My main point is that Everglades restoration is in serious trouble due to misplaced priorities, subordination of fundamental democratic values, federal intransigence and bureaucratic arrogance and incompetence.
Let me emphasize at the outset that the issue before this committee and the Congress as a whole is not whether Everglades restoration is a proper goal or whether restoration is worth the effort. Those who have struggled for years to achieve the primacy of Everglades restoration as a goal, including Senator Graham on your panel (and, if I may be so bold, I would add myself and others here at the Everglades Coalition to that group), have achieved at least the nominal commitment, or (perhaps more correctly described) the "politically correct" commitment, to that stated goal.
But the harder questions relate generally to "implementation." These questions include:
(1) Restoration Goal: What does "restoration" mean? Are agencies really committed to Everglades restoration as the number one priority?
(2) Natural Conditions -- As odd as it may sound: Do agencies really want natural conditions? And, what do "natural" conditions mean?
(3) "Everglades" Scope -- Perhaps odder sounding still: Which Everglades do we restore? Whose Everglades do we save?
(4) Execution -- How do we achieve it? Does the Restudy Plan achieve it? Does the Restudy process achieve it?
(5) Fundamental Values -- Are we really prepared to sacrifice fundamental property rights and the rule of law in favor of unbridled agency discretion?
Many current problems stem from the deep-seated (though hidden) disagreements over the answers to these questions, illustrating many misconceptions about Everglades restoration, These problems include:
A. System Problem (Lack of a System-wide, Everglades-wide Commitment: Parochial Approach) -- Many agencies (particularly DOI agencies) seek only to protect their piece of the Everglades ecosystem (whether it be geographic, such as the Everglades National Park, or subject-matter, such as a single species), deliberately sacrificing other parts of the Everglades. These agencies readily discriminate against state-owned and tribal-owned Everglades, despite the Congressional and Florida legislative mandate that these areas be preserved in their "natural state" and despite the federal Trust responsibility owed to the Tribe.
The federal government is sacrificing the state and tribal Everglades in favor of the smaller federal Everglades (ENP and LNWR). The Water Conservation Areas (especially WCA 3-A) are dying due to federal actions.
Examples include: (i) flooding WCA 3-A for sparrow (resulting in destruction of WCA 3-A and damage to Florida Bay through uneven freshwater pulses); (ii) blocking Modified Water Deliveries with the effect of destroying WCA 3-A; and (iii) Chief's Letter rejection of Restudy water volumes, favoring ENP with adverse effect on WCA 3-A and Florida Bay; and (iv) blocking S-332D implementation in C-111 Project.
Recommendation -- The committee should establish the guideline that no part of the Everglades Protection Area (including Everglades National Park) should be treated more favorably than any other part with respect to hydrology (water volume and timing).
B. Process Problems (Lack of Commitment to Decision-making Process; Lack of "Partnership"; Low Inter-agency Cooperation; pro Forma Use of Task Force) -- Inter-agency cooperation (particularly by Department of the Interior agencies) remains low and many agencies refuse to commit to the overall Restudy process. In addition, many agencies refuse to implement programs which, have been finalized through the NEPA (National Environmental Policy Act) and EIS (environmental impact statement) processes. Furthermore, the South Florida Ecosystem Restoration Task Force seems to serve the main purpose of giving the appearance of oversight or coordination, while avoiding serious matters or defects in the restoration process.
The present federal approach is little more than lip-service to so-called "partnership". Deals are made in Washington, informing the public, the Tribes, and the State afterwards.
Examples include: (i) Chief's Letter rejection of Restudy process (closed door meetings after Restudy complete); (ii) improper use of Endangered Species Act to override regular state role in water management (Corps actions on sparrow); (iii) exclusion of all-but-favored private groups (exclusion of State and tribes) from sparrow meetings; (iv) disregard of NEPA public process on sparrow, Modified Water Deliveries, and elsewhere (iv) DOI lobbying anti-State and anti-Tribe agenda on WRDA and Appropriations Bills; and (v) South Florida Ecosystem Restoration Task Force unresponsiveness to members' questions.
Recommendation -- The Committee should ensure as follows:
(a) The federal government and its agencies should recognize the State's right of control over its lands and waters and right to equal involvement in the Everglades restoration policy-making process.
(b) Congress and all agencies should disregard the Chief's Letter to the Restudy as exceeding the scope of the Chief's authority, procedurally infirm, and unacceptable.
C. Execution Problems (Inability or Failure to Execute Specific Projects) -- Frankly, the track record to date in implementing or executing specific Congressionally-directed and approved projects, from the mid-1980s to date, is abysmal ("shocking" is probably a better word). Stalled "Critical Projects" include Modified Water Deliveries and the C-111 Project, both held up for a decade. These projects are assumed by the Restudy and by Congress be completed, a starting point for the restudy as the next step. The "immobilisma", agency incompetence, and outright refusal of agencies to execute any plan which the agency doesn't like even if it has been approved through the appropriate process, raises serious doubts about the wisdom of entrusting these agencies with the authority and funds involved in restoration.
Neither federal nor state government agencies are held accountable for gross errors and intentional deviations from law. In essence, the rule of law has ceased to be a relevant concept in Everglades restoration.
Examples include: (i) failure to conduct required annual reviews of Test Iteration 7 of Experimental Water Deliveries Program; (ii) permit/test 7 violation at G-211 structure in West Dade prior to Hurricane Irene; (iii) excessive groundwater levels in West Dade prior to Hurricane Irene; (iv) failure to follow public meetings law by SFWMD (local option to Modified Water Delivery); (v) Corps failure to follow Restudy procedures; (vi) failure to follow Regulation Schedule for WCA 3-A; (vii) failure to follow NEPA for WCA 3-A; (viii) failure to implement Modified Water Deliveries Project; and (ix) failure to implement C-111 Project.
Recommendation -- The committee should ensure that both the Florida Legislature and the United States Congress hold their agencies and employees responsible for errors and accountable for delays in implementing policy and for deviations from and violations of law.
D. Problems with Fundamental Values (Disregard of Fundamental Rights and Values of Liberty: Basic Property Rights and the Rule of Law) -- Everglades restoration programs, at least their implementation by the federal government, is showing an alarming disregard for fundamental values (property rights and the rule of law). Everglades restoration must not be achieved at the expense of fundamental concepts of liberty, including property rights. The right to private property is so fundamental to ordered liberty and freedom that its sacrifice is simply not justified (and its sacrifice is also not necessary for Everglades restoration). A closely related concept is the legitimacy of government provided flood protection. When flood protection and private property rights are demeaned, the core rights of the average American are threatened. Such misalignment of values will not prevail but the ultimate rejection of this misalignment by the public will destroy the viability of restoration.
Examples include: (i) The Corps actions for the sparrow (increasing flooding of lands in South Dade, West Kendall, 8.5 Square Mile Area, and WCA 3-A); (ii) increasing water levels in Dade under Test Iteration 7 of Experimental Water Deliveries without implementing concomitant flood protection; (iii) failure to implement Modified Water Deliveries Project protection for property; and (iv) failure to implement C-111 Project.
Recommendation -- The committee should reaffirm as follows:
(a) Private property and flood protection are legitimate social values and neither property rights nor flood protection should be diminished in any respect in the course of Everglades restoration.
(b) The triple goals of environmental protection, flood protection, and water supply must each be met without undue sacrifice. Plans which seek Everglades restoration at the expense of flood protection or urban and agricultural water supply are unacceptable. Plans which seek to transform Everglades restoration into a tool for "no growth", "growth management", or urban planning are unacceptable, because these matters raise different issues and involve different social values.
From a review of these problems, several major misconceptions about Everglades restoration are apparent, including:
(i) The "Everglades" is "Everglades National Park" -- The misconception that the term "Everglades" means and is the same as "Everglades National Park" leads to sacrificing the central Everglades, which are the jewels of the famous "River of Grass". The Florida and Miccosukee-owned Everglades north of Tamiami Trail are just as important and federal and state policy call for the entire Everglades to be saved.
(ii) Everglades Restoration is the Number One Federal Priority in the Everglades -- This is clearly not the case in fact, although often stated in words. This unexamined misconception allows the federal government to place the Everglades second or even lower in priority while putting other goals first. The latest example is the flooding and destruction of the central Everglades by maintaining unnaturally high water levels in WCA 3-A and "unnaturally" low water levels in ENP, by closing structures along an unnatural barrier (Tamiami Trail), for the purpose of protecting a 10% subpopulation of a subspecies of bird which moved recently into the area (outside of its critical habitat) when water was unnaturally low. The stated policy is to maintain the Everglades unnaturally dry in parts and unnaturally wet in parts for the goal of protecting the bird; clearly, preserving the natural Everglades is not a #1 priority.
(iii) At Least We're Making Progress/What We're Doing is Helping -- While we're making some progress, especially in water quality issues in the Everglades Agricultural Area (EAA), elsewhere we're deteriorating badly. The Florida Fish and Wildlife Conservation Commission said less than a month ago that "WCA 3-A has degraded more in the last 5 years than in the previous 40 years together". This on-going degradation of Florida and Tribal lands is a direct result of parochial federal water policies, which the federal government shows no signs of changing.
(iv) Everglades restoration is a Federal/State/Tribal Partnership -- The partnership is in name only, with federal agencies constantly end-running the established process whenever they don't get their way. The history of federal relations with the Miccosukee Tribe, the federal sacrifice of tribal lands and breaking of environmental commitments, is just another saga on the trail of Tears on which the federal government has sent its Native Americans.
(v) The Problem in Everglades Restorable is Funding -- The idea that the Everglades "problem" is a new version of the old approach of throwing federal dollars at whatever problem is perceived to exist. But is also has the effect of ignoring real issues in restoration. A related misconception is that additional Finding can't hurt. But more than just wasting money, could actually result in damaging the Everglades more than if the money wasn't available.
Many of these issues were discussed more thoroughly in my report accompanying the 1999 Report of the South. Florida Ecosystem restoration Task Force, on which I am a Member. It is interesting that the Task Force staff regularly distributes their glossy-print report without distributing the minority report which I filed as a Task Force Member. I have attached my April 1999 report. entitled Facing Up to Problems in Everglades Restoration (An Additional View): Supplement to "Maintaining the Momentum, 1999 Report of the South Florida Ecosystem Restoration Task Force" (Exhibit A) for the committee's use. I have also attached my April 27, 1999 testimony to the House of Representatives, entitled South Florida modified Water Delivery: A Case of Agency Obstructionism (Exhibit B), my September 23, 1999 statement, entitled Statement of Dexter Lehtinen Regarding Backwood Deals on the Everglades (Exhibit C), and my November 10, 1999 testimony, entitled Putting People Last: Excessive Groundwater Levels in West Dade (Exhibit D).
In addition to the recommendations identified with particular issue above, I recommend the following regarding general Everglades restoration and resource management:
I. Create a Cabinet Agency For Indian Affairs -- The discrimination against tribal lands and their destruction to serve Department of the Interior interests shows how Interior sacrifices Indian interests to serve other agency goals.
II. Reduce Role of the Depart of the Interior -- The role of Interior in Everglades restoration should be reduced to that of any landowner. The most destructive special interest in Everglades policy today is the U.S. Department of the Interior.
III. Shift Chair of South Florida Task Force to Corps. The Task Force should be chaired by the Corps of Engineers, which is otherwise responsible for the overall Central and Southern Florida Project and for Water Resources Development Acts in general. The Task Force is now used to further parochial Interior (not general) interests.
IV. Fund Everglades Restoration Through Corps of the State, Rather Than Interior. Interior improperly uses its role in funding to achieve collateral, parochial goals of the agency. Channeling Farm Bill (land acquisition) and Modified Water Deliveries money through Interior, for example, was a mistake.
In conclusion, the current chaos, agency parochialism, and agency arrogance are threatening the viability of Everglades restoration, as is the subordination of fundamental property values and the rule of law. The public officials who ignore this reality in a "politically correct" assertion, but "everything is going well in the Everglades" are in effect the enemies of the Everglades. On the other hand, the public officials who recognize the reality, cut through this chaos, and suffer initial criticism from those who either don't want to admit problems or don't avant their parochialism to be unmasked, will be the heroes of Everglades restoration to whom future generations of Americans (Native Americans and non-Native Americans) will be eternally grateful.