The Seminole Tribe welcomes the opportunity to share our views on the Water Resources and Development Act of 2000 legislation, S. 2437, with the Environment and Public Works Committee. As you know, we participated in the Committee's Naples field hearing on the Comprehensive Everglades Restoration Plan (CERP) and provided our general comments on Everglades Restoration and the federal government's plan to achieve restoration of a healthy Everglades through a balanced approach. While the Tribe is a strong supporter of the CERP, we oppose the approach proposed by the Administration, as embodied in S. 2437.
The Seminole Tribe of Florida has been an active participant in the multi-faceted efforts to restore the South Florida Ecosystem. As such, we have seen the value of our participation to the Tribe in being able to educate policymakers about the Tribe's concerns and needs. We have also found value in working with other stakeholders to formulate and refine policy positions. The Tribe applauds the Committee's approach to developing its legislation by listening to the input of the stakeholders in Florida, as well as the federal policy makers. A program developed though consensus will earn the support of South Florida and have an improved prospect for successful restoration of the natural system and stability in flood control and water supply for South Floridians.
This testimony describes the Tribe's concerns with S. 2437 and offers alternative approaches to addressing the needs of the South Florida Ecosystem and the people that populate it. Our general statements on the CERP still hold and can be applied to an analysis of S. 2437. The Seminole Tribe believes the restoration should seek to provide a healthy future for people of Florida, as well as for the natural environment, including the Everglades, that draws so many more people to visit and move to South Florida. A balanced approach is critical to success of the restoration effort.
The Seminole Tribe of Florida
The Seminole Tribe lives in the South Florida ecosystem. The Tribe relies on all aspects of a healthy ecosystem, including the Everglades, which provide many of our tribal members with their livelihood. Our traditional Seminole cultural, religious, and recreational activities, as well as commercial endeavors, are dependent on a healthy South Florida ecosystem. In fact, the Tribe's identity is so closely linked to the land that Tribal members believe that if the land dies, so will the Tribe. During the Seminole Wars of the 19th Century, the Tribe found protection in the hostile Everglades and Big Cypress Swamp. But for this harsh environment filled with sawgrass and alligators, the Seminole Tribe of Florida would not exist today. Once in the Everglades and Big Cypress, tribal members learned how to use the natural system for support without doing harm to the environment that sustained them. For example, the Seminole native dwelling, the chickee, is made of cypress logs and palmetto fronds. It protects its inhabitants from sun and rain, while allowing maximum circulation for cooling. When a chickee has outlived its useful life, the cypress and palmetto return to the earth to nourish the soil.
In response to social challenges within the Tribe, tribal leaders looked to the tribal elders for guidance. Our elders taught us to look to the land, for when the land was ill, the Tribe would soon be ill as well. When we looked at the land, we saw the Everglades and supporting ecosystem in decline. We recognized that we had to help mitigate the impacts of man on this natural system. At the same time, we acknowledged that this land must sustain our people, and thereby our culture. The clear message we heard from our elders and the land was that we must design a way of life to preserve the land and the Tribe. Tribal members must be able to work and sustain themselves. We need to protect our tribal farmers and ranchers.
Seminole Everglades Restoration Projects
Recognizing the needs of our land and our people, the Tribe has developed a plan to mitigate the harm to the land and water systems within our Reservations while ensuring a sustainable future for the Seminole Tribe of Florida. The Big Cypress Reservation is the first of our Reservations for which this plan has been implemented. The Tribe is in the early stages of developing a plan with similar goals on the Brighton Reservation.
On Big Cypress, the restoration plan will allow Tribal members to continue ongoing farming and ranching activities while improving water quality and restoring natural hydroperiod to large portions of the native lands on the Reservation and ultimately, positively affecting the Big Cypress National Preserve and Everglades National Park. Construction activities on the western side of the Reservation have been identified as a "Critical Project" under section 528 of WRDA '96. The Tribe is working closely with the NRCS to identify appropriate programs to complete construction of the project on the eastern side of the reservation. Two Wetland Reserve Projects are currently underway.
The Seminole Tribe is committed to improving water quality and flows on Big Cypress and has expressed that commitment by dedicating significant financial resources to our environmental programs and projects, as well as estimates of 9,000 acres of land to support the projects on Big Cypress alone.
General Comments on S. 2437
The Tribe's greatest concern about Section 3 of S. 2437 is that it lacks the balance necessary for successful implementation. The environmental crisis in South Florida was brought about by the Central & Southern Florida Project so efficiently achieving its congressionally mandated goals of providing flood protection and water supply to the farms and families of Florida, without fully appreciating the resulting impacts on the natural system. As the damage to the natural environment became evident, all entities began to recognize the interdependence of the natural system and the "built" environment. Congress, in directing the Corps of Engineers to complete the Comprehensive Plan, described its purposes as protecting water quality and reducing loss of fresh water from the Everglades. Congress also noted that the Comprehensive Plan "provide for the water-related needs of the region, including flood control, the enhancement of water supplies, and other objectives served by the Central & Southern Florida Project." (See Section 528(b)(1)(A)(i) of WRDA 1996.) The Restudy, as developed with input from a wide array of stakeholders, recognized the importance of addressing water needs in a balanced approach. Section 3 of S. 2437 abandoned the balanced approach and reverts to the myopic direction of the half-century old project authorization by stating that the purpose of the CERP and the historic Central & Southern Florida project is for the protection of the natural system. We urge the Committee to take a balanced approach to Section 3 by providing protection to the natural systems, the people, and the agricultural communities that share the South Florida Ecosystem.
The Tribe also has serious concerns about Section 3(i) regarding assuring of project benefits. More detailed comments regarding this section are provided below; however, our concerns are significant enough to list twice. The Tribe's water law is based upon a Water Rights Compact, codified in tribal, state, and federal law, the implementation of which is based on Florida State water law. The approach contemplated in Section 3 (i) attempting to federalize the water allocation decisions blatantly disregards the existing body of Florida water law. With Florida's water law thrown into disarray by this approach, the Tribe's Water Compact is jeopardized. The Tribe has proposed an alternative approach to Section 3 (i), and the Tribe also supports the approach taken in the recently passed Florida Everglades legislation.
Shared adversity is a guiding principle of the Tribe's approach to water rights. Shared adversity is the principle upon which the Water Rights Compact is based, and support for including shared adversity was one of the Tribe's consistent comments throughout the development of the Restudy. While S. 2437 acknowledges that the rights of existing users should be preserved, S. 2437 does not define existing user. Limiting existing user or existing use to the water being used today fails to take into account long-term permitted rights to water that may not be presently used. In comments on the Lower East Coast Regional Water Supply Plan, the National Park Service defined existing use as that amount of water being used on April 13, 2000, or on the day the Plan is to be adopted. That interpretation, we believe, would lead to a moratorium on water use in excess of that used on April 13 or the adoption date. A moratorium would apply to permitted, but not currently used existing use, as well as future new users. The Tribe's economic development has been such that the Tribe is not yet using its all its water entitlement. The inability to use its water rights would stunt the Tribe's economic development. We urge the Committee to ensure that S. 2437 incorporates the concept of shared adversity and clearly define "existing use" to prevent a water use moratorium in South Florida.
Specific Comments and Recommendations on S. 2437
Assuring Project Benefits
Upon review of Section 3(i) of S. 2437, it was immediately clear that the assuring project benefits language was problematic. The bill would require that federal regulations direct how all Central & Southern Florida project features (essentially all Corps of Engineers (COE) projects in South Florida) would contribute water to the "natural system." The bill requires the federal agencies to "consult" with the State. The Tribes are not addressed.
There are numerous, complex issues related to allocating any additional water that projects built pursuant to the Restudy recommendations brings to the South Florida ecosystem. In fact, resolution of all issues to the satisfaction of all stakeholders is impossible to reach in the time period that exists to produce a WRDA 2000 bill. S. 2437 creates the regulatory structure of programmatic regulations produced in 2 years, to be followed by project specific regulations as needed. The main problem with this approach is that it bestows on the Corps of Engineers (COE) and the Department of Interior (DOI) the sole decision making authority regarding how much water the "natural system" should receive from all COE projects. While S. 2437 requires consultation, it ignores established Florida water law and limits the potential role the Tribe should play in making decisions on future water rights.
Furthermore, the assurances language appears to attempt to alter the purpose of the original authorization of the Central & Southern Florida Project, as defined in previous Acts of Congress since Section 203 of the Flood Control Act of 1948. In the section entitled, "Dedication and Management of Water," the COE is required to dedicate and manage all water "made available" from all C&SF; project features, built under all prior authority and WRDA 2000, "for the temporal and spatial needs of the natural system." Absent from this requirement is, of course, the flood control and water supply needs of the people of South Florida in both agricultural and developed areas.
Given that S. 2437 was drafted by the COE and DOI, leaving the final decisions on the allocation of any of South Florida's water uses to the COE and DOI appears to leave all but the natural system under-represented. This approach seems to guarantee that the real decisions will be made in court. Litigating water rights is an expensive and time consuming process that will only serve to delay and increase the cost of an already expensive, long-term project that the people of South Florida need now. In addition, the confusion likely to result from litigation would delay the Tribe's ability to realize fully its water rights under the Compact.
The recently passed state legislation is significantly different from this federal proposal. Differing federal and state law on water assurances guarantees conflicts and delays as well. This issue is of particular importance to the Tribe because the Tribe's Water Rights Compact is based on the functionality of the State system. The proposed legislation will throw the State's water allocation system into turmoil because it does not mesh with the regulatory structure created by the 1972 Florida Water Resources Act (FL Stat. Chapter 373).
As a result of the Tribe's concerns, we offer the following proposal which was designed to eliminate, or at least reduce, these concerns:
The objective of the process to develop a water supply and flood control allocation policy in South Florida is to develop a consensus on water assurances that can be the basis of consistent federal, state, and tribal law.
The Task Force shall prepare a report and recommendations to Congress, the Florida Legislature, and the Seminole and Miccosukee Tribal Councils regarding the dedication and management of the water made available from project features authorized pursuant to the Comprehensive Everglades Restoration Plan. Included in the report and recommendations shall be a legislative proposal that can be adopted in identical form by the Congress, the Florida Legislature, and the Seminole and Miccosukee Tribal Councils.
The Task Force shall seek public comment in the formulation and final presentation of this report and recommendations. The Task Force shall operate under the consensus provisions, as described in its Working Group's Charter. This report shall be presented to Congress, the Florida Legislature, and the Tribal Councils within two years of enactment of WRDA 2000.
Upon receipt of the report and recommendations, the Congress shall enact authorizing legislation in coordination with the Florida Legislature and the Seminole and Miccosukee Tribal Councils.
This proposal also would eliminate opportunities for confusion, and ultimately litigation, by requiring that the enacting legislation be identical. Finally, this proposal would give all people of South Florida a greater role in the water allocation decisions, which would build greater support for the projects over time and help to ensure construction and operation of all the Restudy project features.
A provision similar to this will need to be adopted in state and tribal law, as well. The federal law cannot require the state and the tribes to legislate. The state and tribal provisions should also direct the state and tribal Task Force members to prepare a report and recommendations through a consensus process.
Alternatively, the Tribe has reviewed the Everglades Restoration and Funding legislation (HB 221) recently passed by the Florida Legislature. Given that the State legislation relies upon established state water law, including the Tribe's Water Rights Compact, to determine the allocation of new water benefits created by CERP project features, the Tribe would support incorporating this approach into federal law. Again, it has been the Tribe's experience over the thirteen years that the Water Rights Compact has been in place that consistency among federal, state, and tribal law contributes to the elimination of legally actionable conflicts.
Other Comments
The following provides detailed comments on Sections 3, 6, and 12, in the order in which the provisions appear.
Definitions (Section 3(a)). The definition of "Comprehensive Everglades Restoration Plan" includes the controversial Chief's Report. The Chief's Report is not a consensus document agreed upon by members of the South Florida Restoration Task Force and will undoubtedly meet with opposition to implementation. The definition of "Natural System" should be clarified to specifically exclude tribal lands.
Findings (Section 3(b)). The Tribe supports inclusion of the principles of adaptive assessment in the implementation of the CERP project features, as referred to in (b)(5). Also, the tribes should be included as local sponsors along with the State in Section 3(b)(7). The tribes and the State are not treated as equal partners throughout the draft legislation although they are each separate sovereigns.
Comprehensive Everglades Restoration Project (Section 3(c)). The Tribe specifically supports the pilot project defined in Section 3(c)(2)(c)(5), due to the potential flood control benefits for the Hollywood reservation.
Additional Program Authority (Section 3(d). The Tribe supports the use of the COE's use of program authority to speed the implementation of crucial project features. The authority provided by this section is similar to the critical projects authority provided in Section 528 (b) of WRDA 1996. The Tribe has worked closely with our federal and state partners to authorize the Tribe's Big Cypress critical project under the WRDA 1996 authority. The critical project authority provided by Congress in 1996 has allowed the Tribe to expedite this project and ultimately will bring the Tribe and the region restoration benefits years earlier than otherwise contemplated under the standard project authorization process. In addition, we anticipate that both the Tribe and the federal budgets will appreciate savings as a result of the abbreviated process. As a result of our experience, we endorse this expansion of that authority and recommend that Congress provide more guidance regarding the process for project criteria and project selection.
Cost Sharing (Section 3(f)). There needs to be a distinction for O&M; purposes between which features are authorized under this Act and which features are part of the original CS&F; Program for cost share purposes. This confusion results because the legislation references the CS&F; project. In addition, the Tribe recommends that the Critical Projects authorized by WRDA 1996 be subject to the 60/40 cost share for operations and maintenance. The critical projects, by definition, were so crucial to ecosystem restoration that the projects needed to be initiated prior to this bill. Project priority, as well as equity, require that the critical projects be afforded the same O & M cost share as all CERP projects.
Evaluation of Project Features (Section 3(g)). The Tribe should not merely be "coordinated with" on the development of Project Implementation Reports (PIR) for the project features, particularly regarding the availability of additional water. The Tribe should consistently be part of the decision making process at a minimum on the same level as the State. Thus, the Tribe should have sign off authority on all PIR's.
Also, Section (g)(2) addressing project justification must be clarified regarding how to analyze project benefits where one project feature has both water supply and water quality benefits. We understand that segregating such benefits would be difficult.
Socially and Economically Disadvantaged Individuals (Section 3(h)). The full citation for the reference in 3(h)(2)(B) is 15 U.S.C. 637(d)(3)(c).
Assuring Project Benefits (Section (3)(i)). The definitions of "substantial adverse impacts" and "existing legal water uses" need to be developed in Sec. (3)(i)(3). As discussed above, the term "existing legal water users" can have a number of different interpretations with wide-ranging impacts. On April 13, 2000, in comments provided to the South Florida Water Management District on the Lower East Coast Regional Water Supply Plan, DOI, through the National Park Service, recommended that:
"[E]xisting legal use" and existing legal user" refer to the quantity of water currently withdrawn and put to a reasonable-beneficial use under a statutory exemption or under terms of a valid water use permit. Any future use in excess of the quantity currently being withdrawn or pursuant to a new or renewed water use permit is not an "existing legal use." New permits for additional withdrawal shall not be issued until water reservations for the natural system are in place. The period for defining existing legal users should be defined as April 13, 2000 or the date when the LEC plan is adopted by the SFWMD Governing Board.
The above definition, as put forth by DOI, who has concurrence authority on the programmatic and project-specific regulations to make allocation decisions, would effectly place a moratorium on water use in South Florida. When permitted but not currently used water would be available after the water reservations for the natural system is highly uncertain. This approach threatens the vested rights the Tribe has to use water in the future under the Compact. This definition would effectively render state permits already issued for future consumptive use void. It is also inconsistent with the Tribe's water allocation rights set forth under the Compact.
Tribal Partnership Program (Section 6). A section should be added stating that this is supplemental authorization of funding for tribal water resource development projects. This section should not affect the ability to obtain funding for these project types under other legislative acts. Also, the $5,000,000/$1,000,000 limitation in Sec. 6(e) is too low and should be raised.
Reburial and Transfer Authority (Section 12). As a general principle, the Tribe believes that tribal remains should be treated with the utmost respect. The Tribe is not affected specifically by this section.
Conclusion
Thank you for the opportunity to share the views of the Seminole Tribe of Florida with the Committee. While the Tribe is a strong supporter of the restoration of the South Florida Ecosystem, we will continue to be vigilant in our review of its implementation. We look forward to a continued partnership on a government-to-government basis in the challenging effort to save our Everglades.