Biodiversity Legal Foundation  ·  Friends of the Everglades

Florida Biodiversity Project

 

 

 

By Fax and U. S. Mail

 

 

October 2, 2000

 

 

The Honorable Bud Shuster, Chairman

House Committee on Transportation and Infrastructure

Rayburn House Office Building, Room 2165

Washington, D.C. 20515

 

Re: Comprehensive Everglades Restoration Plan (“Restudy”) and S. 2796

 

Dear Representative Schuster:

 

The Biodiversity Legal Foundation, the Florida Biodiversity Project, and Friends of the Everglades wish to express our opposition to Title VI of the Water Resources Development Act of 2000 (S. 2796), the “Comprehensive Everglades Restoration Plan,” as it was approved by the Senate on September 25, 2000. This bill would approve the Central and Southern Florida Project Comprehensive Review Study – known as the “Restudy” – as a framework for restoration efforts; approve four pilot projects and eleven initial projects; authorize “programmatic authority” for certain projects; impose conditions on the projects; and leave other projects to be submitted for authorization in future Water Resources Development Act (“WRDA”) bills.   We respectfully request that the House not adopt S. 2796 or the House version of the Restudy bill (H.R. 5121) – that is similar in many aspects – unless they are amended to address the concerns noted below.

 

As noted by extensive comments of independent scientists and federal agency personnel, the Restudy is fundamentally flawed. The public was promised a comprehensive restoration proposal. However, we actually would receive a hugely expensive project that is heavily weighted toward water supply and flood control concerns. Unfortunately, S. 2796 does not cure the inherent problems of the Restudy and indeed, in certain aspects, makes restoration efforts even more susceptible to failure.  

 

We have included a detailed review of our concerns in the attached analysis.  In summary, our concerns include:

 

·         Federal legitimization of destructive flood control activities

·         Inadequate assurances that additional water will benefit the Everglades

·         Insufficient water for Everglades National Park and Biscayne Bay

·         Critically important native habitats are almost completely ignored

·         Rejection of biologically friendly, natural-system based restoration for expensive, unproven, high-technology efforts

·         Inadequate protection for water quality

·         Federally subsidized water supply for damaging levels of population growth in south Florida

·         Expensive, continuing federal funding for operation and maintenance costs

·         Delay in implementing needed decompartmentalization project

·         No prohibition against building a major international airport at Homestead Airforce Base

 

      While there are many issues involved in the effort to restore the Everglades, the management of the Central and Southern Florida Project over the last few decades vividly illustrates a critical point: without clear direction from Congress, the U. S. Army Corps of Engineers (“Corps”) and the South Florida Water Management District (“District”) will continue to play politics with the Everglades. And, as so sadly illustrated by the sharp decline of the endangered Cape Sable seaside sparrow – which serves as the proverbial “canary in the coal mine” for this unique area – the Everglades will be last on the list of priorities when management decisions are made unless Congress explicitly requires otherwise. Vague, multiple use language may satisfy those who take the most optimistic interpretation possible. However, those who are hostile to restoring the Everglades will not share the same sympathies, and they will utilize the conflicting provisions of S. 2796 to frustrate restoration efforts. 

 

            Assuming that some of the unproven technological approaches work, S. 2796 would result in marginal improvements for certain areas, even though there could be significant problems in other areas. So, some may believe that with a huge pot of money dangling in front of our faces, we should just be quiet, pass the bill, and hope the flaws can be corrected in the future.

 

However, if the proposal is not biologically sound, the public has a right to know. Expensive aquifer storage and recovery wells, the “lakebelt” – which is a nice sounding word to describe the destruction of thousands of acres of Everglades wetlands to create rock mining pits, “curtain walls,” and more pumps, canals, and levees are not “restoration” under any meaningful sense of the word. There also is a basic fiscal question: why should people across this country pay federal taxes to subsidize a massive water supply and flood protection project that may benefit only south Floridians?

 

            The Everglades desperately needs a comprehensive restoration plan. Unfortunately, despite the considerable effort that has been expended on S. 2796, the bill is not adequate, and we therefore object to its passage. Instead, we respectfully request that the bill be amended to address our concerns.  

 

 

Sincerely,

 

 

 

Sidney B. Maddock                             Brian Scherf                        Juanita Greene             

Environmental Analyst                    Board Member                      Conservation Chair

Biodiversity Legal Foundation    Florida Biodiversity Project    Friends of the Everglades

 

 

 

 

Serious concerns about the adequacy of the Restudy are not new. In December 1998, Everglades National Park (“ENP”) noted that the draft Restudy proposal – which is similar to the current proposal in many aspects – “does not represent a restoration scenario for the southern, central, and northern Everglades.” In addition, distinguished, independent scientists have voiced significant concerns. Professors Pimm, Ehrlich, Meffe, Orians, Raven, and Wilson noted there are “serious failings” in the Restudy that are “deep systematic problems, ones that are unlikely to be overcome by tinkering with the existing alternative.” Unfortunately, S. 2796 does not fix the flaws of the Restudy. Moreover, the bill contains provisions that almost certainly would be used to block meaningful restoration. Issues include:

 

1. Federal legitimization of destructive flood control activities

 

For years, the Corps and the District have routed too much water into the western part of Shark River Slough and too little water into Northeastern Shark Slough. The results are exacerbated by artificially low canal stages in the canals just east of the Everglades (L-31N and L-31W) that provide an efficient mechanism to further drain not only the developed areas east of the canal and levee, but also the natural areas – including ENP – to the west. Insufficient water in the east has allowed extensive exotic vegetation encroachment and excessive fires. In western Shark River Slough, high levels have damaged the vegetation. Thousands of acres have been adversely affected and the Cape Sable seaside sparrow, a small songbird that is indicative of the health of the marl prairie communities, has been brought to the edge of extinction.

 

Unfortunately, the bill (page 221, lines 12-17) appears to impose severe restrictions on the ability to modify the existing water management regulations, even though these regulations are responsible for damaging the Everglades. S. 2796 states that “Implementation of the Plan shall not reduce levels of service for flood protection that are – (i) in existence on the date of enactment of this Act; and (ii) in accordance with applicable law.” Agricultural and residential interests will use this language to claim the existing regulations cannot be modified in a manner that restores more natural flows and levels, because they will argue that this would not be maintaining levels of service for flood protection. In turn, they would point to the Corps, which has consistently refused to restore more natural water flows and levels, claiming that such action would “take” private property.

 

In response, one could argue that the existing water management scheme is not “in accordance with applicable law,” as the Corps is violating the Endangered Species Act (due to the Corps’ refusal to implement the Reasonable and Prudent Alternative to relieve jeopardy to the Cape Sable seaside sparrow, and the illegal taking of sparrows). However, if Congress agreed with this interpretation, why is the Committee Report silent on this critical issue? However, the Report’s language is more likely to hurt, rather than help, restoration efforts (e.g., the Committee’s intention that the Plan’s implementation “will not result in significant adverse impact to any person with an existing, legally recognized right to a level of protection against flooding”). As the Corps has operated the Project in a manner that has provided, in certain areas, additional flood protection beyond what Congress originally intended, the Committee language could be very harmful.

 

 The floor discussion in the Senate regarding the flood protection provision raises more questions than it answers. Senator Baucus noted that the provision was not intended to allow the Corps “to redirect to the natural system water from the human environment of unsuitable quality or quantity in an effort to provide the flood protection guaranteed in the section.”(Congressional Record, S.8932, September 21, 2000)(emphasis added). This arguably would prevent pumping from the Everglades Agricultural Area (“EAA”) into the Water Conservation Areas, as the EAA is not within the definition of “natural system” (page 192, lines 8-21). However, this language would not prevent the Corps from continuing to manipulate water within the “natural system” in a damaging manner. Thus, the Corps could continue the excessive, damaging releases from the S-12 structures into Everglades National Park (until the structures are removed). In addition, the floor colloquy has two more basic problems. First, it is not even clear that the Central and Southern Florida Project can be operated in a manner that is consistent with Senator Baucus’ intention, as the majority of the current capacity – and much of the proposed capacity – is designed to send water into the “natural system,” as opposed to other areas. Second, even if the system could operate this way, it is questionable whether the floor discussion is even consistent with the bill’s flood protection language. Thus, in determining legislative intent, a court may not look any further than the text of the bill.  And, if there were litigation involving this provision, a court ordinarily would defer to the Corps’ interpretation of the bill’s language and the Corps’ views on water management. The Corps’ anti-restoration views regarding flood protection are well known. The failure to clarify “flood protection” issues could create a significant roadblock to restoration efforts.   

 

2. Inadequate assurances that additional water will benefit the Everglades

 

Not only does the “assurances” section of S. 2796 not provide meaningful assurances, but it also sets up procedural hurdles that could result in restoration gridlock. The bill (page 212, lines 6-14) provides that no appropriation shall be made for constructing a project contained in the plan until the President and the Governor enter into a “binding agreement” under which “the State, shall ensure, by regulation or other appropriate means, that water made available under the Plan for the restoration of the natural system is available as specified in the Plan.” Of course, the Plan is flawed, so any “agreement” based on the Plan would be flawed. Moreover, the provision could provide Florida with a veto over restoration projects: without agreement, a project does not proceed, no matter how necessary it may be. What if the state withholds its agreement, citing to the bill’s provisions and claiming that a project would “reduce levels of service for flood protection”? It is not even clear one could challenge the matter in court, as the “enforcement” provision only addresses the “failure” the state or federal governments “to comply with any provision of the agreement….” If one could file a challenge, how do you prove the Governor is illegally withholding agreement, given the bill’s contradictory and vague provisions?  

 

            This is exacerbated by the rulemaking provision, which provides that the Secretary of the Army shall, after notice and opportunity for public comment, with the “concurrence” of the Governor and the Department of Interior (“DOI”), promulgate “programmatic regulations to ensure that the goals and purposes of the Plan are achieved.” This not only gives the Governor another means of torpedoing restoration efforts, but also places the drafting of the regulations under the control of the Corps – the agency that has consistently blocked meaningful restoration.

 

      The project specific assurances provision (page 217, line 20 – page 219, line 9) raises more problems. It provides that the Corps and the non-federal sponsor – the District – shall develop project implementation reports. These are critical, for they “identify the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system.” Unfortunately, as most recently shown with the Corps’ Interim Structural and Operational Plan, the Corps proposes an action; the DOI agencies raise well founded, significant concerns; the Corps ignores the concerns and proceeds; and the Everglades suffers.  A longstanding imbalance in power exists between the Corps and the DOI, and S. 2796 does not change the situation.  

 

The “project cooperation agreements” and “operating manuals” provisions share problems similar to those noted for the project implementation reports. And, there is a more basic concern:  S. 2796 will dramatically increase the workload of DOI. However, will DOI get the funding for necessary staffing increases? Thus, the existing imbalances will be increased by insufficient DOI staffing levels to review and comment on project documents. 

 

3. Insufficient water for Biscayne Bay and Everglades National Park

 

A damaging criticism of the draft Restudy was that it did not provide sufficient water for ENP and Biscayne Bay. In response, the final Restudy modeled the D13R4 scenario, which could provide additional water, albeit with significant questions about water quality. The bill (page 209, line 1 – page 210, line 11) throws up roadblocks to the Everglades ever getting this water, while not requiring a similar amount from some other source. While the additional flows from the Restudy proposal are subject to a “project-specific feasibility report,” a time limit is not given for the Corps to complete this report. Moreover, the report must include an assessment of whether the additional water can be delivered “while maintaining current levels of flood protection” – a hurdle which may not be met, given the viewpoints of the Corps and the District. 

 

4. Critically important native habitats are ignored

 

Even if S. 2796 were to result in the restoration of the timing, distribution, and amounts of water, it still would not be “comprehensive” because it does not make even modest efforts to restore and protect the natural communities that are essential to recovering south Florida’s biodiversity. While the public may have an image of the Everglades as a “River of Grass,” this image is biologically inaccurate, for it fails to acknowledge the numerous south Florida habitat types that historically existed but which now have been extensively destroyed and fragmented. The pond apple forests south of Lake Okeechobee, the cypress forests of southwest Florida, and the pine forests and tropical hardwood hammocks of southeast Florida – these were the communities that harbored incredible species richness. However, the Restudy does very little to restore these habitats: 52 acres of pineland and hardwood hammock restoration and 0 acres for pond apple restoration. In addition, the Restudy proposes the purchase of about 11,000 acres of land for restoration of other wetland habitat types. Compare this small amount to the purchase of over 180,000 acres for water storage reservoirs under the Restudy. S. 2796 doesn’t even go as far as the Restudy. Having a “restoration” effort without adequately addressing critically important native habitats is grossly inadequate. 

 

5. Rejection of natural-system based restoration for expensive, unproven fixes

 

Like the Restudy, S. 2796 heavily relies on expensive and technologically based actions. The bill continues the existing emphasis on a severely fragmented water management system that is based on the extensive use of levees, canals, pumps, and water storage areas. It makes these approaches even worse by excessively relying on relatively new, unproven, or yet to be developed technologies. For example, the Restudy proposes, depending on the location, either seasonal or year-round “curtain walls” to limit groundwater flow eastward. Such flow, however, is essential for Biscayne Bay (and Miami-Dade County’s drinking water), and currently, it is not known how to limit the flow while not harming the Bay. The bill authorizes the $10 million L-31N “seepage management” pilot project; and, as an initial project, subject to certain conditions, the Water Conservation Areas 3A/3B seepage management project, at a cost of over $100 million.  As another example, the Restudy includes aquifer storage and recovery wells with a capacity of as much as 1.6 billion gallons a day, and a total cost of over $1 billion; the bill includes authorization for the Caloosahatchee River ASR pilot project, with a cost of $6 million. In addition, the Restudy and the bill continue and expand the use of water storage areas, rather than making significant attempts to more naturally connect Lake Okeechobee and the Everglades and reestablish sheetflow.  At best, these and other projects are expensive gambles; at worst, they could cause significant ecological and human health concerns. 

 

6. Inadequate protection for water quality

 

Components in the Restudy could improve water quality in certain areas and at the same time threaten water quality in other areas. Thus, fundamentally, the Restudy does not assure the water quality of the Everglades. A 10 parts per billion phosphorus level, for example, is critical for the ecology of the area; yet, the Restudy does not give us a realistic guess at how this level will be reached. Even less attention is given to other water quality issues. Rather, while the Restudy contains certain components that will improve water quality, the end result still is not biologically sufficient. Thus, in addition to the proposed projects, the Restudy is a plan to do another plan: the Corps will prepare a “Comprehensive Integrated Water Quality Plan.”  S. 2796 does not cure this situation. 

 

7. Federally subsidized water supply for damaging levels of population growth in south Florida

 

The Restudy proposes structural components that would provide water supply and flood control benefits that could serve a population of south Florida that is twice as large as it is now. South Florida already is bursting at the seams. What will the quality of life be when the population doubles? In addition, one cannot address restoration while ignoring overpopulation. Significantly higher uses of resources and air and water pollution will accompany increased population. And, growth is destroying and fragmenting those very areas that are desperately needed for restoration, resulting in increased threats to hundreds of sensitive or listed species.  

 

8. Federal payments for operational costs and maintenance

 

In contrast to typical WRDA provisions, S. 2796 requires the federal government to pay half of the operational and maintenance costs for the activities authorized in the bill (page 204, line 21 – page 205, line 2); the total annual bill (state and federal) is expected to reach $172 million when all of the Restudy components are authorized. The federal government should not have to pay half of these costs, especially in light of the questionable environmental benefits. And, the provision sets a troubling precedent: where else will the federal government have to pay for water going to natural areas? 

 

9. Delay in implementing needed decompartmentalization project

 

            A positive aspect of the Restudy is the proposal to partially decompartmentalize Water Conservation Area 3. If implemented properly, this could help restore more natural distribution of flows into ENP. Unfortunately, S. 2796 states that no appropriation shall be made to construct the decompartmentalization “until the completion” of the Modified Water Deliveries Project (“Mod Waters”)(page 200, line 19 – page 201, line 14). The Corps initially stated in 1992 that Mod Water’s construction would start during FY 1993 and take five years. However, eight years have elapsed and it is not even clear when Mod Waters will be complete. While certain actions – such as the raising of the Tamiami Trail – could be completed soon, other actions, such as resolving the 8.5 Square Mile Area controversy – could take much longer. By tying decompartmentalization to Mod Waters, S. 2796 shows that flood protection issues have prevailed over restoration concerns.

 

 

 

10. No prohibition against building a major international airport at Homestead Airforce Base

            A proposal currently exists to turn the closed Homestead Airforce Base into a major international commercial airport. This is completely inconsistent with restoration, as the airport would be located only a few miles from Biscayne National Park and ENP, and would cause significant adverse effects on the environment including air and noise pollution. In a non-binding “Sense of the Senate” section, S. 2796 notes several environmental concerns about “development” at the base, and indicates that redevelopment “should be consistent with restoration goals….” (Page 226, line 15 – page 228, line 24). While this is better than the Senate saying nothing at all about the issue, the bill still does not take the correct action: prohibit the airport’s construction.