EVERGLADES RESTORATION IN CRISIS
SINCE WRDA 2000
Testimony by
Billy Cypress, Chairman
Miccosukee Tribe of Indians of Florida
Committee on Environment and Public Works
United States Senate
September 13, 2002
My name is Billy Cypress, Chairman of the Miccosukee Tribe of Indians
of Florida. I've testified to this
Committee before and my written testimony contains a full description of the
Miccosukee Tribe's place in the Everglades and its role in Everglades
restoration, so I will not explain that now, except to point out that we are
the only people to live in the Everglades, that much of the Everglades is
tribal land, and that the Tribe has adopted EPA approved water quality
standards for the Everglades under the Clean Water Act.
Thank you for the opportunity to testify on the status of Everglades
restoration since the passage of the Water resources Development Act of
2000. WRDA 2000 was a positive step on
which this Committee spent much productive labor. But agency actions since its passage leave much to be desired --
and in some cases the agencies are retrogressing, actually taking steps quite
harmful to restoration.
THE IMPORTANCE OF RESTORATION
AND
FAILURES IN IMPLEMENTATION
Two points are important.
First, that Everglades restoration, no matter what the status of its
implementation, continues to be of great national importance and is well worth
the effort. As I said to the Florida
Legislature in 1994, the Everglades is the Mother of the Miccosukee Tribe, and
she is dying. She is in the care of
others, who do not seem to care.
Second, implementation of Everglades restoration is in serious trouble
due to misplaced priorities, subordination of fundamental democratic values,
federal intransigence, and bureaucratic arrogance and incompetence. While we all have hope for the future,
Everglades restoration is clouded at present by a past of discrimination and
failure.
THE RECORD IN 2002
Consider, for example, that just this year federal courts in South
Florida have found government action relating to the Everglades to be in
violation of federal law four times in four different cases.
RESTORATION
AND THE COURTS -- (1) In
February 2002, a federal district trial court found that the Corps of Engineers
had acted arbitrarily and capriciously in adopting an Interim Operating Plan
for the Cape Sable Seaside Sparrow (the U.S. did not appeal). (2) Just this month (September 2002), the
Eleventh Circuit Court of Appeals found unanimously that the federal government
had used improper procedures in developing restoration policy by establishing
an advisory committee with the State of Florida without meeting public notice
and meeting requirements of the Federal Advisory Committee Act (FACA). These cases were both brought by the
Tribe. (3) In July 2002, a federal district court found that the Corps acted
unlawfully in attempting to condemn homes in the long-delayed Modified Water
Deliveries Project. This case was
brought by the homeowners. (4) In
February 2002, the Eleventh Circuit Court of Appeals upheld a trial court
finding that the State of Florida (Water Management District) was violating the
Clean Water Act by discharging pollution into the Everglades in Broward
County. This case was brought by the
Tribe.
Each of the cases involved serious (not just technical) matters of
Everglades policy and policymaking.
But, it seems, that nothing bad ever happens to governments when they
are found to be in violation of the law.
They just go on like nothing happened.
In fact, the senate just rewarded the unlawful behavior of the Corps in
the Modified Water Deliveries Project by passing an amendment to the Interior
Appropriations Bill which legitimizes its unlawful behavior. How can any citizen or Indian Tribe trust
the law when agencies can ignore the law for years and then, when a court finds
the action to be indeed unlawful, Congress just changes the law. The "rule of law" does not mean that
you just change the law to fit whatever an agency does; it means that the
agency conforms its behavior to the pre-existing law. So far, Everglades restoration is a case study of trashing the
rule of law, legal promises made by Congress but broken at a whim, phony
guarantees of protection to citizens and the Tribe which mean nothing when the
time comes to rely on them.
WATER QUANTITY (HYDROPERIOD RESTORATION):
MOVING FURTHER AWAY FROM NATURAL LEVELS AND REJECTION OF THE NATURAL SYSTEM
MODEL –
Several federal agencies (Department of the Interior and the Corps)
have decided that hydroperiod restoration is not the priority goal,
notwithstanding the CERP priority on such restoration. The 1999 CERP Plan provided that
"getting the water right" (hydroperiod and pollution; i.e., water
quantity and quantity) was the means and goal of Everglades restoration. This is the Tribe's position. If we achieve water quantity and quality,
other biological elements will follow.
But the federal agencies now object to this approach, because
hydroperiod restoration will have a temporary negative impact on any
non-natural conditions which some animals and plants (i.e., some species) like
better than natural conditions. These
agencies are not willing to restore the Everglades if the natural Everglades is
not the best condition for their client species which like the non-natural
Everglades better!
This is illustrated by the actions of the Corps and Fish and Wildlife
Service in connection with the Cape Sable seaside Sparrow, which move further
away from natural water levels in the western Everglades than even the C&SF
project had caused. In the western
Everglades (tribal areas), the C&SF project caused waters north of Tamiami
Trail to be higher than natural; and C&SF caused waters south of the trail
to be lower than natural. Believe it or
not, actions being taken now are causing water north of the Trail to be even
more unnatural, even higher than C&SF levels (which we are supposed to be
fixing). Likewise, waters south of the
Trail are being forced even more unnatural, lower even than C&SF levels.
This absurdity has resulted in Fish and Wildlife Service claims that we
cannot rely on the Natural System Model (NSM), whenever FWS doesn't like the
model. Even though the validity of NSM
was central to the whole idea of CERP, FWS now picks and chooses when it will
rely on NSM and when it just decides that NSM is no good -- essentially,
disregarding this scientific model whenever it doesn't produce the results FWS
wants.
This
is outrageous, just like Alice-in-Wonderland.
And its destroying tribal lands north of the Trail. In March 2002, the Amended Biological
Opinion finally acknowledged that 88,300 acres of Everglades north of the Trail
(tribal lands) will be degraded by this action.
The Tribe's statement on this critical issue, with graphs proving the
facts, is contained in a special section of the Report of the South Florida
Ecosystem Task Force (and it is attached to my written testimony).
WATER QUALITY
(POLLUTION ABATEMENT) --
Most water quality improvements are considered to be pre-CERP under State
programs. These State programs are behind schedule and no method of achieving
final water quality standards by the 2006 deadline has been selected. The federal district court overseeing the
federal consent decree on water quality has expressed interest in the apparent
problems in this area and has scheduled an extensive hearing for next week.
A SUMMARY OF CRITICAL ASPECTS
OF
EVERGLADES RESTORATION
There are several critical aspects of Everglades restoration which are not
well understood at the highest levels of federal and state administration
(due to inevitable time constraints and reliance on pre-existing bureaucracy)
and which are exploited to achieve distortion by intermediate levels of
bureaucracy (to achieve narrow agendas tied to client or constituent
groups, such as environmental group ties within the National Park
Service). These critical aspects
include:
1. DESTRUCTION OF NON-FEDERAL EVERGLADES (STATE
AND TRIBAL EVERGLADES) -- There is more freshwater Everglades to be saved
outside of Everglades National Park and the Loxahatchee National Wildlife
Refuge than within the Park and the Refuge, but federal agencies discriminate against
the state and tribal Everglades, sacrificing the largest part of the remaining
freshwater Everglades in favor of the smaller federal Everglades in the Park
and the National Wildlife Refuge
*** The remaining "River of
Grass" to the north of the Park and to the south of the Refuge
(outside of federal control), in the Florida Water Conservation Areas and
Miccosukee Indian Country, is much larger than the Park and the Wildlife
Refuge.
*** Everglades National Park itself is
less than half of the remaining freshwater Everglades.
*** The federal agencies (DOI, Park,
etc) always seek their own aggrandizement at the expense of the rest of the
Everglades
*** The Department of the Interior seeks to sacrifice
the larger Everglades in State and Tribal control to serve a sub-optimal,
selfish goal of absolutely perfect treatment of their lands.
*** The federal government always gives
priority first-class status to federal land, while giving equally
important State, Tribal, or private lands only second-class status or no
status at all.
RECOMMENDATIONS -- (A) Direct that all of the remaining
Everglades be treated equally (all Everglades within the official
Everglades Protection Area), with no preference for federal lands over State or
Tribal lands (an "equal protection" concept).
(B) Review Department of Justice
litigation positions to provide full protection and equal treatment of all
remaining Everglades, including tribal Everglades.
2. ENDANGERED SPECIES ACT DISTORTIONS -- The
Department of the Interior in the prior Administration used the ESA to try to
wrest control of the entire "Central and South Florida Project for Flood
Control and Other Purposes" from the Corps of Engineers, posing a serious
threat to balanced restoration and to Tribal Everglades, as well as to policy
control of the process
*** DOI has tried to gain control of all
water delivery schedules throughout the South Florida region through the
Endangered Species Act, both directly (through "Biological Opinions",
etc) and indirectly (through illicit coordination with client environmental
groups to induce agency-supported lawsuits).
*** DOI control of the Project, which is a
congressionally-authorized Corps of Engineers project, would be a disaster for
South Florida residents (reduced flood protection and water supply).
*** DOI control of the Project also would be
a disaster for the Administration, because DOI bureaucrats would constantly
constrain the administration's options, "setting up" the
Administration for criticism and hostile (agency-induced) litigation from
client environmental groups.
RECOMMENDATIONS -- (A) Review the use of the ESA in
the Everglades at the DOI Secretary level, with input from outside the agency
staff channels.
(B) Gain control of Department of Justice
litigation strategies (which have been previously in the hands of attorneys
tied politically to the prior Administration's views).
3. DIMINISHED FLOOD PROTECTION AND DESTRUCTION
OF TRIBAL LANDS AND PRIVATE PROPERTY -- Everglades restoration as implemented
has resulted in tragic and unnecessary flooding of residential homes and
destruction of private property
*** The Comprehensive Plan of the Corps of
Engineers, as approved by Congress, demonstrates that Everglades restoration
need not diminish flood protection and destroy tribal lands and other private property rights
*** The Department of the Interior
(especially National Park Service and Fish & Wildlife Service) have used
restoration to deliberately establish park "buffer zones"
(which Congress has refused to authorize) and priority for Park lands, and to condemn
and flood private property (which Congress has specifically protected in
Everglades legislation), by raising canal water levels without providing the
congressionally-mandated collateral flood protections.
*** Unnecessary flooding of homes
(including the City of Sweetwater) and tribal lands in the last three
years was caused by Park Service intransigence, Administration-coordinated
environmental group pressure, and CEQ interference, all aimed to distort the
work of the Corps of Engineers.
RECOMMENDATIONS -- (A) Instruct the Corps
of Engineers to achieve the flood protection goals of the Central
and South Florida Project, including flood protection of tribal lands, as well
as the environmental goals.
(B) Instruct the Department of the
Interior to cease urging the flooding and condemnation of homeowners.
(C) Instruct Corps and DOI to treat tribal
Everglades equal to federal Everglades, without discrimination.
Everglades restoration programs since the enactment of WRDA 2000 are in
a crisis because federal and state agencies have not taken seriously their
duties to follow the law and to restore proper water flow and water
quality. Each agency has its own narrow
procedures and goals, and none has committed fully to "getting the water
right"; that is, none has committed fully to re-establishing natural water
levels and water quality. No one
suffers more from this failure of vision, from this failure of commitment, than
the Miccosukee Tribe of Indians which has called the Everglades home for
centuries
I have served as Chairman of the Miccosukee Tribe of Indians of Florida
for more than twelve years and as a tribal elected official for more than
twenty years. At the outset, I want to
provide some interesting information about the Miccosukee Tribe of Indians of
Florida and the Tribe's role in the Everglades:
*** The Miccosukee
Tribe is a federally-recognized Indian Tribe.
*** Miccosukee
Indian Country is within the Everglades (Water Conservation Area 3-A and
Everglades National Park, within the Everglades Protection Area).
*** The only
Tribe with lands within the Everglades (Miccosukee Indian Country,
consisting of Indian Reservation lands, Congressionally-recognized Perpetual
Lease lands, Congressionally-established Miccosukee Reserved Area lands, and
Miccosukee Dependent Indian Community lands within the Everglades Protection
Area).
*** Its members are
the only people to live within the Everglades (Indian and non-Indian in
Everglades Protection Area).
*** The Tribe is
approved with state status under the Clean Water Act.
*** The Tribe has
set federally-approved water quality standards for the Everglades
(including phosphorus).
*** The Tribe's
members are guaranteed by Congress the right to live traditionally within
Everglades National Park and Big Cypress National Preserve.
CONFLICTING PRIORITIES IN HYDROPERIOD RESTORATION
Dexter Lehtinen
Member, South Florida Ecosystem Restoration
Task Force
August 26, 2002
(Reprinted from the Task Force Report for
2002)
The Task Force Report, while admirable in many respects, fails to
address one of the central problems in Everglades restoration -- that is, the inherent
and continuing conflict between agency programs or missions (including
statutes) and the central goals of restoration (hyroperiod and water
quality restoration). If these
conflicts are not resolved in favor of hydroperiod and water quality
restoration, and narrower agency advocacy of divergent goals is not eliminated,
then Everglades restoration will fail.
The Task Force Report's ambiguous reference to "short-term or
interim management actions which are not immediately consistent with long-term
goals" (pages 5 and 22) has been explained as (and should be properly
understood as) referring to temporary adverse consequences of initial steps in
implementing restoration projects. But
it could be improperly twisted to justify adverse consequences of agency action
which is not in any way an initial step or part of hydroperiod or water quality
restoration. That is, some agencies
directly damage hydroperiod and water quality for their own narrow goals (based
on pre-existing agency missions or their interpretation of existing law).
When individual agency programs or missions conflict with broad
restoration goals, the broad goals should prevail if restoration is to be
achieved. This is a truth which
neither agencies nor the Task Force are yet willing to face. In fact, the substitution of agency programs
or missions over broad restoration goals is precisely the problem which
restoration has unsuccessfully faced for many years and which has contributed
to restoration delays and continued degradation.
Despite the apparent priority of hydroperiod (water levels) restoration
to natural levels and water quality improvements, there are different agency
goals or legal interpretations which conflict with or inhibit natural hydroperiod
restoration. As a logical matter, it is
clear that species which favor the current degraded and disturbed conditions of
the Everglades will be adversely affected, in an immediate short-term sense, by
natural hydroperiod restoration. It
must be remembered that the current disturbed and degraded condition of the
Everglades is "unnatural" because it differs from the historic
natural conditions, which means that the Everglades is a "degraded habitat"
when measured against historic natural conditions. The historic conditions were not favorable to species other than
those species which thrived in such historic natural conditions.
It both logically possible and factually demonstrable that certain species
find the "degraded" habitat to be better for them than the natural
habitat. Therefore, when restoration
occurs, the movement from poor or "degraded" conditions toward
"better" or natural conditions, is considered positive and
progressive when measured against natural restoration standards. But this same positive movement instead
constitutes a movement from good conditions toward poor conditions for any
single species which currently favors the degraded conditions. Therefore, "habitat improvement"
for the natural Everglades is instead "habitat degradation" for a
single invasive species.
Natural restoration can occur only if natural restoration is given the
priority over protection of the degraded habitat which a single species may
favor. The long-term benefits of
restoration must be accepted as superior to the short-term benefits of
maintaining degraded conditions for the benefit of single species.
An outstanding example of such a problem is the current urging of the
U.S. Fish and Wildlife Service (through Biological Opinions under the
Endangered Species Act) to maintain unnaturally low water levels below Tamiami
Trail (in Everglades National Park, south of the S-12 structures) in favor of
the Cape Sable Seaside Sparrow, which favors such an unnatural habitat. This action has the secondary effect of
maintaining unnaturally high water levels north of Tamiami Trail (in Water
Conservation Areas and Miccosukee Tribal lands).
Charts #1 and #2 show that, under the actions sought by USFWS and
proposed by the Corps of Engineers for 2002, water levels below Tamiami Trail
will be lower than the Natural System Model shows would be natural conditions
(the goal for restoration), while water levels north of Tamiami trail would be
higher than the NSM shows would be natural conditions. The charts also show that the C&SF
Project regulation schedule, the water management regime normally in effect
prior to interim actions proposed for the sparrow, were likewise the cause of
unnaturally low water south of Tamiami Trail and unnaturally high water north
of the Trail -- but that the current sparrow actions are worse than the
regulation schedule, that the sparrow actions aggravate the unnatural
conditions. That is, these actions,
proposed and adopted subsequent to the establishment of restoration goals, move
away from restoration rather than toward restoration.
This regression away from restoration highlights the common myths of
Everglades restoration: (1) The Myth of
a Restoration as the Priority (the false belief that everyone seeks restoration
as a common priority); (2) The Myth of
Progress (the assumption that at least we're making progress toward
restoration, that what we're doing is helping); (3) The Myth of Money (the common claim that the main impediment
to restoration is money); (4) The Myth of the General Federal Interest (the
assumption that the federal government represents a general interest in overall
restoration, rather than a narrow special interest; also the Myth of the Park, the federal working premise that
"Everglades" means just "Everglades National Park", not the
larger Florida Everglades to the north); and (5) The Myth of a Shared Vision
(the assumption that everyone seeks a return to natural conditions, rather than
new conditions favorable to their special interest). Until these myths become reality, Everglades restoration will not
and cannot be achieved.