WikiLeaks Document Release http://wikileaks.org/wiki/CRS-RS21331 February 2, 2009 Congressional Research Service Report RS21331 Everglades Restoration: Modified Water Deliveries Project Pervaze A. Sheikh, Resources, Science and Industry Division July 24, 2006 Abstract. The Modified Water Deliveries Project (Mod Waters) is a controversial ecological restoration project in south Florida designed to improve water delivery to Everglades National Park. The implementation schedule of Mod Waters is of interest to Congress partly because its completion is required before the implementation of portions of the Comprehensive Everglades Restoration Plan. Concerns have been raised in hearings on the Administration's FY2007 budget request regarding the cost of implementing the project, project delays, and the U.S. Army Corps of Engineers' role in funding the project. Currently, the project is eight years behind schedule and will cost an estimated $400 million to build. Part of the delay is due to extended efforts to acquire land from private and state owners. Federal agencies have used eminent domain to acquire some lands, a process that has been contentious. Further, funding for the project in Interior appropriations acts (FY2004-FY2006) is being conditioned on the State of Florida meeting water quality standards by reducing excessive phosphorus, among other things. This report provides background on Mod Waters and discusses issues relating to its current status, funding, and land acquisition needs. Order Code RS21331 Updated July 24, 2006 CRS Report for Congress Received through the CRS Web Everglades Restoration: Modified Water Deliveries Project Pervaze A. Sheikh Analyst in Environmental and Natural Resources Policy Resources, Science, and Industry Division Summary http://wikileaks.org/wiki/CRS-RS21331 The Modified Water Deliveries Project (Mod Waters) is a controversial ecological restoration project in south Florida designed to improve water delivery to Everglades National Park. The implementation schedule of Mod Waters is of interest to Congress partly because its completion is required before the implementation of portions of the Comprehensive Everglades Restoration Plan. Concerns have been raised in hearings on the Administration's FY2007 budget request regarding the cost of implementing the project, project delays, and the U.S. Army Corps of Engineers' role in funding the project. Currently, the project is eight years behind schedule and will cost an estimated $400 million to build. Part of the delay is due to extended efforts to acquire land from private and state owners. Federal agencies have used eminent domain to acquire some lands, a process that has been contentious. Further, funding for the project in Interior appropriations acts (FY2004-FY2006) is being conditioned on the State of Florida meeting water quality standards by reducing excessive phosphorus, among other things. This report provides background on Mod Waters and discusses issues relating to its current status, funding, and land acquisition needs. This report will be updated as warranted. Most Recent Developments The Modified Waters Deliveries Project (Mod Waters) is being implemented by the Department of the Interior (DOI) and the U.S. Army Corps of Engineers in southern Florida. (See Figure 1.) For FY2007, the Administration has requested a total of $48 million for the project: $35 million through the Corps and $13.3 million through the DOI. The House-passed Interior and Energy and Water appropriations bills, and the Senate- reported Interior appropriations bill, provide the requested amount of funding for Mod Waters for FY2007. The Senate-reported Energy and Water bill, however, provides no funding for Mod Waters (for the Corps) for FY2007 and limits funds to $35 million for the Corps to construct this project. The Senate Appropriations Committee report on the Energy and Water bill (S.Rept. 109-274) states that Mod Waters should be solely funded by the DOI since it benefits Everglades National Park. Congressional Research Service ~ The Library of Congress CRS-2 DOI and the Corps jointly funded Mod Waters in FY2007. Previously, DOI had solely funded the project. Joint funding of Mod Waters has generated controversy and raised the question of whether the Corps is authorized to receive appropriations to work on the project. The Administration's position appeared to be for the Corps to pay for roughly two-thirds of the remaining $146 million required to complete the project from FY2007 to FY2009.1 For FY2006, $25 million was appropriated to the DOI, and $35 million to the Corps for this project. A provision in the Interior Appropriations Act for FY2006 (P.L. 109-54) conditions funding for Mod Waters on meeting state water quality standards. This provision cites provisions in the FY2004 Interior Appropriations Act, which states that funds appropriated for Mod Waters will be provided unless the Secretary of the Interior, Secretary of the Army, Administrator of the EPA, and Attorney General indicate in a joint report (to be filed annually until December 31, 2006) that water entering the A.R.M. Loxahatchee National Wildlife Refuge and Everglades National Park does not meet state water quality standards, and the House and Senate Committees on Appropriations respond in writing disapproving the further expenditure of funds.2 The FY2007 Administration request did not contain this condition; however, the House-passed Interior Appropriations http://wikileaks.org/wiki/CRS-RS21331 bill and Senate-reported bill both contain this provision. Background The Modified Water Deliveries Project was authorized by the Everglades National Park Protection and Expansion Act of 1989 (P.L. 101-229; 16 U.S.C. §§410r-5, etc.) to improve water deliveries to Everglades National Park (ENP) and, to the extent possible, restore the natural hydrological conditions within the park. The completion of Mod Waters is expected to be significant step towards the implementation of the Comprehensive Everglades Restoration Plan (CERP; Title VI, P.L. 106-541, the Water Resources Development Act of 2000 [WRDA 2000]).3 Indeed, Mod Waters must be completed before appropriations can be made to construct other restoration projects in the east Everglades (§601(b)(2)(D)(iv) of WRDA 2000). Mod Waters is expected to consist of structural modifications and additions to the Central and Southern Florida Project (C&SF Project) to improve the timing, distribution, and quantity of water flow to the Northeast Shark River Slough.4 Increased water flow 1 U.S. Dept. of the Interior, News Release, "FY2006 Interior Budget Emphasizes Commitments, Cooperative Efforts, Performance and Fiscal Restraint," Feb. 7, 2005. Accessed March 14, 2005 at [http://www.doi.gov/news/05_News_Releases/050207a]. 2 For more information, see CRS Report RL32131, Phosphorus Mitigation in the Everglades, by Pervaze Sheikh and Barbara Johnson. 3 For more information Florida Everglades restoration, see CRS Report RS20702, South Florida Ecosystem Restoration and the Comprehensive Ecosystem Restoration Plan, by Nicole Carter. 4 Originally, the Corps was asked to alter water flow in the Everglades to control flooding, open land for agriculture, and provide water supplies to urban areas. The cornerstone of this effort was the Central and Southern Florida Project, which was authorized by the Flood Control Project Act of 1948 (ch. 771, 62 Stat. 1171). This project resulted in nearly 1,000 miles of canals, 720 miles (continued...) CRS-3 to the Northeast Shark River Slough will increase water supplies in the ENP and is expected to improve the natural habitat and hydrology of a portion of the Everglades ecosystem.5 There are four components to Mod Waters: 8.5 SMA flood mitigation, Tamiami Trail modifications,6 conveyance and seepage control features, and Combined Structural and Operational Plan (CSOP). The 8.5 SMA flood mitigation and Tamiami Trail modifications are discussed below. Figure 1. The 8.5 Square Mile Area in Southern Florida http://wikileaks.org/wiki/CRS-RS21331 Source: Adapted from the U.S. Army Corps of Engineers. Mod Waters is expected to flood some residential and agricultural areas adjacent to the park. Legislation authorizing this project instructs the Secretary of the Army to determine if residential and agricultural areas within or adjacent to the 8.5 SMA will be flooded from the hydrological changes of Mod Waters (§104(a)). If these areas are under threat of flooding, the law mandates that a flood protection system must be developed for the area (§104(b)). To prevent flooding, several mitigation features have been developed. One of these features is called Alternative 6D, which is a plan for protecting residents in the 8.5 SMA from flood waters resulting from the project. The purpose of the Tamiami Trail modification is to identify alterations to the highway that would improve water flows for Northeast Shark River Slough and Everglades National Park. A general reevaluation report and environmental impact 4 (...continued) of levees, and more than 200 water control structures (e.g., dikes, dams and pumping stations). 5 For more details, see U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades National Park and South Dade Canals (C-111) Projects accessed on July 20, 2006, at [http://www.saj.usace.army.mil/dp/mwdenp-c111/index.htm]. 6 Tamiami Trail is a highway connecting Miami with the western shore of Florida. CRS-4 statement have been prepared for this project. These reports include a recommended alternative calling for two bridges that would allow water flows to pass across the highway. Construction is expected to begin in 2007. Issues Surrounding the Modified Water Deliveries Project Three issues are being debated about the implementation of Mod Waters, including its estimated funding level, project delays, and the controversy surrounding land acquisition in the 8.5 SMA. Funding. The question of whether the Corps is authorized to fund Mod Waters was an issue during the deliberation over the FY2006 Energy and Water Appropriations. Arguments used to support the proposition that the Corps could be authorized to directly fund Mod Waters cite §102(f) of the Everglades National Park Protection and Expansion Act of 1989 (P.L. 101-229), which is the only section that authorizes funding and authorizes such sums as may be necessary to carry out the provisions of the act. This provision would include §104, which authorizes Mod Waters, though it primarily authorizes activities carried out by the Corps. Arguments used to argue against Corps http://wikileaks.org/wiki/CRS-RS21331 authorization to fund Mod Waters could cite the long history of transfers from the NPS to the Corps, which could be argued to establish a strong precedent for the lack of Corps authority. Due to these conflicting arguments and the lack of clear legislative intent, the authority for the Corps to directly fund Mod Waters might still remain debatable. In the FY2007 Energy and Water Appropriations debate, the Senate Energy and Water Appropriations Committee has not provided funds to the Corps for Mod Waters. Rising project costs for Mod Waters has led some critics to question its viability. The original cost of completing Mod Waters was estimated at $81.3 million in 1990.7 The current estimated cost for completing the project is $398 million.8 To date, approximately $252 million has been appropriated for constructing and implementing Mod Waters, and $146 million more is estimated to be needed to finish the project (i.e., FY2007-FY2009).9 Some contend that changes in the implementation plan, the rising cost of land acquisition, and flood mitigation requirements have led to higher costs.10 This was reflected, according to some, in the changes in the 1992 General Design Memorandum, which were derived from updated modeling data and the project's need to be compatible with CERP. 7 U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades National Park, General Design Memorandum, Jacksonville District, June 1992. 8 U.S. Dept. of the Interior, FY2006 Budget Justification, National Park Service (Washington, DC, 2005). 9 Of the total amount of funds already spent and estimated to complete Mod Waters, approximately $200 million is for land acquisitions and approximately $198 million is for construction, design, and monitoring, among other things. 10 U.S. Dept. Of Interior, Office of Inspector General, Modified Water Deliveries to Everglades National Park, Audit Report, Rept. C-IN-MOA-0006-2005(Washington, DC: March 2006). Hereafter referred to Audit Report. CRS-5 Project Delays. Mod Waters was originally estimated to be completed by 1997, yet now some argue it is unclear as to when or even whether the project will be completed. The FY2006 Administration request indicates that funding will be requested through FY2009. Some contend that delays are due to the undefined roles of DOI and the Corps in implementing the project, a lack of a unified approach to restoration, redesigning the project, and litigation regarding the 8.5 SMA and Tamiami Trail portion of the project.11 Some argue that the delay in implementing Mod Waters jeopardizes implementation of CERP projects, causes further degradation within Everglades National Park, and will set a precedent for delays and deliberation regarding land acquisition activities when CERP projects are being implemented.12 Some proponents of the project contend that ongoing land acquisition in the 8.5 SMA will minimize any future delays. Land Acquisition in the 8.5 Square Mile Area. Implementation of Mod Waters is dependent on acquiring land in the 8.5 SMA. Land acquisition in this area is controversial because there are several unwilling sellers and the Corps is exercising eminent domain in some cases to acquire necessary lands. The 8.5 SMA is a region adjacent to ENP of approximately 5,600 acres. Due to its http://wikileaks.org/wiki/CRS-RS21331 low topography and lack of drainage, parts of the 8.5 SMA frequently flood for several months during the year. With the implementation of Mod Waters, the Corps expects that most of the 8.5 SMA would flood. The Corps developed a flood mitigation plan in 1992 to provide flood mitigation for residents in the 8.5 SMA and allow for the implementation of Mod Waters. However, the 1992 Plan was later deemed "unworkable" by the superintendent of Everglades National Park, who claimed that it would not provide full flood protection for current and future residents in the 8.5 SMA.13 The Corps began to devise a new plan for Mod Waters and the 8.5 SMA in 1999, which considered several alternative plans, including the complete buyout of the 8.5 SMA. A new plan, referred to as Alternative 6D, was proposed by the Corps in 2000. This plan includes a perimeter levee, seepage canal, pump station, and storm water drainage for flood protection in the 8.5 SMA. Instead of a complete buyout of the 8.5 SMA, this plan proposed the acquisition of approximately 2,500 acres in the 8.5 SMA (39% of the total area) and the acquisition of 77 residential tracts (24 tenant-occupied tracts and 53 owner-occupied tracts) in the 8.5 SMA (13% of the total number of "residential areas" in the 8.5 SMA).14 Some residents who were unwilling to sell their land in the 8.5 SMA filed suit against the Corps in 2001. They asserted that the Corps does not have the authority to implement a plan that does not protect the entire 8.5 SMA from flooding, and that the 11 Audit Report. 12 §601(b)(2)(D)(iv) of WRDA 2000 provides that Mod Waters must be completed before appropriations can be made to construct other restoration projects in the east Everglades. 13 U.S. House Resources Subcommittee on National Parks and Lands, Issues Regarding Everglades National Park and Surrounding Areas Impacted by Management of the Everglades, oversight hearing, April 27, 1999, 106th Cong., 1st sess. (Washington, DC: GPO), Serial No. 106- 24. 14 A residential area contains either a fixed home, mobile home, or travel trailer. CRS-6 Corps does not have the authority to exercise eminent domain or spend money to acquire their land through condemnation.15 On July 5, 2002, a district judge restricted the Corps from veering from its original mandate to protect the entire community from flooding, and prevented the Corps from acquiring land in the 8.5 SMA. The Corps later appealed this decision and are now acquiring lands in the area. To help implement Mod Waters, Congress included a provision in the Consolidated Appropriations Resolution for FY2003 (Division F, Title I, §157 of P.L. 108-7) that authorizes the Corps to implement a flood protection plan (Alternative 6D) for the 8.5 SMA as part of Mod Waters. Three conditions are specified in the section authorizing implementation of Alternative 6D: (1) the Corps may acquire residential property needed to carry out Alternative 6D if the owners are first offered comparable property in the 8.5 SMA that will be provided with flood protection; (2) the Corps is authorized to acquire land from willing sellers in the flood-protected portion of the 8.5 SMA to carry out the first condition; and (3) the Corps and the nonfederal sponsor may carry out these provisions with funds provided under the Everglades National Park Protection and Expansion Act of 1989 (P.L. 101-229; 16 U.S.C. §410r-8) and funds provided by the DOI for land acquisition for restoring the Everglades. http://wikileaks.org/wiki/CRS-RS21331 Some critics of land acquisition in the 8.5 SMA base their arguments on the same principles used to criticize the acquisition of the entire 8.5 SMA -- that the federal government should not exercise eminent domain to remove unwilling sellers and that the federal government is obligated to protect all residential areas from floods under P.L. 101- 229. Some critics also argue that there are several unwilling sellers in the area and that if condemnations proceed, delays due to litigation will be inevitable and will eventually harm the ecosystem.16 The Corps asserts that there are several willing sellers in the 8.5 SMA.17 Approximately 78% of the 843 needed tracts have been acquired, and of the remaining 189 tracts, 57% are in negotiations for acquisition and 43% are expected to be condemned.18 15 Garcia vs. United States, No. 01-801-CIV-Moore, slip op. (D.S.D. FL. July 5, 2002). 16 Michael Grunwald, "Dispute Stalls Everglades Project," Washington Post (July 17, 2002): A21. 17 The Corps asserts its power for condemnation is authorized under 40 U.S.C. §257 and 33 U.S.C. §591. This authority is extended to practices of flood control under 33 U.S.C. §701 according to the Corps. Personal communication with Barry Vorse, U.S. Army Corps of Engineers, on Sept. 7, 2002. 18 Dennis Duke, Modified Water Deliveries Update, Presented at the 8.5 Square Mile Public Meeting (Homestead, FL: Dec. 2005).