This reduction has occurred over a long period of time as the drainage of former Everglades lands has proceeded, so that the hydro period now lasts, instead of eight months per year, only about four months per year. (Marshall testimony). According to Rhoads, the wetlands in the study area were doomed to degradation when the levees demarcating the Conservation Areas were completed in 1953. While it is possible to restore the study area wetlands to a productive state, restoration could be accomplished only by removing the levee and flooding the area. Since most of the land in the study area is owned by private interests, who would most likely object vociferously to such a procedure, flooding is not a reasonable nor likely possibility. The District has from time to time, however, reversed the process of degradation on a small scale by requiring developers to set aside an area of wetlands within a site to be developed for preservation in a more or less natural state. (Rhoads testimony). Some further loss of wetlands will result from the construction of 1-75 and from any attendant development in the study area. All the experts agree, however, that these wetlands are already degraded because of drainage unrelated to the highway. Thus the loss is, from an environmental standpoint, not significant, and from a practical viewpoint, irreversible whether or not 1-75 is constructed. D. Floodplains Much of the area surrounding the proposed 1-75 route has been designated as within the 100-year floodplain by the Department of Housing and Urban Development under the Flood Insurance Act, 42 U.S.C. § 4101(a). In fact, nearly all of Dade and Broward Counties is within the floodplain. (Defendants’, except Broward County, memorandum of law, p. 43). For that reason, no alternative road or site, including US 27, would escape the floodplain designation. (Id, p. 44). Because the 1-75 study area is within the low-lying floodplain, it is a flood-prone area. The likelihood of flooding in the area was increased by sloppy development practices followed in the past. Development occurring in the 1950’s, 1960’s and early 1970’s was done with inadequate fill criteria. While elevations for earlier development were too low, both Broward County and the Water Management District now require higher fill for any further development in the study area, thus rendering flooding less likely than previously. (Rhoads testimony). Though plaintiffs expressed concern that putting in more fill in the study área would raise the floodlevel, resulting in flooding of existing homes and other development in the area, the testimony demonstrates that this result is unlikely. Obviously if the entire study area were built up with fill by any given number of feet above the existing surface, the floodlevel for the area would be raised by the same number of feet because of displacement principles. Rhoads testified, however, that the fill criteria would not result in raising the entire surface of the study area. Only certain areas where development is actually placed would be built up, with corresponding areas required to be excavated or lowered. This balancing process maintains a proper ration of fill height to water storage capacity of the lower lying areas, so that the buildings themselves are located on “islands” in the basin, which are surrounded by “lakes” with a water storage capacity up to the 100-year flood level. (Rhoads testimony). Because the County and the District regulations require that the inflow to outflow ration remain the same after development as it was prior to development, there will be no significant change in floodlevels resulting from development in the study area. (Pitt testimony). According to both Rhoads and Pitt, therefore, the increased fill for development in the study area will not result in flooding of the existing development. There is a further reason why development in the study area will not raise the flood level, that is, the enlargement of the South New River Canal (C—11). This enlargement will improve the drainage in the entire canal basin because the pump capacity at S-9 will be more fully utilized. The improved drainage will lower the floodlevel for the entire basin, benefitting existing, as well as new, development. (Rhoads testimony). The evidence, therefore, indicates that the floodplain levels will not be significantly affected by 1-75 or by any attendant development it might cause in the study area. III. WILL INTERSTATE 75 INDUCE DEVELOPMENT? The crux of plaintiffs’ case is that the construction of Interstate 75 in the study area will induce massive residential, commercial and industrial development of that area. It is this induced secondary growth, and not the highway itself, which plaintiffs fear will result in harm to the Aquifer, the Everglades, the wetlands and the floodplain. For purposes of discussing the potential environmental effects of the interstate in Part II, supra, it was assumed that the highway would cause such development. It is now necessary to examine whether this assumed causal relationship has, in fact, been demonstrated by the evidence. On this issue, the experts differ sharply. Plaintiff’s witnesses were virtually unanimous in their opinions that 1-75 will indeed cause secondary growth in the study area. (Testimony of Parker, Marshall and Robert L. Morris). The expertise of two of these witnesses, Parker and Marshall, lies in other sciences, however; thus their opinions on this issue are entitled to less weight than those of witnesses whose primary specialty is in development-oriented areas. Plaintiffs’ only witness with such expertise was Robert L. Morris, a traffic engineer and transportation planner. Morris explained that there is a direct relationship between transportation facilities and development. “Induced” growth is development which results directly from increased accessibility to means of transportation. The construction of a roadway always causes more growth in the area surrounding it, assuming there is a market demand for development. The availability of transportation affects both the timing and intensity of development in an area, accelerating