Everglades Ecosystem Restoration: A Watershed Approach by the Legislature
A s late as the 1800s, the Everglades consisted of a 60-mile-wide shallow river,seldom more than two feet deep, flowing from Lake Okeechobee to Florida Bay. That was before the U.S. Army Corps of Engineers erected 1,400 miles of dikes, dams, levees, and water control structures in the name of water supply and flood control. Now in the year 2000, more than 50 years after Marjorie Stoneman Douglas wrote about the demise of the Everglades, only 2.4 million acres of Everglades remain—about one third of the original Everglades ecosystem. Lake Okeechobee is likewise experiencing adverse ecological impacts. Florida is now at a turning point, ready to begin reversing the effects of massive wetlands drainage, damage to our estuaries and loss of valuable water storage areas.1 S imply put, a replumbing of the water works which makes central and southern Florida habitable for humans is being proposed.
With an $8 billion price tag, the Central and Southern Florida Project Comprehensive Review Study, or Comprehensive Everglades Restoration Plan (CERP) as it is now known, is one of the most ambitious environmental restoration initiatives ever undertaken anywhere in the world. The intent of the CERP is to restore and preserve South Florida’s natural ecosystems, including the internationally renowned Everglades and Lake Okeechobee, while protecting and enhancing water supplies and flood control.2 T his undertaking, an unprecedented federal-state partnership, involves an impressive array of scientists, engineers, policymakers, and other professionals from federal, state, regional, and tribal governments working to develop a conceptual road map for environmental restoration.
Background
• The Central and Southern Florida Flood Control Project
The Central and Southern Florida Flood Control Project (C&SF Project is a massive multipurpose public works project, one of the largest in the world. Over a 20-year period, the U.S. Army Corps of Engineers and its federal and state partners built an elaborate network of thousands of miles of canals encompassing 18,000 square miles of land.3
The C&SF Project includes components intended to handle flood control, regional water supply for agricultural and urban areas, prevention of salt water intrusion, water supply needs to Everglades National Park and other environmental resources, as well as the preservation of fish and wildlife, recreation, and navigation.
For more than 50 years, the C&SF Project has performed its assigned functions admirably. Without construction of the C&SF Project, only a fraction of South Florida would be habitable. However, the project also has had extensive unintended and profound adverse effects on many of South Florida’s ecosystems.4 The original nine million square miles of Everglades have been reduced to less than half its original size. There has been an approximately 90 percent reduction in wading bird populations, infestation of over two million acres with exotic vegetation that destroys virtually all natural habitat values, and 1.7 billion acre-feet of freshwater per day wasted through ocean discharges through drainage lands.5
• The South Florida Water Management District
The SFWMD is a regional water resource management agency involved in significant ongoing programs to acquire and manage environmentally sensitive lands, regulate water resource impacts of development activities, design and construct ecosystem restoration projects, provide applied scientific research relevant to natural resource issues, and operate a regional water conveyance system for flood protection, water quality, environmental protection, and water supply purposes.
• The Comprehensive Everglades Restoration Plan
While many interests have consistently been working to reverse the ecological decline of the Everglades ecosystem over the past three decades, the CERP plan represents the most comprehensive attempt at an ecosystem-wide solution. The recommended plan will change the quantity, quality, timing, and distribution of water in central and south Florida and ensure the quality of life in south Florida.6
The U.S. Congress authorized development of the CERP plan of the C&SF Project in 1992 and provided further specific direction and guidance through two resolutions and legislation in 1996.7 The responsible lead agencies are the U.S. Army Corps of Engineers, Jacksonville District, and the SFWMD. The responsible cooperating agencies are the U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, the National Park Service, the Florida Fish & Wildlife Conservation Commission, the U.S. Geological Survey, the Natural Resources Conservation Service, and the Florida Department of Environmental Protection. 8
Balancing the conflicting needs for water consumption in a rapidly growing south Florida and management of water resources for flood control and environmental restoration is at the heart of the successful implementation of the CERP. Consider this: The constituents for this $8 billion plan include over six million people in the lower east coast of Florida (predicted to be eight million people by 2010!), and an economically productive agricultural industry (over $4 billion annually) on thousands of square miles of drained Everglades.
The Governor’s Commission for the Everglades,9 an appointed commission (by Governor Chiles) of involved citizens and other stakeholders, developed a conceptual plan for the CERP which helped guide the formulation of alternative plans.10 The Governor’s Commission for the Everglades became keenly aware of the need to make the public informed of the problems facing South Florida:
The people of Florida should be aware that the south Florida ecosystem is not sustainable on our present course. Floridians, at all levels, need to recognize that we can sustain neither our existing human nor our natural systems in south Florida with regard to water if we do not change direction.11
Taking this lead, the CERP accomplished an extensive review of the C&SF Project with the intent of identifying problems and solutions. The formal recommendations of the CERP plan are documented in the Central and Southern Florida Project Comprehensive Review Study – Integrated Feasibility Report and Programmatic Environmental Impact Statement (April, 1999 Comprehensive Plan.) This CERP, comprised of 4,000 pages of text, maps, graphics, and appendices, contained a recommended conceptual plan for the water resources of central and southern Florida.
In order to accomplish these goals, the CERP proposes significant structural and operational changes to the existing C&SF Project, including development of over 217,000 acres of surface water storage reservoirs and water preserve areas; acquisition of 220,141 acres of land; modifying water deliveries to the Everglades with a projected increase of 320 billion gallons of water per year;12 removing 240 miles of barriers to sheetflow; and reusing 220 million gallons per day of urban wastewater.13 The recommended 217,000 acres of new reservoirs and water treatment areas will be used to achieve the restoration of more natural flows; improved water quality; natural hydroperiod targets; and improvements to native flora and fauna.14
The State CERP Law
In 1999, the Florida Legislature passed a landmark piece of legislation (the CERP Act, Fla. Laws Ch. 143) in which each critical step of implementing the CERP is to be reviewed and approved through a state process—a road map for state participation in this unprecedented partnership with the federal government. This process was created to ensure all vested interests (e.g., environmental vs. development) dependent on the state’s water resources are balanced and considered. The following provides an overview of Ch. 99-143, L.O.F., codified in F.S. §373.1501 (1999), detailing this new state process.
Pursuant to the CERP Act, the SFWMD is authorized to act as the local sponsor for CERP projects, subject to review and oversight by the Florida Department of Environmental Protection (FDEP) as set forth in F.S. §73.1501 (1999). As the local sponsor, the SFWMD is required to participate in the development of CERP projects to:
1) Ensure that all legal responsibilities under F.S. Ch. 373, for water supply, water quality, flood protection, threatened and endangered species and other water and natural resource issues;
2) Determine that CERP projects are feasible in terms of engineering and technology and are the “most cost effective and efficient” of the feasible alternatives;
3) Determine with “reasonable certainty” that the CERP projects are consistent with, and capable of being implemented and permitted under, federal and state laws by means of pre-application coordination processes with affected federal and state governmental agencies;
4) Provide “reasonable assurances” that the quantity of water available to existing legal users (consumptive use permit holders) is not diminished by implementation of CERP components so as to adversely impact existing legal users, and that existing levels of service for flood protection is not diminished outside the geographic area of CERP projects; and
5) Ensure that CERP project implementation is coordinated with existing utility and public infrastructure, to minimize impacts or restoration.
The CERP Act includes a savings clause that states the existing Florida Department of Environmental Protection and South Florida Water Management authorities under F.S. Ch. 373, “to prevent harm to the water resources” are in no way modified or supplanted. As a result, the CERP Act does not create new legal standards for the protection of consumptive use of water or flood protection. It does, however, ensure that existing legal standards are adequately considered in the CERP implementation process.
The CERP Act also expressly states that the FDEP and the SFWMD must expeditiously pursue implementation of CERP components previously authorized by the U.S. Congress or the Florida Legislature.
After review of a CERP component pursuant to the enumerated criteria, the component is subject to review by the FDEP. The CERP Act provides that the FDEP must approve CERP components before they are submitted to the U.S. Congress for authorization or before receiving additional State of Florida funds. FDEP’s approval of CERP components is final agency action subject to administrative challenge pursuant to F.S. Ch. 120. Furthermore, the Executive Office of the Governor is required to review all proposed expenditures for CERP components in the SFWMD’s budget.
Everglades Restoration Investment Act
Signed into law by Governor Jeb Bush on May 16, 2000, HB 221 (Fla. Laws Ch. 129) creates the Everglades Restoration Investment Act. The Everglades Act constitutes a watershed event in the saga of Everglades restoration. Approximately $100 million in dedicated state annual funding, coupled with funding from the SFWMD and other local entities, comprises the local sponsor’s share of the $8 billion CERP price tag over the next 20 years.
• Legislative Intent
Providing strong legislative intent, the Everglades Act prescribes that implementation of CERP will be “full and equal partnership” between the state and federal governments. The CERP, under the Everglades Act, is to be used as a “guide and framework” for a continuing planning process. The Everglades Act pays homage to the importance of, and need for, protection of water quality in the Everglades and the reduction of the loss of fresh water from the Everglades. Recognizing that the CERP should not just be an environmental restoration plan, the Everglades Act provides that CERP features should also meet other water-related needs of the region including flood control, enhancement of water supplies, and other objectives of the project.
• Project Implementation Reports
The Everglades Act requires the SFWMD, in cooperation with the U.S. Army Corps of Engineers, to complete a project implementation report (which may ultimately be submitted to Congress) to:
a) Address each of the project component features that were mandated in last year’s law (F.S. §373.1501) including such things as its economic and environmental benefits and engineering feasibility.
b) Identify the increase in water supplies resulting from the project component. These additional water supplies are to be allocated (permitted) or reserved for environmental purposes pursuant to F.S. Ch. 373.
• Funding Scheme
To finance implementation of the CERP, the Everglades Act authorizes several vehicles which generate funds to be deposited into the Save Our Everglades Trust Fund. The Everglades Act funds the Save Our Everglades Trust Fund as follows:
a) For FY 2000/2001 only, $50 million from state funds and $30 million from interest payments on unexpended Preservation 2000 allocations,
b) Beginning FY 2001/2002 for nine consecutive years, $75 million from state funds,
c) Beginning FY 2000/2001 for 10 consecutive years, $25 million of the SFWMD’s 35% of funds from the Florida Forever Act.
Although not stated in law, the FDEP anticipates spending approximately $23 million annually on land acquisitions that will be credited toward the CERP.
The day before session ended, a paragraph was inserted into the bill which underscores existing law by specifically authorizing the FDEP during FY 2000/2001 to seek additional spending authority to transfer surpluses from other trust funds into the Save our Everglades Trust Fund. This provision became important to numerous south Florida legislators because it allows FDEP to supplement the trust fund if there is a belief it is necessary to give the federal government the appropriate assurances to pass the federal legislation.
In addition, Congressional funds appropriated for implementation of CERP, additional funds appropriated by the Florida Legislature for implementation of CERP, and gifts designated for implementation of CERP are authorized for inclusion in the Trust Fund.
Distribution of funds from the Save Our Everglades Trust Fund to the SFWMD must be in accordance with legislative appropriations. This year’s Appropriations Act (HB 2145) allows the SFWMD to use the trust fund for land acquisitions so long as they are on its approved five-year plan of acquisition (Save Our River’s Report). Before additional funds can be released, FDEP must first approve the project component.
The Everglades Act requires that at the end of 10 years, distributions from the trust fund must be matched by the cumulative contributions from all local sponsors. These contributions can come in the form of funds as well as credits for work performed for project components.
• Annual Reports
The Everglades Act requires the SFWMD in cooperation with FDEP to submit an annual report, beginning November 30, 2000, to the Governor, the President of the Senate, and the Speaker of the House of Representatives. The focus of this report is to provide detailed information on implementation of the CERP. For example, the report must: a) itemize by source and amount, the expenditures made by the state and each local sponsor during the fiscal year; b) describe the purpose for the expenditures; c) provide a schedule of anticipated expenditures for next fiscal year; and d) describe the progress made in implementing the CERP, including providing a status report of all project components initiated after June 30, 2000, or after the last report.
In turn, FDEP is required to prepare a detailed report on all funds expended by the state and credited toward the state’s share for implementing CERP and describe the purposes for which the funds were spent.
Lake Okeechobee Protection Act
The Lake Okeechobee Act (LOK Act, Fla. Laws Ch. 130) provides a critical first step in addressing the health of the second largest freshwater lake in the continental United States. The LOK Act establishes a comprehensive long-term program to restore and protect Lake Okeechobee and downstream receiving waters. Three agencies are charged with implementing the LOK Act—the Florida Department of Environmental Protection, the Department of Agriculture and Consumer Services (DACS), and the SFWMD. The LOK Act is similar in scope and approach to the Everglades Forever Act (see F.S. §373.4592). The LOK Act broadly establishes the Lake Okeechobee Protection Program and Lake Okeechobee Protection Permits.
• Lake Okeechobee Protection Program
The Lake Okeechobee Protection Program consists of numerous parts. It phases in phosphorus load reductions by requiring: a) construction of stormwater and other detention treatment areas; b) detailed evaluation and monitoring of the water quality in the watershed; c) development of “best management practices” for all non-point sources; d) implementation of measures to protect native flora and fauna; and e) a study to assess ways to reduce the phosphorus loads within Lake Okeechobee followed by implementation of the findings. Provided below is a synopsis of each part of the program.
1) Lake Okeechobee Protection Plan. January 1, 2004, the SFWMD, in cooperation with DEP and DACS, is to complete a Lake Okeechobee Protection Plan that provides an implementation schedule describing how all applicable water quality standards, particularly for phosphorus, in Lake Okeechobee and downstream receiving waters will be reduced or met. This comprehensive plan must incorporate information gathered in the other Lake Okeechobee related programs identified in the law, including phase I of the Construction Project, the Watershed Phosphorus Control Program, the Research and Water Quality Monitoring Program, as well as the Internal Phosphorus Management Program.
2) Lake Okeechobee Construction Project. The Lake Okeechobee Construction Project consists of two phases. The first phase provides an action plan encouraging immediate construction of stormwater treatment areas to reduce phosphorus loads in priority basins going into Lake Okeechobee. These projects are to be completed by 2004.
Phase II of the Construction Project includes the construction of additional treatment facilities by the SFWMD to reduce phosphorus loading into Lake Okeechobee. The Lake Okeechobee Construction Project authorized under this act must be designed to achieve a water quality standard of 40 parts per billion (ppb) for phosphorus, unless a total maximum daily load is established that is different.
3) Lake Okeechobee Watershed Phosphorus Control Program. This program is designed to improve the management of phosphorus loads by continuing implementation of existing regulations and by developing and implementing both agricultural and nonagricultural “best management practices” (BMPs). DACS is required to establish BMPs for agriculture. If a farmer implements a DACS-developed BMP plan, the law provides a rebuttable presumption that the farm is meeting applicable water quality standards. The SFWMD or FDEP may still exercise regulatory authority, however, if it is shown the standards are not being met.
4) Lake Okeechobee Research and Water Quality Monitoring Program. The SFWMD, in cooperation with FDEP and DACS, is to complete an extensive research and monitoring program to provide the necessary information for the Lake Okeechobee Protection Plan. The report is to be issued by July 1, 2003. Among other things, this program will determine the relative contribution of phosphorus from all identifiable sources, including from the Upper Kissimmee Chain-of-Lakes and Lake Istokpoga. This program must evaluate the feasibility of incorporating technologies that will further reduce nutrient levels.
5) Lake Okeechobee Exotic Species Control Program. The coordinating agencies must identify the exotic species threatening the native flora and fauna and develop and implement measures to protect them by June 1, 2002.
6) Lake Okeechobee Internal Phosphorus Management Program. As part of an initiative to reduce phosphorus within Lake Okeechobee, by July 1, 2003, the SFWMD, in cooperation with FDEP and DACS, is to complete a feasibility study to determine if it is reasonable to remove phosphorus-laden sediments from the lake. If “feasible,” a comprehensive sediment removal project is to be initiated.
7) Annual Progress Report. The LOK Act requires the SFWMD to submit an annual progress report to the Governor and Legislature each January 1.
• Lake Okeechobee Protection Permits
Lake Okeechobee Protection Permits are established by the LOK Act. With the exception of permits that might be required under the National Pollution Discharge Elimination System program, the permits required under this act are in lieu of any permits required under F.S. Ch. 373 or 403. All water control structures discharging into or from Lake Okeechobee must obtain an operating permit from FDEP. The SFWMD must apply for the necessary five-year permits by September 1, 2000.
January 1, 2004, the SFWMD has to apply for a permit modification for its existing structures. The modifications will include proposed changes to ensure that discharges through the structures meet state water quality standards and the total maximum daily loads by no later than January 1, 2015.
• Funding
The Appropriations Act contains a $38.5 million appropriation for Lake Okeechobee. Of that, $15 million is transferred to DACS for research, development, demonstration, and implementation of “BMPs and other measures” for Lake Okeechobee water quality improvement. The bill provides numerous examples of what practices might be included in the term “BMPs and other measures.” The remaining $23.5 million is provided to the SFWMD to implement the Source Control Grant Program, restore isolated wetlands, retrofit water control structures, and buy the Grassy Island Reservoir Assisted Stormwater Treatment Area.
Conclusion
For successful implementation, the CERP must reflect a consensus-based approach, including an open process for public debate, that carefully balances its stated goals. Some commentators have accurately remarked, “the train won’t leave the station until all passengers have boarded.” Stated another way, the CERP process must ensure that the water supply and flood protection needs of people and the economy are addressed without sacrificing the goal of Everglades restoration. q
1 U.S. Army Corps of Engineers and South Florida Water Management District, Central and Southern Florida Project Comprehensive Review Study Overview, p. 18 (October 1998).
2 U.S. Army Corps of Engineers and South Florida Water Management District, Central and Southern Florida Restudy Update, What is the Restudy?, Vol. 1, June 1998.
3 This network comprising 16 counties in South Florida consists of 720 miles of levees, approximately 200 water control structures and 16 major pump stations to route surface waters through much of South Florida.
4 U.S. Army Corps of Engineers and South Florida Water Management District, Rescuing an Endangered Ecosystem—The Plan to Restore America’s Everglades (visited June 26, 2000) < http://www.evergladesplan.org/ >.
5 Id. at pg. 2, Why Restore the Everglades?
6 Id.
7 Water Resources Development Act of 1992, §309(1), Pub. L. No. 102-580; Water Resources Development Act of 1996, §528, Pub. L. No. 104-303.
8 Supra note 2.
9 The Governor’s Commission for the Everglades succeeded “The Governor’s Commission for a Sustainable South Florida” which Commission was created by the late Governor Lawton Chiles in 1994 and operated until June, 1999. See,< http://fcn.state.fl.us/everglades/gcssf/gcssf.html >
10 Supra note 2.
11 U.S. Army Corps of Engineers and South Florida Water Management District, Central and Southern Florida Project Comprehensive Review Study B Overview, pg. 12 (October, 1998) (citing The Governor’s Commission for a Sustainable South Florida, October Report (1995)).
12 Letter to the Secretary of the U.S. Army from Lieutenant General Joe N. Ballard, U.S. Army Chief of Engineers (June 22, 1999).
13 U.S. Army Corps of Engineers and South Florida Water Management District, Central and Southern Florida Project Comprehensive Review Study B Draft Integrated Feasibility Report and Programmatic Environmental Impact Statement, pp. v – vii (October 1998).
14 Id.
John J. Fumero, a graduate of the University of Miami Law School, is general counsel of the South Florida Water Management District. He represents the agency before state, federal, and administrative forums on a variety of natural resource management issues. Mr. Fumero is a member of the executive council of the Environmental and Land Use Law Section of The Florida Bar and is on the Board of Directors for ASPIRA and the Not for Profit Resource Institute.
This column is submitted on behalf of the Environmental and Land Use Law Section, Richard Hamann, chair, and Melissa P. Anderson, editor.
