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.
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. 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.
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
Total Acres Needed
Total Expended to Date Cost Estimate
Acres Already Acquired
Acres Remaining to be Acquired
Remaining Cost Estimate
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.
 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)