MICCOSUKEE TRIBE OF INDIANS IN THE EVERGLADES
I want to provide some 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, and Miccosukee Indian Country is within the Everglades. *** Its members are the only people to live within the Everglades (Indian or non-Indian) and the only Tribe with land in the Everglades.
*** The Tribe is a leader in Everglades protection, having won several critical lawsuits against pollution, and having set federally-approved water quality standards for the Everglades (including phosphorus) with its state status under the Clean Water Act.
*** The Tribe's members are guaranteed by Congress the right to live traditionally within Everglades National Park and Big Cypress National Preserve.
RESTORATION FAILURES: TWO EXAMPLES
The Miccosukee Tribe believes that Everglades restoration is in serious trouble due to misplaced priorities, subordination of fundamental democratic values, federal intransigence, and bureaucratic arrogance and incompetence. While we all have hope for the future, Everglades restoration is clouded by a past of discrimination and failure.
Let me emphasize at the outset that the issue before this Committee is not the legitimacy of restoration as a goal, but rather the false use and twisting of that goal to serve narrow parochial interests in the name of restoration.
Two examples will be sufficient. First, the central Everglades (including tribal Everglades) is given second-class status. This discrimination occurs: (i) despite the federal Indian trust obligation; (ii) despite the 1982 Congressional promise (in the Florida Indian Land Claims Settlement Act) that the central Everglades will be preserved in natural conditions; and (iii) despite the fact that the central Everglades is the largest remaining freshwater Everglades. [Exh. F.] It is a gross misconception that the Everglades is the same as Everglades National Park (encouraged by the Park).
Second, pre-existing authorized restoration projects are stalled. The Modified Water Deliveries Project was directed by 1989 Congressional Act to relieve flooding in the central Everglades and restore flows to the Park through Northeast Shark River Slough. But bureaucratic ineptitude and selfishness has blocked the project, causing destruction of tribal Everglades. And, despite guarantees of flood protection to an area known as the 8.5 square mile area, agencies are always trying to seize or condemn the minority residents' land. [Exhs. E & G.] The Miccosukee Tribe knows that taking the homes of these minorities is not necessary for restoration, and that the minorities are attacked because they are politically weak. I find it curious that the Miccosukee Tribe stands up for these minorities more than government agencies -- undoubtedly that's because Indians have been targets of land grabs themselves and recognize it when they see it. And it's because minorities must stick together -- if government can take their land, then it can take tribal land (and it can take your land, too).
PROPOSED WRDA 2000: WHAT'S IN IT
The Tribe has several points regarding what's in the Administration's proposed WRDA bill.
1. Chief's Report (Inappropriate Commitments) -- The bill would implement the Chief's Report (July) rather than the Comprehensive Everglades Restoration Plan (CERP/April). [Subsec. 3(a)(3) and 3(c)(2)(A)]. The multi-volume CERP was the product of a public consensus building process with broad support, but the Chief's Report substantially changed critical elements behind closed doors without public notice [Exh. B]. New commitments were made, contradicting CERP, such as 245,000 additional acre feet of water to the Park (over and above the increases in the April Plan), even though the April Plan specifically considered and rejected this proposal (known as D13R4) as destructive of other parts of the Everglades (including tribal lands) [Exh. C]. CERP picked D13R, reporting that "after looking at 10 alternative plans and over 25 modeling scenarios, including D13R4, alternative D13R is by far the best of the alternative plans" [Exh. C-1]. Yet the Chief's Report switched to D13R4 without any notice. The Report also downgraded flood protection and water supply with the phrase "to the extent practicable".
This is an outstanding example of the politicization of the Corps and Washington civilian interference which bends the process to placate the demands of groups with which the Administration is close (as well as the interference which Sen. Voinovich referred to in his recent letter to GAO).
Although the Administration tries to downplay changes in the Chief's Report, it keeps seeking to enact the Report, which itself demonstrates that there must be something different in the Report. Furthermore, Administration claims of Chief Report neutrality ring hollow in light of recently obtained documents [Exh. A], such as:
(i) A June 8th e-mail message from Dep. Asst. Sec. Michael Davis, stating that "the Chief's Report captures the Restudy Plan plus the subsequent commitments", also cautioning "please keep close hold and do not share outside your agency".
(ii) A June 11th e-mail within the Corps, referring to "the need to get these groups on board", but being "uneasy about changing what was in the report that has been reviewed at SDA and RO's".
(iii) A June 17th e-mail within the Corps referring to "the Michael Davis...OOPS, SORRY...Chief's Report...".
(iv) A June 17th e-mail to the Jacksonville Corps, stating "modification of the implementation plan, particularly in the case of D13R4, is not a small matter"; and Jacksonville's response, stating "you need to add the PIR for determining how to deliver the additional 245,000 acre-feet of water" and "this will affect the scheduling for components associated/affected by D13R4".
(v) A June 29th letter from DOI to Col. Miller (Jacksonville), stating "we appreciate the following additional commitments conveyed in the Chief of Engineer's Report: to deliver additional water (approximately 245,000 acre feet)...".
Congress should reject the Chief's Report and the politicization of the process that it represents; instead, WRDA should refer only the CERP itself, dated April 1999.
2. Interior Department Veto on Water Deliveries -- The bill gives the Interior Secretary a veto on water deliveries, essentially federalizing Florida water law. [Subsec. 3(i)(2)(B)]. DOI is one landowner among many, including the State, the Tribes, and private citizens. Water should be allocated fairly by the Corps without any party having a veto. Corps policy processes can certainly protect federal interests; and if the DOI will not trust Corps processes, then why should the State, or the Miccosukee Tribe, or private citizens trust it? This approach uses a double standard and is a DOI power grab to politicize water deliveries.
3. Abandoning Balanced Approach (Downgrading Supply and Flood Protection) -- The proposal abandons the balanced approach of WRDA 1996 by giving natural systems water first place, and water supply and flood protection second place. [Subsec. 3(i)(1)]. A quick list of problems here include: (i) It's just plain wrong to deny people flood protection and water supply; (ii) It's not necessary because we can achieve all goals; (iii) By downgrading one goal, a license is given to stop trying to reach that goal and maximum effort to reach all goals is lost; (iv) The public consensus for Everglades restoration is built on congressional and state promises of a balanced approach, and this consensus will evaporate when homes and cars are flooded; and (v) Previous laws committed to equal treatment of all goals, so how could the public trust any law when they can be disregarded so easily? In short, we can and should "get the water right -- for everybody", not adopt new policies that will send many people off the planet in their outrage. The current project purposes are environmental protection, water supply, and flood protection, and we should grant adequate assurances for each.
Even with a balanced approach mandated by WRDA 1996 and other laws, flood protection analysis was virtually overlooked. CERP reports that flood analysis was "not quantified" because models for flood control analysis were inadequate ("limited evaluation of impacts since model not designed for flood studies") [Exh. D-1]. "Studies to estimate the flooding impacts of the alternative restoration plans were limited due to the resolution of the model." For "areas that are expected to be adversely affected, further studies were recommended" [Exh. D-3]. If this is "equal" treatment, then "second class" treatment" would mean virtually elimination. These models need to be improved and the studies completed before project authorizations that could flood existing homes.
4. Programmatic Authority -- The proposal grants broad programmatic authority for no real reason except to escape Congressional scrutiny [subsec. 3(c)(2)(B), (C), & (D)] and uses vague references to "a programmatic manner" and "adaptive assessment" [subsec. 3(b)(5)]. Perhaps the "Pilot "Projects" [3(c)(2)(B)] (which are tests for later bigger projects) could be justified, but the "Other Projects" [3(c)(2)(C)] should have Feasibility Reports before authorization. For example, there's $100 million for "adaptive assessment and monitoring" with no actual plan, so the money could be spent on virtually anything, any study, any scientist -- essentially "vote buying". It's just a big pot of money with no controls. And there's $250 million for "other program authority" [3(c)(2)(D)] where no projects are specified and no controls exist at all. These are "cash cows" where the Administration can do whatever it wants -- either invent new projects you've never heard of; or substantially change projects which you have heard of, any way they want, as long as they keep the same name.
The CERP admits to a "high level of technical and implementability uncertainties" [Exh.C-4]. These include flood control (discussed above) and the known erroneous assumptions of the Natural Systems Model (NSM), particularly "discrepancy in the topographic data". "...[I]f consistent topographic assumptions were used [in NSM]..., target depths...would be shallower...and less water would be needed" [Exh.C-3]. Let's get those assumptions right before authorization.
Programmatic authority is particularly inappropriate when CERP itself admits to inadequacies in flood control models and the Natural System Model (NSM). Instead of programmatic authority, each project should be explored in depth through feasibility reports before authorization. This is too important to just throw money at it and then look away, hoping for the best.
5. Environmental Justice/Minority Rights -- The proposal shortchanges environmental justice, minority rights, and discrimination concerns by referring only "socially and economically disadvantaged persons" and then only requiring that "impacts...are considered". [Subsec. 3(h)(1)]. This is insufficient. The bill should prohibit discrimination and disparate impacts on minorities and socially disadvantaged persons in implementation. The League of United Latin American Citizens has already found minority discrimination in the Modified Water Deliveries Project, where the DOI seeks to forcibly remove largely Hispanic residents from more than 300 homes [Exh. E], despite Congressional guarantees to these people and Corps findings that it makes no substantial difference to the restoration of Northeast Shark River Slough (flowing into the Park).
PROPOSED WRDA 2000: WHAT'S NOT IN IT
Now let me comment on what's not in the proposed bill.
A. Tribal Roles -- The Tribes are left out in every part except the "Findings" [subsec. 3(b)(7)]. They should be incorporated in the definition of natural system lands and waters [3(a)(4)], the regulatory process [3(i)(2)(B]) & (C)], etc.
B. Protecting the Entire Remaining Everglades/Comprehensive Definition of Everglades/Equal Protection for Everglades -- No portion of the remaining Everglades (such as the southern Everglades in ENP) should receive more favorable treatment than any other portion (such as the central Everglades in WCA 3-A and Miccosukee Indian Country) in hydrology (water quantity and timing). An "Everglades Equal Protection Clause" should provide that all parts of the remaining Everglades receives equal hydrological treatment.
C. Meeting Prerequisites and Demonstrating Competence: Implementing the Modified Water Deliveries Project -- Component projects of the Everglades Restudy should not be authorized or funded until the federal agencies show the competency to implement the Modified Water Deliveries Project as directed by Congress (PL 101-229, section 104, including subsection 104(c)), which is categorized by law as a predecessor to the Restudy and assumed by the Restudy to have been implemented. [Exh. G.] The failure to im- plement the Modified Water Deliveries Project since its author- ization in 1989 (PL 101-229) and approval of the 21992 General Design Memorandum (GDM) by Congress is nothing short of scandalous.
D. Protecting Property Rights: Limiting Eminent Domain and Assuring Flood Control -- Property rights are fundamental to a free society. Federal and state agencies shall make every effort to avoid taking private property through eminent domain actions, and continued flood protection must be assured. Regarding eminent domain, privately-owned land should not be condemned through state or federal eminent domain procedures unless there is no other feasible alternative for achieving the specific project goals. It should be a defense to an eminent domain action that there is a feasible alternative other than condemnation of the property in question and increased costs alone shall not render an alternative infeasible. Regarding flood control, Congress should require that no project may proceed until and unless the established C&SF; Project levels of flood protection against a SPF (standard project flood) has been assured and certified by the Corps. The CERP states that its models "were inadequate to determine flooding effects", which must be remedied before projects are designed. Flooding has increased in urban areas recently because the water deliveries to the Everglades have been increased without providing the protections mandated by the same laws which authorized the increased deliveries (e.g., Experimental Water Deliveries, etc). [Exh. H.]
E. Eliminating Collateral Attack: Determination that Provisions of Collateral Federal Statutes Have Been Met -- Because the Everglades Restoration effort is a comprehensive overall plan to maximize Everglades restoration and environmental values over a broad range of parameters, collateral federal statutes which focus on single parameters should be deemed to have been met by operation of law. Such collateral statutes (e.g., the Endangered Species Act, the Fish and Wildlife Coordination Act) shall not be grounds for separate determinations or legal actions in connection with the construction or operation of Everglades restoration projects.
F. Avoiding Holding Funds Hostage: Fund Projects Through Corps or State (Not Through DOI) -- Previous Everglades funding channeled through the DOI has been held or diverted to achieve DOI goals beyond the scope of the appropriation. Projects should be funded by Congressional appropriations to the Corps of Engineers or to state agencies or to the Tribe, not through the Department of the Interior, so as to avoid the improper withholding of funding to influence or block implementation outside of accepted processes. If project funds are funnelled through DOI, Congress should specify the precise purpose of the appropriation and prohibit withholding of funds when the legal criteria for proceeding have been met.
G. Assurances: Environmental Protection, Water Supply, and Flood Protection -- Assurances for environmental protection, flood control, and water supply must be provided so that no segment of people or interest group is pitted against another. Without equal assurances, the consensus basis for Everglades restoration will be destroyed. Assurances should be given that:
(i) Sufficient Everglades Water -- Sufficient water will be provided to the Everglades (including WCAs, Miccosukee Indian Country, and ENP) so as to maintain its natural state.
(ii) Excess Everglades Water -- Excessive water levels (flooding) will not be allowed in the WCAs (including Miccosukee Indian Country) so as to maintain its natural state.
(iii) Flood Protection -- Flood protection will not be diminished (no project may proceed until and unless the established C&SF; Project levels of flood protection against a SPF has been certified by the Corps).
(iv) Water Supply -- Water supply for urban, residential, and agricultural uses will not be diminished and every reasonable effort will be made to expand such supply to meet future needs.
(v) Conflict/Shared Adversity -- If water supplies are insufficient to meet all goals or goals otherwise conflict, then each goal (water supply, environmental protection, and flood protection) shall be met through operation of the C&SF; Project components to the maximum extent practicable so that the deficiencies in reaching each goal are relative equal or proportionate to the deficiencies in meeting the other goals ("shared adversity").
(vi) Miccosukee Everglades Equal Protection -- Whatever assurances are provided to federal lands or interests shall include equal assurances to Miccosukee Indian Country (the only Tribe with lands in the Everglades Protection Area), defined as the Miccosukee Indian Reservation and Perpetual Leased Lands in WCA 3-A pursuant to PL 97-399 (1982) (definition of federal lands and interests must include tribal lands and interests).
PROBLEM SUMMARY: LEARNING FROM EXPERIENCE
A summary list of problems and lessons would include:
A. System Problem (Lack of a System-wide, Everglades-wide Commitment; Parochial Approach). The federal government is sacrificing the state and tribal Everglades in favor of the smaller federal Everglades (the Park). The Water Conservation Areas (especially WCA 3-A) are dying due to federal actions.
B. Process Problems (Lack of Commitment to Decision-making Process; Lack of "Partnership"; Low Inter-agency Cooperation; Pro Forma Use of Task Force) -- In addition, many agencies refuse to implement programs which have been finalized. The present federal approach is little more than lip-service to so-called "partnership".
C. Execution Problems (Inability or Failure to Execute Specific Projects) -- Stalled "Critical Projects", including Modified Water Deliveries, both held up for a decade. Agency incompetence, and outright refusal to execute any plan which the agency doesn't like, causes continuing damage to tribal lands and raises serious doubts about the wisdom of entrusting these agencies with the programmatic authority in restoration.
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 of both the Tribe and non-tribal residents, and the rule of law).
PRIOR TESTIMONY
The Tribe presented more general testimony describing these problems in detail to this Committee in Naples in January 2000, to which it commends the Committee's attention for further discussion.
CONCLUSION
In conclusion, the Miccosukee Tribe seeks fairness, non-discrimination, sound planning, and quality control in Everglades restoration. The Tribe is opposed to any approach which elevates the Department of the Interior over the Tribes or the State. The Corps can save the whole remaining Everglades; the Interior Department will save only its small part while sacrificing the other parts.