TESTIMONY OF SHANNON ESTENOZ
NATIONAL
CO-CHAIR, THE EVERGLADES COALITION
DIRECTOR,
WORLD WILDLIFE FUND, EVERGLADES PROGRAM
BEFORE THE
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
UNITED STATES
SENATE
On behalf of the 41 environmental, civic, and
recreational organizations that comprise the Everglades Coalition, which
collectively represent nearly 6 million members and supporters, and on behalf
of the Everglades Foundation and the Everglades Trust I want to thank the
Committee for the opportunity to submit testimony regarding the status and
progress of the Comprehensive Everglades Restoration Plan (CERP). I want to thank Committee Chairman Jeffords
for his continued support of this important national mission. The Committee has played a critical role in
moving Everglades restoration forward, and was specifically the legislative
“cradle” in 2000 for the CERP authorizing legislation. I also want to express gratitude for the
leadership and support of Senators Bob Graham and Bob Smith, and other members
of the Committee who have taken a keen interest in this unique and wonderful
ecosystem and have dedicated so much time and effort to its restoration.
The Comprehensive Everglades Restoration Plan (CERP)
is a massive and complex plan to change the landscape of south Florida. It is a menu of modifications, additions
to and subtractions from the Central and Southern Florida Flood Control Project
(C&SF Project), the massive drainage system originally authorized in 1947
by the 88th Congress. CERP
exists because the C&SF Project performed its water supply and flood
protection purposes beyond expectations but had unintended and devastating
consequences for the Everglades ecosystem.
The CERP comes at the 11th hour for the Everglades, and has
the potential to rescue this ecosystem from water management practices that
have devastated its ecology.
We thank Congress for providing the opportunity to
undertake this unique mission, which will set important precedents for
ecosystem restoration the world over.
The task at hand is to lay groundwork that ensures that the mission will
be a success. The Coalition’s views on
how to do this are the focus of our testimony today. First, we turn to two themes about which there has been much
discussion over the past two years, and likely today as well.
Confronting Various Types of
Uncertainty
The Everglades series published in the Washington
Post this summer focused attention on various types of uncertainty associated
with CERP. The Coalition firmly
believes that most of the issues raised in that series can be confronted and
overcome successfully using the Plan itself and the statutory direction and
tools provided by Congress. When
thinking about the uncertainties associated with CERP, it is helpful to
distinguish between those that are scientific or technical in nature, and those
that are political.
Although there is still much to learn about the
complex ecology of the Everglades, the technical uncertainties associated with
CERP are due less to our lack of ecological understanding, and more to the
problem of restoring what remains of the ecosystem within the confines of what
has been impacted by development and agriculture.
The 1999 Plan employs technologies like Aquifer
Storage and Recovery (ASR) and deep reservoir storage that present us with
areas of technical uncertainty including expected level of performance, water
quality issues and issues of aquifer protection. But as we have seen with the recently completed Indian River Lagoon
(IRL) Feasibility Study, when specific projects are formulated we may find
alternative approaches that present reduced implementation risk and are
potentially more ecologically beneficial.
The IRL plan employs large-scale wetland restoration, (relying on the
natural system to store water) and
has garnered broad and enthusiastic stakeholder support. The Coalition is confident that if given
clear program goals, and implementation flexibility, the Corps will find many
more opportunities to improve upon the approaches laid out in the 1999
Plan.
Another key aspect of technical uncertainty that can
and must be confronted as the plan moves forward is the extent to which the
Plan delivers restoration benefits to the central and southern Everglades early
in the program. Plan formulators
understood that the 1999 plan would have to be improved if we are to expect
significant restoration benefits in this part of the system during the first
half of the implementation period.
Fortunately, the Corps has itself done analysis that shows that
significant restoration benefits can
be provided within this timeframe and budget.
This gives the Coalition confidence in the overall potential for success
of the project, but it also requires that good interim goals be established to
guide the development of the project, and that excessive legal commitments to
the secondary goals of CERP not be allowed to constrain the program.
In addition to technical uncertainties, there is
political uncertainty associated with CERP implementation. Not only does the Plan face the unavoidable
flux of multiple election cycles and of shifting national economic conditions,
but it also faces the politics of growth, development, and agriculture in Florida. The CERP cannot be implemented in a political
and economic vacuum, nor can it be implemented fast enough to escape the
“real-time” pressures of population growth.
The
demands on the Everglades grow every day while the needs of the Everglades
remain unmet. While the Water Resources
Development Act of 2000 (WRDA 2000) respects the jurisdictional authority of
the state of Florida over particular aspects of Everglades restoration and
management, the Act recognizes that the federal investment in restoration must
be protected. The best way to protect
that investment from political uncertainty is to establish an appropriate
regulatory framework for CERP implementation that seeks to ensure that
restoration benefits are delivered to the Everglades. Political uncertainty obviously cannot be eliminated, but we can
lay a foundation for CERP that makes the implementation process less vulnerable
than it otherwise would be.
WRDA 2000 reflects the recognition that CERP faces
many challenges in the coming decades.
Congress understood that Everglades restoration is a new type of mission
for this nation, one that has some inherent and unavoidable uncertainties, but
that those uncertainties need not
prevent us from moving forward to save the Everglades. Restoring the Everglades with CERP doesn’t
require miracles, it requires leadership and clarity of purpose. Fortunately this Committee provided much
leadership and clarity when it crafted the Restoring the Everglades, An
American Legacy Act (REAL). The REAL
gave the implementing agencies virtually all the tools necessary to overcome
uncertainty and restore the Everglades.
It is now incumbent upon those agencies to implement those tools.
What Constitutes a Full and
Fair Partnership Between the State and Federal Government?
The Coalition appreciates the importance of the
state-federal partnership in CERP implementation, and holds that to be “full
and fair,” the nature of the partnership should reflect the realities facing
the Everglades, and be shaped in a way that has the best chance of achieving
the goals and purposes of CERP. The
debate about the state-federal partnership thus far has been based, in our
view, largely on the State of Florida’s notions of what constitutes “full and
fair”. The Coalition holds that the
influence of this perspective in the development of the draft programmatic
regulations, for example, has resulted in a draft that gives the state of
Florida a disproportionate and utterly inappropriate role in various aspects of
CERP that we believe will jeopardize the ability of CERP to achieve its
restoration goals.
In crafting and contemplating what constitutes a
full and fair state-federal partnership, it is important that the federal
government not lose sight of the fact that that there are matters of public
policy, which will have a decisive impact on the success of CERP and which already lie exclusively within
the purview of state and local government.
Reservations of water under state law is the most obvious example. Land use decision-making that generates
increased demands for water supply and flood protection is another extremely
significant example. Indeed, the two
most important factors in the restoration and management of the Everglades are
the amount of land and water available to do so, and the state of Florida
argues that it has sole sovereign authority over both of those factors.
And when we speak of fairness to the federal
taxpayer, which is of concern to this Committee, we must consider the pressures
and obligations under which state agencies must implement these and other
relevant laws, and candidly consider the track record to date. That track record is reflective of the
relatively strong protections that water supply and flood control interests
enjoy under state law, and the lack of corresponding protections for natural
systems like the Everglades. While the
state has some discretion to consider restoration needs in its planning and
permitting decisions, restoration has standing only as one of several competing
factors, and does not enjoy a position of priority under state law. Indeed in every recent example, the state's
regulatory action has favored the issuance of the permit or the planning
approval for private development over the preservation of restoration options. Just four months ago, in fact, the political
appointees who comprise the South Florida Water Management District Governing
Board chose not to exercise their authority to protect the integrity of CERP,
and granted a permit to one of the region’s largest developers for a 500-acre
development proposed to be constructed in
the footprint of an important CERP project.
The most apt, and troubling, examples of how
competing state missions can influence restoration efforts can be found in two
important federally authorized restoration projects that predate WRDA
2000. The C-111 Project, along with a
component of the Modified Water Deliveries Project, were recently modified at
the behest of the South Florida Water Management District, which had in turn
been pressured by local county commissioners coping with urban sprawl and
agribusiness on the border of Everglades, to provide significant and previously
unplanned-for drainage benefits. It is
now uncertain when, and even whether, these components will provide their
authorized restoration benefits. The
Coalition points to the precedents, not in the interest of assigning blame or
questioning the commitment of individuals to the Everglades, but simply to draw
attention to what is critical this Committee recognize: that the state and its agencies – as a
matter of both law and politics -- will always be subject to intense pressures
from local constituencies that may conflict with the federal interest.
These realities exist and threaten to undermine CERP
even as the state argues for an increased
leadership role in the federal legal framework of CERP implementation, a role
that is not contemplated by WRDA 2000.
This Committee should be fully aware that the state of Florida is not in
a position to protect the federal investment in CERP. In the Coalition’s opinion, there is far more work to be done
at this point by the federal
government to create a role for itself commensurate with the financial
investment it is making in CERP implementation, not visa-versa. And as we explain below, WRDA 2000 of course
provides precisely the direction and authority to federal agencies to craft
that role.
ON THE IMPLEMENTATION OF
CERP
The body of the Coalition’s testimony is divided
into two general parts, both of which address issues we believe are integral to
a CERP implementation process that will ultimately restore the Everglades. First, the Coalition believes that the
assurance provisions of WRDA 2000 must be implemented, as we believe Congress
intended, and consistent in every way with the spirit of the law. One of the most fundamental purposes of CERP
and its authorizing legislation is to level the playing field for the
Everglades, and WRDA 2000 compelled changes to the regulatory regime to provide
for this. The CERP cannot be implemented successfully under current modes of
agency action and under the current regulatory umbrella, unless the assurances
provisions are fully implemented.
Furthermore, unless the regulatory playing field is leveled, the
Everglades cannot possibly compete with water supply and flood control interests
for water resources under conditions of scarcity and competition in the near
future and throughout the implementation period. The Everglades must be provided adequate regulatory protection
and status to vie with the comparatively strong legal protections already
afforded water users and recipients of flood protection.
The Coalition is particularly concerned about the
programmatic regulations, the cornerstone of the WRDA 2000 assurances
provisions, which the U.S. Army Corps of Engineers will promulgate by the end
of the year. Fundamental changes must
be made to the draft regulations if they are to establish a new regulatory
structure sufficient to protect the Everglades from the politics and legal
realities of growth and the uncertainties of science and engineering. The Coalition seeks this Committee’s
assistance in encouraging significant revision of the draft regulations.
Second, it is critically important that the
individual CERP projects be implemented expeditiously due to encroaching urban
development, escalating costs of delay, and impending estuarine collapse. In response to growth pressures in south
Florida, land values escalate continuously, and like any prospective land
buyer, government must move quickly to maximize cost savings on land
acquisition. Land acquisition and individual restoration projects must move
forward expeditiously if we are to forestall continued degradation of the
Everglades and achieve expected restoration benefits.
PART 1
A. ASSURANCES THAT RESTORATION BENEFITS WILL BE ACHIEVED BY THE PLAN
In its deliberations in 2000, Congress recognized quite well that the politics and legal realities of water, development, agriculture and growth in Florida could easily sidetrack CERP. The concern was that, as had occurred in the past, the water supply and flood protection benefits woven into the project might be maximized at the cost of restoration benefits, thereby jeopardizing the federal investment in Everglades restoration. Although the CERP was designed to meet all predicted needs, ecosystem and built system alike, conflicts are certain, given the realities of funding, engineering and scientific uncertainties, and political expediencies.
Moreover, Congress
recognized that CERP as presented to it in 1999 was a conceptual “framework”
with many uncertainties and opportunities for improvement. Indeed, the Committee emphasized the need
for “adaptive management” partly in response to significant questions raised
about aspects of the original plan by the Department of Interior, independent
scientists, and the environmental community.
Accordingly, WRDA 2000 enacted a system of “assurances” to ensure that the goals and purposes of the Plan, in particular those related to restoration, are achieved. The programmatic regulations are at the center of this system of assurances. WRDA 2000 requires that
“the Secretary
shall, after notice and opportunity for public comment, with the concurrence of
the Governor and the Secretary of the Interior, and in consultation with the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the
Administrator of the Environmental Protection Agency, the Secretary of
Commerce, and other Federal, State, and local agencies, promulgate programmatic
regulations to ensure that the goals and purposes of the Plan are achieved”
601(h)(3)(A)
Like most regulations, the programmatic regulations
are to bridge the gap between the generalities of statutory direction and the
specificity of agency action, ensuring that Congressional intent is reflected
in the details of CERP implementation.
But these regulations are more than simply implementing regulations –
they have a singular role to assure the federal interest in this project is
satisfied, in the face of inherent conflicting priorities, engineering and
scientific uncertainties, and the need for restoration performance
improvement. In short, the letter and
spirit of the assurances required by WRDA 2000 must be reflected in the
programmatic regulations. See
601(h)(3)(C)(i) (The programmatic
regulations are to “establish a process to …(III) ensure the protection of the
natural system consistent with the goals and purposes of the Plan, including
the establishment of interim goals ...)
The Coalition has identified a few general principles
that we believe must be embodied in the implementation of the WRDA 2000
assurances provisions, including programmatic regulations. Unfortunately, as we discuss below, the
current draft programmatic regulations, published in the Federal Register on August
2, 2002, fail in this essential task.
WRDA 2000 states “The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida Ecosystem while providing for other water-related needs of the region, including water supply and flood protection. The Plan shall be implemented to ensure the protection of water quality in, the reduction of the loss of fresh water from, the improvement of the environment of the South Florida Ecosystem and to achieve and maintain the benefits to the natural system and human environment described in the Plan, and required pursuant to this section, for as long as the project is authorized.” Section 601(h)(1)
Thus, the CERP must accomplish three broad goals.
First, it must alter the
hydrology in the remaining Everglades so that the system can recover from the
damage it has sustained over the past five decades. In doing so it must establish the physical, regulatory and
operational conditions necessary to protect a restored Everglades from future
degradation. Second, it must continue
to serve its originally authorized purposes for the population that existed in
the region on December 11, 2000 (a population more than triple that for which
the project was originally designed).
Third, it must provide certain water supply and flood control benefits
without compromising the achievement of interim and final restoration
goals.
If the Plan is reasonably
successful, its components will capture and store enough water to restore the
Everglades and provide for some portion (perhaps most or all) of the projected
population growth of the next 50 years.
The Everglades Coalition supports this win-win scenario. The assurances provisions of WRDA 2000,
however, were not created to address such a “best case scenario.” They were
prudently crafted to cope with “worse and worst case scenarios.” In the event that CERP components do not
perform as well as expected, the Coalition strongly objects to a corresponding lose-lose approach to parceling out benefits. In other words, the argument that under such
scenarios there should be a “balancing” of available benefits between the
Everglades and water for growth is completely unacceptable. The Coalition cannot support a CERP
implementation process that employs such an approach. While there are numerous opportunities for addressing the needs
of south Florida’s growing population, including the CERP projects, the CERP is
the Everglades’ last hope.
Moreover, even if conflicts
between expected benefits were never
to appear, the political pressure to satisfy additional water supply and flood protection needs over the natural
system will be applied continuously.
Such pressures will be present in a myriad of agency decisions, down to
some of the smallest design decisions.
It is accordingly critical that a priority for ecosystem restoration be
embedded in the programmatic regulations to help withstand such pressures and
serve as protection – the only protection – for the federal interest in
Everglades restoration.
Fundamentally, CERP is a
remedial program that makes no demand on existing human users to cease and
desist the activities that have harmed and continue to harm the
Everglades. The Plan in fact very
specifically sets out to rescue the Everglades while accommodating those
activities, and WRDA 2000 actually holds those activities harmless from CERP
implementation. However, water supply
and flood protection benefits for additional
growth must not be achieved at the expense of achieving interim and final
remedial goals in the Everglades.
The Draft Programmatic Regulations
The draft regulations do not establish – in any matter of form or substance – restoration of the Everglades as the primary and overarching objective of the Plan. On the contrary, throughout the draft regulations equal priority is consistently placed on restoration, water supply and flood protection goals.
Particularly
significant is how the draft regulations treat interim restoration goals. Even though WRDA 2000 only mentions such
goals for restoration performance, the draft regulations contain a new set of
goals, called water supply “targets.”
Most alarmingly, the draft regulations do not prioritize achievement of
interim restoration goals over interim water supply “targets” in the event that
these two come into conflict with each other.
While the Coalition does not object to such targets, it must be made
clear that they cannot compromise efforts to achieve restoration performance goals.
Congress recognized the importance of interim
restoration goals and recognized that the programmatic regulations were the
appropriate vehicle for “establishing” those goals.[1] We believe the congressional intent is clear
on these points and for good reason.
Absent interim goals and a close nexus between them and the planning and
implementation of individual projects, CERP is far more subject to localized
political and bureaucratic pressures to serve water supply and flood protection
goals rather than restoration goals. It
is unacceptable to the Coalition – and we hope to Congress – to not know what
we are getting, at least in broad strokes.
The stakes are too high, and the conflicts too compelling.
It is also critical that the interim goals be the
cornerstone of the planning and implementation process. Each separate project must show it makes the
necessary contribution to achievement of relevant interim goals.
The
Draft Regulations
The
draft regulations fail to incorporate interim restoration goals. Instead, they call only for a future process
to develop interim restoration goals that will then be incorporated into
memoranda of agreement, which have far less legal significance than
regulations. We believe the legislation
is clear that interim goals are to be included in the programmatic regulations
themselves. They are a part of the
process for ensuring restoration benefits are met. Federal regulations are a well-tested vehicle for regulatory
tools of the import of interim goals, and their flexible use in this case per
the principles of adaptive management is enhanced by the WRDA 2000 requirement
that the programmatic regulations be reviewed and revised every five years or
more frequently if necessary.
General Principle 3: The April 1999 CERP is a starting point to be
continually improved upon in a formalized process
The Everglades Coalition views CERP as a conceptual
document with recognized uncertainties and opportunities for improvement. For example, the modeling provided in the
April 1999 plan documents showed strong and early performance on the water
supply front, but delayed restoration benefits, particularly to the southern
Everglades. Moreover, it did not
adequately restore connectivity and flow through the system, as was
characteristic of the natural Everglades.
There was also significant reliance upon uncertain and even destructive
engineering solutions. The components
that comprise the “Lakebelt” are prime examples – the Corps recently permitted
an initial phase of rockmining
activities in over 20,000 acres of critical Everglades wetlands, a project that
has been partially rationalized on the grounds that some of the mining pits
might be used several decades down the line, if they could be made to store water, to provide water flows to
Everglades National Park.
The Corps demonstrated significant ability to
improve the performance of the Plan even before the original plan was delivered
to Congress in July of 1999. The Corps
conducted additional modeling in May and June of 1999 that demonstrated that
the performance of CERP could be improved quite readily. In 2001, the Corps developed a much-improved
plan for restoring the Indian River Lagoon thus proving again that adaptive
management can work. The Coalition
believes that improving the model runs and the implementation schedule of
individual projects will achieve the goals and purposes of the CERP more
quickly and with better ecological results. Adaptive management is the process
by which these changes are mandated, and the changes should be incorporated
into the regulations as the Corps approves them, with concurrence from the
Department of Interior and the State.
These outstanding technical concerns
notwithstanding, the Corps made one significant promise about the performance
of CERP that was accepted enthusiastically by all. As the Committee discussed in its report: “According to the Army Corps, 80 percent of
the water generated by the Plan is needed for the natural system in order to
attain restoration goals, and 20 percent of the water generated for use in the
human environment…. Subject to future authorizations by Congress, the committee
fully expects that the water necessary for restoration, currently estimated at
80 percent of the water generated by the Plan, will be reserved or allocated
for the benefit of the natural system.”
(Senate 2d Session 106 363, Report to accompany S. 2797 Section 1(b))
The
Draft Programmatic Regulations
Despite the history discussed above, and all the
progress that has been made over the last several years, the draft regulations
generally tie long-term performance of CERP to the April 1999 “yellow book”
performance. The draft regulations do
set forth processes for improved performance.
But not only are there no mandates or timelines to make such
improvements, but the regulations prioritize changes based upon monitoring
results – which will not emerge for years.
Perhaps
the most immediate and significant specific problem is that the initial set of
interim goals (and targets for water supply) are explicitly tied to the April
1999 “modeling output.” This
specifically commits the Corps (unless it changes the programmatic regulations
in the future) to develop interim goals that provide inadequate benefits to the
central and southern Everglades -- even $4 billion into the project. We are very concerned that the
regulations ignore the improvements that the Corps itself demonstrated were
feasible in May and June of 1999, and believe that it is critical that at least
this level of improvement be incorporated into the interim an final restoration
goals.
As for its promise that CERP will provide 80 percent
of the water it produces to the Everglades, the Corps retracts this commitment
in the draft programmatic regulations.
It explains simply that these estimates were “initial” and somehow no
longer applicable, and that water will be allocated on a project-specific basis
in greater or lesser amounts than the 80/20 ratio. In light of the public reliance upon this figure in 2000, neither
explanation is sufficient to support rejection of the 80/20 ratio as a generalized planning goal. The Corps has not provided any technical
explanation to support any change in the promised performance of CERP. Moreover, while of course individual
projects may not provide water supply in exactly such proportions (indeed, some
projects are not intended to produce any water storage), there is no reason to
reject the 80/20 ratio as a planning guide for aggregates of projects, working
in conjunction with operations of the entire C&SF project.
The Coalition believes this Committee should require
adherence to the 80/20 performance goal as a planning guide for CERP implementation.
The
Congress recognized that the overarching goal of the CERP, namely Everglades
restoration, is unlike that of traditional Corps projects. Even as its mission is reshaped and
experience grows, the Corps is not a recognized expert in the ecological and
biological scientific underpinnings of this historic enterprise. Moreover, the historic relationships between
the Corps and client entities for the secondary purposes of CERP, namely flood
protection and water supply, remain strong and, an institutional interest in
providing such deliverables frequently predominates.
Accordingly,
in WRDA 2000, Congress established a unique relationship between the
implementing federal agency, the Corps, and the federal steward of and
scientific expert in the lands intended to receive the benefits of CERP
implementation, the Department of Interior.
While the Corps is clearly the lead implementing agency, maintaining
sole federal jurisdiction over the implementation of individual projects,
Congress established a special leadership and accountability role for the
Department of Interior. It specifically
gave the Department of Interior concurring authority over the programmatic
regulations, in order to provide Interior with a leadership role in
programmatic decision-making. In other
words, where the traditional relationship between these two agencies regarding
water resource projects typically relegates Interior to a “participating” or
“commenting” role, WRDA 2000 establishes a new and important leadership role
for Interior, equal to that of the Corps (and the State) on key programmatic
implementation issues. For its part, the
South Florida Water Management District (SFWMD) is to partner with the Corps in
the development of project-specific documents and is provided a consultation
role in several other places, such as the reports to Congress on the progress
of CERP.
The Coalition strongly believes that the Department
of Interior must be granted this concurring authority over all aspects of CERP
implementation described in Section 601 (h)(3). To the extent that new instruments such as guidance memoranda and
pre-CERP baselines are created, introduced or referenced by the regulations as
a means of meeting the requirements of 601 (h)(3), these must be subject to the
concurrence structure created by WRDA 2000.
The
Draft Programmatic Regulations
The draft regulations do not implement the
concurrence role created for the Department of Interior by WRDA 2000. Rather, for a handful of specific
programmatic actions and processes, such as guidance memoranda, Interior is
given a role that is referred to as “concurrency.” But the draft regulations state that the Corps (and the SFWMD) need only give “good
faith” consideration to Interior’s statement of “concurrency” or
“non-concurrency.” This amounts to
simply consultation by a different name, which the agency already has pursuant
to the Endangered Species Act, Fish and Wildlife Coordination Act and other
laws.
For a number of critical programmatic decisions,
Interior is not even provided the afore-mentioned “good faith consideration”
authority. These decisions include the
adaptive management program, the master implementation schedule, and the system
operational manual, any one of which will be instrumental in determining
whether the Everglades is restored. In
addition, a large number of science-based programmatic decisions are handed off
to the Restoration Coordination and Verification Team (RECOVER), rather than
being included in the programmatic regulations. RECOVER, however, is controlled by the Corps and the SFWMD, not
by the tri-partite arrangement (i.e., Corps, Interior, and the State) Congress
required for programmatic decision-making.
(Section 601 (h)(3)(A)
While diminishing the authority of the Department of
Interior, the draft regulations
actually inflate the role of
the SFWMD over and above what was provided for in WRDA 2000. For example, the SFWMD is given an equal
role with the Corps in the development of guidance memoranda, even as the Corps
proposes to defer to these documents much of what Congress intended to be
contained in the programmatic regulations.
In addition, the SFWMD is given authority, with the Corps, to weigh
statements of concurrence or non-concurrence by Interior on programmatic
matters referenced in 601(h)(3). This
is not consistent with the requirements of WRDA 2000, which clearly sets the
state of Florida and the Department of Interior on equal footing on such
matters.
Generally, the draft federal regulations provide
that the Corps and SFWMD carry out all the mandated responsibilities and tasks
under the regulations together, with each having an apparent veto over the
other. When considered together with the SFWMD’s sole authority over water
allocation and land use, the draft regulations position the SFWMD as the most
powerful agency in implementation of CERP.
If the draft regulations become final, the SFWMD will essentially be
developing and implementing federal
rules intended to protect the sole federal interest in this project –
Everglades restoration.
General Principle 5: Independent scientific review must be given
high priority in the CERP implementation process.
Independent scientific review is critical to
ensuring an open, science driven decision-making process that separates the
"auditors" from the "managers" of Everglades
restoration. Congress recognized this
and accordingly in WRDA 2000 required that
“The Secretary, the Secretary of the
Interior, and the Governor, in consultation with the South Florida Ecosystem
Restoration Task Force, shall establish an independent scientific review panel
convened by a body, such as the National Academy of Sciences, to review the
Plan’s progress toward achieving the natural system restoration goals of the
Plan. 601(j)(1)
To make this independent science review process
effective and to sustain its integrity, it is critical that it operate independently
of the U.S. Army Corps of Engineers, the State, and the Department of the
Interior, have access to all pertinent information generated by the
implementation of CERP, and be adequately funded. The programmatic regulations
should specifically discuss how separate agencies and the inter-agency RECOVER
team shall work with the independent science panel, including a role for
dispute resolution on scientific matters and within the process for adaptive
management and assessment.
The
Draft Programmatic Regulations
The draft regulations do little more than reference
the statute on the question of independent scientific review, and we have seen
no significant independent effort to implement the statutory provisions on this
issue. The draft regulations certainly
do not implement the independent science body, or even set a date by which it
will be implemented. We are very
troubled by this failure to act because the independent panel's first report is
due in December 2002. Indeed, the
implementing agencies have seemed more concerned about the extent to which
independent scientific review can or should be circumscribed than with
establishing it.
General Principle 6: The definition of “restoration” must be
expressed in terms of hydrologic and ecological targets
The CERP, like many restoration projects before it,
was created as a response to the degraded and unsustainable condition of the
greater Everglades ecosystem caused by human alteration of the
environment. Restoration, therefore,
must always be defined as achieving sustainable natural areas that possess the
essential ecological characteristics of the pre-drainage Everglades over the
maximum spatial extent possible.
The underlying principle within the CERP is that
hydrological restoration of natural areas will foster biological restoration in
those areas. Therefore, the first
requirement for restoration is to return proper water quality, quantity,
timing, and distribution throughout the system. To the degree hydrological restoration is successful, biological
restoration should follow -- with various communities responding at different
points in time.
The
Draft Regulations
The draft regulations inappropriately define
restoration as the level of recovery and protection to the South Florida ecosystem
as described in CERP, with such modifications as Congress may provide for in
the future. However, the “yellow book”
provides only a framework for achieving restoration and does not clearly
describe the essential ecological characteristics of a sustainable, restored
Everglades. Instead, the Plan consists
of a series of projects whose resulting hydrological improvements are
anticipated to achieve the desired biological benefits. It is important to keep the definition of
restoration, the main goal of the CERP, based on ecological necessity and not
anticipated performance. This structure
is necessary for the adaptive management process to be successful in making
meaningful improvements to the plan.
If we are to save the Everglades, we must act while
there is still time to do so. The CERP
will be implemented over the course of 30 years, but there are activities and
projects, which can and should be implemented immediately, both to protect the
integrity of the CERP and to achieve desperately needed early restoration
benefits. In its deliberations in 2000,
the Committee expressed the desire to see greater restoration benefits earlier
in the implementation process. (Senate 2d Session 106 363, Report to accompany
S. 2797 Section 1(b)) Not only are these early benefits important to
the Everglades itself, but achieving measurable benefits in the ecosystem will serve
to raise the level of public confidence in the CERP, and toward proving that it
is indeed possible to restore this ecosystem.
Everglades restoration will repair much of the damage from
drainage and development, bringing back the wading birds that once filled the
south Florida landscape and helping hundreds of thousands of acres of wetlands
and estuarine habitat recover. Restoration projects will benefit National and
Florida Parks totaling nearly 3.5 million acres and contribute to South
Florida's ecosystem-based economy.
Three
crucial projects must be authorized at the first opportunity and implemented
expeditiously due to immediate threats from encroaching urban development,
escalating costs of delay, impending estuarine collapse and the continued
degradation of the entire Everglades system.
Thus, these projects, Indian River Lagoon, Southern Golden Gate Estates,
and Water Preserve Areas (including the Bird Drive Recharge Area and the
Southern Compartment of the Hillsboro Impoundment), are very vulnerable to
implementation delays. At the same time, they have the most potential to
immediately enlarge the spatial extent of the remaining Everglades. These
projects must be completed by aggressive land acquisition and accelerated
engineering and construction plans. These projects require prompt Congressional
approval for Everglades restoration to move forward on schedule.
The
vital areas within these three projects contain
more than half of the total land area in the restoration plan, and will provide
impressive ecological benefits well before 2010, including:
·
270
square miles (~172,000 acres) of restored and protected wetlands and uplands,
·
restored
habitat for more than 2,200 species, at least 35 of which are threatened or
endangered (including the manatee, snail kite, wood stork, red-cockaded
woodpecker, scrub jay, crested caracara, whooping crane, bald eagle, indigo
snake, eastern loggerhead turtle, Atlantic green turtle, leatherback turtle,
Atlantic hawksbill, and Atlantic Ridley turtle),
·
potential
10-fold increase in area wading bird populations,
·
tens
of millions of dollars in associated economic and quality of life benefits
annually, and
·
improved
water quality for the Everglades, Florida Bay, 10,000 Islands, St. Lucie
Estuary, and Lake Okeechobee.
Three Projects:
1. The Indian River Lagoon Project will reverse the
deterioration of and restore a nationally significant and unique system and one
of the most diverse estuaries in North America, as well as help to restore Lake
Okeechobee. The project restores more than 145 square miles (92,000 acres) of
habitat, utilizing these areas for water storage, water quality treatment, and
green space. Restoring, cleaning up and enhancing the area’s wetlands and
waterways simultaneously increases the extent of natural storage and limits the
dumping of harmful stormwater into Lake Okeechobee, the Indian River Lagoon and
the St. Lucie Estuary. These water bodies will benefit enormously from land
acquisitions, improvements for stormwater retention and water storage, and by
changing the current project’s drainage patterns.
Specifically,
restoring wetlands and retaining flows now harming the Indian River Lagoon
will:
·
re-create
more than 90,000 acres (145 square miles and 1/5 of the watershed) of healthy
upland/wetland habitat,
·
stop
more than 65 tons of phosphorus from entering the waterways annually,
·
establish
corridors connecting habitats to the north and south of the study area,
·
store,
clean, and re-route water, which today enters the middle of the estuary at the
wrong time and in the wrong amounts (killing seagrass and oysters, creating
fish lesions), to the ends of the estuary where water can flow into the estuary
in a healthy manner,
·
remove
~ 5.5 million cubic yards of muck, covering 2,650 acres of estuary bottom to
restore sand-bottomed communities conducive to seagrass growth and healthy
oyster populations,
·
help
provide an estimated $731 million annual regional economic contribution from
tourism, fishing, and real estate,
·
help
prevent fish kills like the 1 million dead fish in C-24 in June 2002,
·
redirect
excess water to irrigation for farms,
·
keep
urban development away from wetland areas essential to the ecosystem, and
·
restore
fresh water aquifers to near pre-drainage levels.
2.
The Southern Golden Gate Estates Hydrologic Restoration Project will restore 113 square miles (72,320 acres) of Southwest Florida.
Harmful and uncontrolled urban growth is moving east from Naples toward the
Everglades. At the edge of the natural areas in the Big Cypress and Fakahatchee
Strand sits the "Southern Golden Gate Estates" subdivision platted by
long-defunct land development schemes. The roadways and canals that make up
part of this area constitute an ideal location to re-establish natural sheet
flow toward the estuaries. Efforts to restore this area’s unique ecology of
cypress, wet prairie, pine, hardwood hammock and swamp have been underway for
decades. The project is connected to the Florida Panther National Wildlife
Refuge, the Belle Meade State Conservation and Recreation Lands Project Area,
the Fakahatchee Strand State Preserve, and will restore flows to the Ten
Thousand Island Estuaries and Aquatic Preserve through sheetflow and flowways
rerouting approximately 185,000 acre-feet of water currently discharged as
point source to the Ten Thousand Islands (part of Everglades National
Park). The restoration benefits of this project are too long overdue and
critically needed.
Specifically,
creation of a restored flow-way will have the following benefits:
3. The Water Preserve Areas (WPAs) Project, (including Bird Drive
Recharge Area and the Southern Compartment of the Hillsboro Impoundment), an
integral part of the Everglades restoration plan, is located within Palm Beach,
Broward, and Miami-Dade Counties east of the Everglades and west of existing
development, creating an 18,139acre buffer area. Eight WPA project components
are currently authorized under WRDA 2000.
Two original WPA project components, the Bird Drive Recharge Area and the
Southern Compartment of the Hillsboro Impoundment, are immediately threatened
by development pressures and must be authorized in 2002. The WPAs are designed
to protect the spatial extent of wetlands, improve habitat in the Everglades
Protection Area, and enhance the Loxahatchee National Wildlife Refuge, as well
as store water, and safeguard wellfields. WPAs provide a critical source of
water storage for restoration by reducing undesirable losses from the natural
system through seepage and providing a means of capturing stormwater runoff
that was previously wasted to tide. Further, development continues to encroach
on the remaining natural areas adjacent to the Everglades. These remaining
wetlands serve a critical role in the restoration of the Everglades by
maintaining wetland spatial extent. The WPAs also provide a mechanism for
increased aquifer recharge and surface water storage capacity to enhance
regional water supplies for the lower east coast urban areas, thereby reducing
demands on an already degraded natural system.
While
land purchases to complete this 18,139-acre restoration area have already
begun, both land acquisition and the design of projects for water storage,
water quality improvement, and wetlands restoration features must be approved
expeditiously or these projects will be irreparably compromised. The WPAs are the restoration features most
threatened with immediate loss to development pressures because of their
location between the urban developed areas of south Florida and the remnant Everglades
ecosystem. For example the Strazzulla wetlands, adjacent to the Loxahatchee
National Wildlife Refuge, is over 3,300 acres in size and one of the lower east
coasts’ last remaining intact Cypress stands. It will be protected and
hydrologically enhanced.
When
completed, the WPA system has the potential to provide the following benefits:
·increase water storage by
~33,000 acre-feet and reduce discharges to the ocean by directing water now
wasted to tide into reservoirs and impoundments for restoration and potentially
for urban uses
·increase water supplies by
providing more places to store water.
·clean and re-release water
back into the Everglades, when the wetlands need the water, through water
storage reservoirs and treatment marshes,
·enhance urban water supply,
thus reducing the reliance of utilities on water from the Everglades and Lake
Okeechobee,
·allow more natural water
levels in the Everglades by controlling seepage of 64,000 acre-feet of water
from the Water Conservation Areas into developed areas
·create a barrier to the
impacts of development between urban areas and the Everglades,
·restore sheetflow in the
remnant Everglades by providing alternate conveyance canals necessary for
future projects,
·help provide for more
natural timing, distribution, and volume of water to Florida Bay, and
·protect the spatial extent
of wetlands.
Restoration in the southern end of the system –
where all the federal Everglades are -- depends on the implementation of the
Modified Water Deliveries project, which was authorized in 1989 and 1994. This project will restore flows to
Everglades National Park and, coupled with the C-111 project, authorized during
the same time period, will help restore water flows through the East Everglades
to Florida Bay. The project will
reverse the damage to Everglades National Park and Florida Bay from previous
and current water management practices.
The Modified Water Deliveries project is comprised
of a number of components, including modifications to the Tamiami Trail and a
mitigation feature for the 8.5 Square Mile Area. Because of the lack of leadership to implement an environmentally
acceptable alternative for the 8.5 Square Mile Area component, the entire
project has come to a grinding halt. A
compromise solution, Alternative 6D, had previously been developed in
partnership between the South Florida Water Management District and the Army
Corps of Engineers. This has been the
only alternative developed to date that has provided benefits to Everglades
National Park, wetlands in the area and to the landowners of the 8.5 SMA. By acquiring only a portion of the 8.5 SMA,
all of these benefits can be achieved.
The residents of the 8.5 SMA will be able to retain their sense of
community and the rural character of the area they so desire.
In WRDA 2000, southern end CERP projects, such as
decompartmentalization of the central Everglades, were tied to the completion
of the Modified Water Deliveries project.
Section 601(b)(D)(iv). “Decomp”,
as it is known, is one of the most critical southern end CERP projects,
designed to restore original Everglades sheetflow by reconnecting the River of
Grass. This project cannot be
implemented until Modified Water Deliveries is completed.
As we have already mentioned, water management in
the East Everglades is likely the most disturbing aspect of current restoration
efforts in the southern end of the system.
Using large canals and pumps adjacent to Everglades National Park in an
effort to satisfy escalating stormwater
control demands from adjacent agriculture and urban sprawl, while minimizing
the ancillary effects of such benefits on the water quality and water flows of
the eastern part of the Park and northeast Florida Bay is no doubt a daunting
task. The history of the East
Everglades, culminating most recently in the sidetracking of the C-111 Project,
is a long tale of “emergency” or “temporary” operations to help out a new need,
be it tropical fruit tree planting in South Dade or subdivision development in
west Dade, that – despite harmful impacts on the Everglades – are never
changed.
The inability to move forward and build the projects
that would provide greater opportunities to balance competing interests, such
as the Modified Water Deliveries project, discussed above, makes it nearly
impossible to even try to resolve such conflicts. So does an unwillingness to try to resolve these problems without
broadening the base of solutions. Once
these authorized projects are constructed, flexibility will be built into the
system that will provide areas to store water, thus reducing harmful water
quality impacts to Everglades National Park and Florida Bay. Canal elevations can – and must -- be
restored to levels that will not over drain the east Everglades and allow water
to be sent to Florida Bay with appropriate timing, distribution and
quality. Once CERP projects and
previously authorized projects are constructed, the needs of the Everglades,
agricultural and urban flood control can be better met, IF combined with a
willingness of these communities to plan development differently and not simply
expect federal projects – particularly federal Everglades restoration projects
– to take care of all needs. In
addition, year-to-year operations that continuously change are not supported by
any constituency with an interest in southern Miami-Dade County, including
local government, agriculture or environmental stakeholders. Only through the completion of the Modified
Water Deliveries project and the C-111 projects, as originally designed and
authorized, can we move to this permanent solution that will provide certainty
to all interests in South Dade.
The integrity of the Comprehensive Everglades
Restoration Plan (CERP) rests in very large part on the ability to acquire the
land necessary to implement project components. CERP cannot be successfully implemented without an expedited and
fully funded land acquisition strategy. The state of Florida has committed to
providing roughly $1 billion over a decade for Everglades restoration
lands. But this is not enough to keep
up with extreme development pressure in South Florida. It is critical that all
land acquisition efforts be accelerated.
The South Florida Water Management District needs about $1 billion over
the next five years for Everglades
lands. Therefore, the federal
government must step forward and assist the state of Florida in fully funding
accelerated land acquisition for Everglades Restoration. While Congress has provided $15 million to
the state of Florida for land acquisition in Fiscal Year 2002, this fell over
$60 million short of what the state was prepared to match, resulting in lost
opportunities to acquire critical real estate within the CERP footprint. Federal land acquisition assistance to the
state of Florida should be increased to at least an additional $25 million each
if we are to acquire the most critical lands expeditiously. The state of
Florida relies on this source of federal funds for opportunistic acquisitions
of land that suddenly become available.
Without the flexibility that federal assistance provides the State to
react quickly to acquire property, lands that are critical to Everglades
restoration will fall into the hands of developers lost to development which
will preclude restoration of those lands and, due to increased land values,
dramatically increase the overall cost of restoration for both state and
federal taxpayers.
Without the flexibility that federal assistance provides for
the State to react quickly to acquire property, lands that are critical to
Everglades restoration will fall into the hands of developers, which will in
turn dramatically increase the overall cost of restoration for both state and
federal taxpayers.
For example, the Water Preserve Areas (WPAs) are
some of the most significant projects of the CERP. The WPA project creates a buffer between the developed and
natural areas of Palm Beach, Broward and Miami-Dade Counties. Land in the western areas of these counties
is exponentially increasing in value and all opportunities to acquire
available, non-developed land must be utilized. There is a race against
development to purchase these lands and not lose their irreplaceable benefits.
While significant progress has been made, the pressures of price escalation and
development increase every day. This is illustrated by the following examples:
Ø
WPAs Shrinking Due to Rising Land Costs – As a result of the
escalation of land costs and funding constraints, Bird Drive Recharge Area,
Acme Basin B, and the southern compartment of Hillsboro Impoundment project
components, totaling more than 6,000 acres, have already been removed from the
WPA Feasibility Study and the current implementation schedule for the WPA
project. These examples are areas that
illustrate a trend of price escalation and competition for lands necessary for
Everglades restoration.
Ø
Allapattah
Ranch in Martin County – Just last week the final land purchase for this 22,500
ranch was completed, providing a significant amount of needed water storage and
wetland enhancement in one parcel. An opportunity existed to expedite this
purchase, and because funding was available, it was not lost to development.
On average, land values in South Florida double
every 8 years. Development pressures in
Palm Beach, Broward, Miami-Dade, and Martin Counties stand to jeopardize CERP
implementation. Project footprints are already being compromised - the Water
Preserve Areas are shrinking. Water storage and water quality treatment options
are being foreclosed. The state of
Florida needs federal assistance to fully fund accelerated land acquisition for
Everglades restoration. By providing additional funding for lands now, the
federal government could actually reduce the cost of restoration overall and
increase benefits to the Everglades at the same time.
Land
Acquisition Needs
|
CERP |
Total Acres Needed |
Total Expended to Date Cost Estimate |
Acres Already Acquired |
Acres Remaining to be Acquired |
Remaining Cost Estimate |
|
By 2007 |
180,567 |
$1,239,163,000 |
75,669.53 |
110,000* |
$ 920,000,000* |
|
By 2010 |
N/A |
N/A |
N/A |
149,000 |
$1,604,000,000** |
|
Total |
309,011272,318 |
$547,660,216 2,221,914,000 |
137,917(45%) 95,330.53 |
215,102 176,987.47 |
$1,685,984,234 787,093,000 |
Source:
CERP and SFWMD. 8/23/02
* South Florida Water Management District, CERP Progress Report to the Governing Board (April 10, 2002).
** South Florida Water Management District, CERP Real Estate Expenditures 2001-2010 - Detail (August 2001).
In addition, additional lands in the Everglades
Agricultural Area must be added to the CERP land acquisition needs. As sugar
cane and vegetable fields come out of production because of soil subsidence or
other reasons, funds must be made available to purchase those lands to be returned
to their original function as natural water storage and to prevent urban
development of the area, which is in the heart of the Everglades.
Everglades restoration
presents us with an opportunity to undo the damage that we ourselves wrought on
one of the world’s most fragile and important ecosystems, and to do so at an
unprecedented scale. To succeed in this
historic effort would stand as one of this nation’s great achievements. Like all complex endeavors, both the devil
and the promise lie in the details. The
key initial decisions concerning the implementation of CERP will establish the
balance between urban and ecosystem considerations. The care with which these decisions are made and the
comprehensiveness of the considerations undertaken in them will ultimately
determine the success or failure of the venture.
Like any other difficult but important national
mission, Everglades restoration must be approached boldly and with
resolve. The construction of highways,
dams, and harbors is rarely delayed by political uncertainty, bureaucratic
hesitancy, and continuous reevaluation of goals and objectives. The Everglades cannot afford the kind of
protracted implementation delays that we have seen on previously authorized
restoration projects such as the Modified Water Deliveries and C-111
projects. Government must move forward
with confidence and competence, addressing stakeholder concerns head-on in an
open, honest, and goal-oriented way, allowing the authorized project objectives
to guide its actions. With leadership
and resolve, the implementation of CERP could be a model for environmental
restoration across the nation, where the needs of people and the environment
are approached together. Some worry
that the project is too ambitious and its goals too amorphous to be
successful. What better way to make
that view a self-fulfilling prophecy than to fail to set clear goals and to
fail to approach CERP as the ambitious national mission it is?
Restoration of the Everglades deserves the kind of
American “Can Do!” spirit that has defined this nation since its
beginnings. As America invests in the
Everglades, it invests in its future, demonstrating to the world that we can act to save the natural systems that
sustain us, allowing human beings and ecosystems to thrive side by side for
generations to come.
[1] Senate
Report 106-363: “In developing the programmatic
regulations, the Federal and State partners should
establish interim goals – expressed in terms of restorations standards – to
provide a means by which the restoration success of the plan may be evaluated
through the implementation process. The
restoration standards should be quantitative and measurable at specific points
in the Plan implementation.”(emphasis added)