EVERGLADES RESTORATION IN CRISIS

SINCE WRDA 2000

Testimony by

Billy Cypress, Chairman

Miccosukee Tribe of Indians of Florida

Committee on Environment and Public Works

United States Senate

September 13, 2002

My name is Billy Cypress, Chairman of the Miccosukee Tribe of Indians of Florida. I've testified to this Committee before and my written testimony contains a full description of the Miccosukee Tribe's place in the Everglades and its role in Everglades restoration, so I will not explain that now, except to point out that we are the only people to live in the Everglades, that much of the Everglades is tribal land, and that the Tribe has adopted EPA approved water quality standards for the Everglades under the Clean Water Act.

Thank you for the opportunity to testify on the status of Everglades restoration since the passage of the Water resources Development Act of 2000. WRDA 2000 was a positive step on which this Committee spent much productive labor. But agency actions since its passage leave much to be desired -- and in some cases the agencies are retrogressing, actually taking steps quite harmful to restoration.

THE IMPORTANCE OF RESTORATION

AND FAILURES IN IMPLEMENTATION

RESTORATION AND THE COURTS -- (1) In February 2002, a federal district trial court found that the Corps of Engineers had acted arbitrarily and capriciously in adopting an Interim Operating Plan for the Cape Sable Seaside Sparrow (the U.S. did not appeal). (2) Just this month (September 2002), the Eleventh Circuit Court of Appeals found unanimously that the federal government had used improper procedures in developing restoration policy by establishing an advisory committee with the State of Florida without meeting public notice and meeting requirements of the Federal Advisory Committee Act (FACA). These cases were both brought by the Tribe. (3) In July 2002, a federal district court found that the Corps acted unlawfully in attempting to condemn homes in the long-delayed Modified Water Deliveries Project. This case was brought by the homeowners. (4) In February 2002, the Eleventh Circuit Court of Appeals upheld a trial court finding that the State of Florida (Water Management District) was violating the Clean Water Act by discharging pollution into the Everglades in Broward County. This case was brought by the Tribe.

Each of the cases involved serious (not just technical) matters of Everglades policy and policymaking. But, it seems, that nothing bad ever happens to governments when they are found to be in violation of the law. They just go on like nothing happened. In fact, the senate just rewarded the unlawful behavior of the Corps in the Modified Water Deliveries Project by passing an amendment to the Interior Appropriations Bill which legitimizes its unlawful behavior. How can any citizen or Indian Tribe trust the law when agencies can ignore the law for years and then, when a court finds the action to be indeed unlawful, Congress just changes the law. The "rule of law" does not mean that you just change the law to fit whatever an agency does; it means that the agency conforms its behavior to the pre-existing law. So far, Everglades restoration is a case study of trashing the rule of law, legal promises made by Congress but broken at a whim, phony guarantees of protection to citizens and the Tribe which mean nothing when the time comes to rely on them.

WATER QUANTITY (HYDROPERIOD RESTORATION): MOVING FURTHER AWAY FROM NATURAL LEVELS AND REJECTION OF THE NATURAL SYSTEM MODEL –

Several federal agencies (Department of the Interior and the Corps) have decided that hydroperiod restoration is not the priority goal, notwithstanding the CERP priority on such restoration. The 1999 CERP Plan provided that "getting the water right" (hydroperiod and pollution; i.e., water quantity and quantity) was the means and goal of Everglades restoration. This is the Tribe's position. If we achieve water quantity and quality, other biological elements will follow. But the federal agencies now object to this approach, because hydroperiod restoration will have a temporary negative impact on any non-natural conditions which some animals and plants (i.e., some species) like better than natural conditions. These agencies are not willing to restore the Everglades if the natural Everglades is not the best condition for their client species which like the non-natural Everglades better!

This is illustrated by the actions of the Corps and Fish and Wildlife Service in connection with the Cape Sable seaside Sparrow, which move further away from natural water levels in the western Everglades than even the C&SF project had caused. In the western Everglades (tribal areas), the C&SF project caused waters north of Tamiami Trail to be higher than natural; and C&SF caused waters south of the trail to be lower than natural. Believe it or not, actions being taken now are causing water north of the Trail to be even more unnatural, even higher than C&SF levels (which we are supposed to be fixing). Likewise, waters south of the Trail are being forced even more unnatural, lower even than C&SF levels.

This absurdity has resulted in Fish and Wildlife Service claims that we cannot rely on the Natural System Model (NSM), whenever FWS doesn't like the model. Even though the validity of NSM was central to the whole idea of CERP, FWS now picks and chooses when it will rely on NSM and when it just decides that NSM is no good -- essentially, disregarding this scientific model whenever it doesn't produce the results FWS wants.

This is outrageous, just like Alice-in-Wonderland. And its destroying tribal lands north of the Trail. In March 2002, the Amended Biological Opinion finally acknowledged that 88,300 acres of Everglades north of the Trail (tribal lands) will be degraded by this action.

The Tribe's statement on this critical issue, with graphs proving the facts, is contained in a special section of the Report of the South Florida Ecosystem Task Force (and it is attached to my written testimony).

WATER QUALITY (POLLUTION ABATEMENT) -- Most water quality improvements are considered to be pre-CERP under State programs. These State programs are behind schedule and no method of achieving final water quality standards by the 2006 deadline has been selected. The federal district court overseeing the federal consent decree on water quality has expressed interest in the apparent problems in this area and has scheduled an extensive hearing for next week.

A SUMMARY OF CRITICAL ASPECTS

OF EVERGLADES RESTORATION

There are several critical aspects of Everglades restoration which are not well understood at the highest levels of federal and state administration (due to inevitable time constraints and reliance on pre-existing bureaucracy) and which are exploited to achieve distortion by intermediate levels of bureaucracy (to achieve narrow agendas tied to client or constituent groups, such as environmental group ties within the National Park Service). These critical aspects include:

1. DESTRUCTION OF NON-FEDERAL EVERGLADES (STATE AND TRIBAL EVERGLADES) -- There is more freshwater Everglades to be saved outside of Everglades National Park and the Loxahatchee National Wildlife Refuge than within the Park and the Refuge, but federal agencies discriminate against the state and tribal Everglades, sacrificing the largest part of the remaining freshwater Everglades in favor of the smaller federal Everglades in the Park and the National Wildlife Refuge

*** The remaining "River of Grass" to the north of the Park and to the south of the Refuge (outside of federal control), in the Florida Water Conservation Areas and Miccosukee Indian Country, is much larger than the Park and the Wildlife Refuge.

*** Everglades National Park itself is less than half of the remaining freshwater Everglades.

*** The federal agencies (DOI, Park, etc) always seek their own aggrandizement at the expense of the rest of the Everglades

*** The Department of the Interior seeks to sacrifice the larger Everglades in State and Tribal control to serve a sub-optimal, selfish goal of absolutely perfect treatment of their lands.

*** The federal government always gives priority first-class status to federal land, while giving equally important State, Tribal, or private lands only second-class status or no status at all.

RECOMMENDATIONS -- (A) Direct that all of the remaining Everglades be treated equally (all Everglades within the official Everglades Protection Area), with no preference for federal lands over State or Tribal lands (an "equal protection" concept).

(B) Review Department of Justice litigation positions to provide full protection and equal treatment of all remaining Everglades, including tribal Everglades.

2. ENDANGERED SPECIES ACT DISTORTIONS -- The Department of the Interior in the prior Administration used the ESA to try to wrest control of the entire "Central and South Florida Project for Flood Control and Other Purposes" from the Corps of Engineers, posing a serious threat to balanced restoration and to Tribal Everglades, as well as to policy control of the process

*** DOI has tried to gain control of all water delivery schedules throughout the South Florida region through the Endangered Species Act, both directly (through "Biological Opinions", etc) and indirectly (through illicit coordination with client environmental groups to induce agency-supported lawsuits).

*** DOI control of the Project, which is a congressionally-authorized Corps of Engineers project, would be a disaster for South Florida residents (reduced flood protection and water supply).

*** DOI control of the Project also would be a disaster for the Administration, because DOI bureaucrats would constantly constrain the administration's options, "setting up" the Administration for criticism and hostile (agency-induced) litigation from client environmental groups.

RECOMMENDATIONS -- (A) Review the use of the ESA in the Everglades at the DOI Secretary level, with input from outside the agency staff channels.

(B) Gain control of Department of Justice litigation strategies (which have been previously in the hands of attorneys tied politically to the prior Administration's views).

3. DIMINISHED FLOOD PROTECTION AND DESTRUCTION OF TRIBAL LANDS AND PRIVATE PROPERTY -- Everglades restoration as implemented has resulted in tragic and unnecessary flooding of residential homes and destruction of private property

*** The Comprehensive Plan of the Corps of Engineers, as approved by Congress, demonstrates that Everglades restoration need not diminish flood protection and destroy tribal lands and other private property rights

*** The Department of the Interior (especially National Park Service and Fish & Wildlife Service) have used restoration to deliberately establish park "buffer zones" (which Congress has refused to authorize) and priority for Park lands, and to condemn and flood private property (which Congress has specifically protected in Everglades legislation), by raising canal water levels without providing the congressionally-mandated collateral flood protections.

*** Unnecessary flooding of homes (including the City of Sweetwater) and tribal lands in the last three years was caused by Park Service intransigence, Administration-coordinated environmental group pressure, and CEQ interference, all aimed to distort the work of the Corps of Engineers.

RECOMMENDATIONS -- (A) Instruct the Corps of Engineers to achieve the flood protection goals of the Central and South Florida Project, including flood protection of tribal lands, as well as the environmental goals.

(B) Instruct the Department of the Interior to cease urging the flooding and condemnation of homeowners.

CONCLUSION

Everglades restoration programs since the enactment of WRDA 2000 are in a crisis because federal and state agencies have not taken seriously their duties to follow the law and to restore proper water flow and water quality. Each agency has its own narrow procedures and goals, and none has committed fully to "getting the water right"; that is, none has committed fully to re-establishing natural water levels and water quality. No one suffers more from this failure of vision, from this failure of commitment, than the Miccosukee Tribe of Indians which has called the Everglades home for centuries

Attachment #1 to Testimony of Billy Cypress

September 13, 2002

THE MICCOSUKEE TRIBE IN THE EVERGLADES

I have served as Chairman of the Miccosukee Tribe of Indians of Florida for more than twelve years and as a tribal elected official for more than twenty years. At the outset, I want to provide some interesting information about the Miccosukee Tribe of Indians of Florida and the Tribe's role in the Everglades:

*** The Miccosukee Tribe is a federally-recognized Indian Tribe.

*** Miccosukee Indian Country is within the Everglades (Water Conservation Area 3-A and Everglades National Park, within the Everglades Protection Area).

*** The only Tribe with lands within the Everglades (Miccosukee Indian Country, consisting of Indian Reservation lands, Congressionally-recognized Perpetual Lease lands, Congressionally-established Miccosukee Reserved Area lands, and Miccosukee Dependent Indian Community lands within the Everglades Protection Area).

*** Its members are the only people to live within the Everglades (Indian and non-Indian in Everglades Protection Area).

*** The Tribe is approved with state status under the Clean Water Act.

*** The Tribe has set federally-approved water quality standards for the Everglades (including phosphorus).

*** The Tribe's members are guaranteed by Congress the right to live traditionally within Everglades National Park and Big Cypress National Preserve.

Attachment #2 to Testimony of Billy Cypress

September 13, 2002

CONFLICTING PRIORITIES IN HYDROPERIOD RESTORATION

AND THE LACK OF A VISION IN EVERGLADES RESTORATION

Dexter Lehtinen

Member, South Florida Ecosystem Restoration Task Force

August 26, 2002

(Reprinted from the Task Force Report for 2002)

The Task Force Report, while admirable in many respects, fails to address one of the central problems in Everglades restoration -- that is, the inherent and continuing conflict between agency programs or missions (including statutes) and the central goals of restoration (hyroperiod and water quality restoration). If these conflicts are not resolved in favor of hydroperiod and water quality restoration, and narrower agency advocacy of divergent goals is not eliminated, then Everglades restoration will fail. The Task Force Report's ambiguous reference to "short-term or interim management actions which are not immediately consistent with long-term goals" (pages 5 and 22) has been explained as (and should be properly understood as) referring to temporary adverse consequences of initial steps in implementing restoration projects. But it could be improperly twisted to justify adverse consequences of agency action which is not in any way an initial step or part of hydroperiod or water quality restoration. That is, some agencies directly damage hydroperiod and water quality for their own narrow goals (based on pre-existing agency missions or their interpretation of existing law).

When individual agency programs or missions conflict with broad restoration goals, the broad goals should prevail if restoration is to be achieved. This is a truth which neither agencies nor the Task Force are yet willing to face. In fact, the substitution of agency programs or missions over broad restoration goals is precisely the problem which restoration has unsuccessfully faced for many years and which has contributed to restoration delays and continued degradation.

Despite the apparent priority of hydroperiod (water levels) restoration to natural levels and water quality improvements, there are different agency goals or legal interpretations which conflict with or inhibit natural hydroperiod restoration. As a logical matter, it is clear that species which favor the current degraded and disturbed conditions of the Everglades will be adversely affected, in an immediate short-term sense, by natural hydroperiod restoration. It must be remembered that the current disturbed and degraded condition of the Everglades is "unnatural" because it differs from the historic natural conditions, which means that the Everglades is a "degraded habitat" when measured against historic natural conditions. The historic conditions were not favorable to species other than those species which thrived in such historic natural conditions.

It both logically possible and factually demonstrable that certain species find the "degraded" habitat to be better for them than the natural habitat. Therefore, when restoration occurs, the movement from poor or "degraded" conditions toward "better" or natural conditions, is considered positive and progressive when measured against natural restoration standards. But this same positive movement instead constitutes a movement from good conditions toward poor conditions for any single species which currently favors the degraded conditions. Therefore, "habitat improvement" for the natural Everglades is instead "habitat degradation" for a single invasive species.

Natural restoration can occur only if natural restoration is given the priority over protection of the degraded habitat which a single species may favor. The long-term benefits of restoration must be accepted as superior to the short-term benefits of maintaining degraded conditions for the benefit of single species.

An outstanding example of such a problem is the current urging of the U.S. Fish and Wildlife Service (through Biological Opinions under the Endangered Species Act) to maintain unnaturally low water levels below Tamiami Trail (in Everglades National Park, south of the S-12 structures) in favor of the Cape Sable Seaside Sparrow, which favors such an unnatural habitat. This action has the secondary effect of maintaining unnaturally high water levels north of Tamiami Trail (in Water Conservation Areas and Miccosukee Tribal lands).

Charts #1 and #2 show that, under the actions sought by USFWS and proposed by the Corps of Engineers for 2002, water levels below Tamiami Trail will be lower than the Natural System Model shows would be natural conditions (the goal for restoration), while water levels north of Tamiami trail would be higher than the NSM shows would be natural conditions. The charts also show that the C&SF Project regulation schedule, the water management regime normally in effect prior to interim actions proposed for the sparrow, were likewise the cause of unnaturally low water south of Tamiami Trail and unnaturally high water north of the Trail -- but that the current sparrow actions are worse than the regulation schedule, that the sparrow actions aggravate the unnatural conditions. That is, these actions, proposed and adopted subsequent to the establishment of restoration goals, move away from restoration rather than toward restoration.

This regression away from restoration highlights the common myths of Everglades restoration: (1) The Myth of a Restoration as the Priority (the false belief that everyone seeks restoration as a common priority); (2) The Myth of Progress (the assumption that at least we're making progress toward restoration, that what we're doing is helping); (3) The Myth of Money (the common claim that the main impediment to restoration is money); (4) The Myth of the General Federal Interest (the assumption that the federal government represents a general interest in overall restoration, rather than a narrow special interest; also the Myth of the Park, the federal working premise that "Everglades" means just "Everglades National Park", not the larger Florida Everglades to the north); and (5) The Myth of a Shared Vision (the assumption that everyone seeks a return to natural conditions, rather than new conditions favorable to their special interest). Until these myths become reality, Everglades restoration will not and cannot be achieved.