349

THE EVERGLADES IN JEOPARDY: A DRAMA OF

 WATER MANAGEMENT

 AND ENDANGERED SPECIES

KEITH W. RIZZARDI∗

I. PROLOGUE .......................................................................................................... 350

II. SETTING THE STAGE ........................................................................................... 351

A. Save My Home! Flood Control in the 1940s, 1950s and 1960s.................. 351

B. Save the Earth! Environmental Protection in the 1970s............................ 353

C. Save the Dusky! The Extinction of a Florida Bird in the 1980s ................ 353

D. Save Everything! Water Policy in the 1980s and 1990s ............................. 354

III. THE ACTORS........................................................................................................ 355

A. Creatures of Law ......................................................................................... 355

B. Creatures of Nature..................................................................................... 357

1. The Leading Role: Cape Sable Seaside Sparrows ................................ 357

2. Supporting Actors.................................................................................. 357

C. Creatures of Concrete .................................................................................. 359

IV. THE SCRIPT......................................................................................................... 360

A. The Plot: The Endangered Species Act....................................................... 360

1. Just the Facts: Best Available Science .................................................. 360

2. Do No Harm: Takings ........................................................................... 360

3. Look Before You Leap: Consultation and Conservation....................... 361

4. No Room for Error: Enforcement .......................................................... 363

B. The Subplots: Environmental Restoration and Property Rights ............... 364

1. The Everglades Expansion Act.............................................................. 364

2. Constitutional Law and Inverse Condemnation................................... 364

V. THE PERFORMANCE ............................................................................................ 366

A. Anticipation: Seeking Guidance, but Ruffling Feathers............................. 366

B. Triangulation: Sparrows and Wood Storks and Kites, Oh My!................. 367

C. Desperation: Please, Mr. Secretary?............................................................ 369

D. Preparation: Bracing for Litigation............................................................ 371

E. Resolution: Muddling Through, Still in the Swamp.................................. 373

1. Independently: The Scientific Peer Review Panel ................................. 374

2. Controversially: (Almost) Buying Out Private Lands........................... 374

3. Presently: The 1999 Biological Opinion ................................................ 375

4. Eventually: The Comprehensive Everglades Restoration Plan ............ 377

VI. THE REVIEWS...................................................................................................... 378

A. Poor Execution: Faithfully Implementing Statutory Directives................. 378

1. Remember, Just the Facts: All Best Available Science......................... 379

2. Wouldn’t Be Prudent? Providing Realistic Alternatives....................... 380

B. Fair Treatment: Replacing Command and Control ................................... 381

C. Good Laws: Amending Existing Laws to Expect the Unexpected............... 382

1. More Sense: Exercising Emergency Authority ...................................... 382

2. Less Conflict: Reaching Consensus in the Comprehensive Plan .......... 384

D. Great Debates: Resolving Lingering Policy Problems ................................ 387

 

∗ Keith W. Rizzardi is an attorney for the South Florida Water Management District, practicing environmental law, and is also a certified eco-tour guide. Any opinions in

this Article are exclusively the author’s, and they do not necessarily reflect the views of his

employer. The author thanks Laurie Dietz, Lorelei Cisne, and Kris Hughes, for their editing assistance, and his co-workers at the South Florida Water Management District, for

their advice, assistance and support.
350 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

1. Buy It or Dike It? End the Property Rights Debate............................... 387

2. Who Runs the Flow? Establish the Federal Roles ................................ 388

3. All for One, or One for All? Ask the God Squad ................................... 389

VII. CURTAIN CALLS .................................................................................................. 391

VIII. EPILOGUE ........................................................................................................... 392

APPENDIX............................................................................................................ 394

I. PROLOGUE

The Cape Sable seaside sparrow (CSS sparrow) is just one of

many endangered species in the Everglades.1 Yet ever since the El

Niño weather events of 1997 and 1998, the CSS sparrow has taken

center stage, reaching fame on the front page of The New York Times

as an endangered species in jeopardy of extinction.2 Unfortunately,

the efforts to save the CSS sparrow may be putting Everglades restoration efforts in jeopardy as well.

This case study explores the conflict between water management

in the Everglades ecosystem and the implementation of the Endangered Species Act (ESA). The Everglades National Park (the Park),

the U.S. Army Corps of Engineers (the Corps), and the U.S. Fish and

Wildlife Service (FWS) have made good faith efforts to protect the

CSS sparrow and to comply with the ESA. However, their efforts

may be doing more harm than good. Although there is full recognition of the diversity of wildlife living in the Everglades, a single species—the CSS sparrow—is receiving an inordinate amount of attention. From the recent experiences discussed in this case study, these

agencies, and even the nation, can learn lessons to improve the implementation of water management and endangered species protection laws. Future plans for restoring the Everglades, which will soon

be developed by the United States Congress in the Water Resources

Development Act of 2000, must address the problems of endangered

species protection in the Everglades, especially the CSS sparrow.

Part II of this Article provides a brief history of the development

of the Everglades and its laws; Part III describes the agencies and

 

1. See 50 C.F.R. § 17.11 (1999) (providing a list of all endangered species). The CSS

sparrow, along with the Florida snail kite and the Florida panther, was added in 1967. See

32 Fed. Reg. 4001 (1967). Species added since then include the red-cockaded woodpecker

(see 35 Fed. Reg. 16,047 (1970)), the American crocodile (see 40 Fed. Reg. 44,151 (1975)

and 44 Fed. Reg. 75,076 (1979)), and the wood stork (see 49 Fed. Reg. 7,332 (1984)). See

also Press Release from U.S. Dep’t of Interior, Babbitt Unveils Pivotal Recovery Plan for 68

Species in the Everglades (May 18, 1999), available at <http://www.fws.gov/

r4eao/vbpdfs/nr.pdf> (visited Mar. 4, 2000).

For geographical context, see maps, infra at Appendix.

2. See Little Bird, Big Weapon, Reuters, June 11, 1998, available at <http://

204.202.137.114/sections/science/DailyNews/everglades_sparrow980611.html> (visited

Mar. 4, 2000); James C. McKinley Jr., Tiny Cape Sable Sparrow Is Test of Will to Restore

the Everglades, N.Y. TIMES, June 3, 1999, at A1.
2000] EVERGLADES IN JEOPARDY 351

creatures affected by that law; and Part IV briefly explains the requirements of the environmental laws impacting the Everglades,

particularly the ESA. Part V explores recent events related to the

Everglades restoration, and Part VI considers the lessons that can be

learned from the experience. Finally, Part VII contains the author’s

conclusions on the fate of the CSS sparrow and the importance of upcoming Congressional legislation.

II. SETTING THE STAGE

With millions of people now living in areas that once were wetlands and part of the natural Everglades ecosystem, flood control is

an essential government service in South Florida.3 The lush greenery

and wildlife of the South Florida environment is also a key attraction

for regional residents and has been another concern of the governmental agencies.4

 These two governmental duties—flood control and

environmental protection—have been engaged in a historic conflict.

A. Save My Home! Flood Control in the 1940s, 1950s and 1960s

When the Everglades was free to run its natural course, most of

South Florida was under water, and mosquitoes were uncomfortably

common for explorers and early settlers. The region earned a menacing nickname: “the Never Glade.”5

 As a result, development and

drainage of the region were the primary concerns of many land

speculators and Florida residents throughout the late nineteenth and

early twentieth centuries. 6 Nevertheless, the state’s natural beauty

was recognized. In 1903, President Theodore Roosevelt declared Pelican Island, on the Atlantic Coast, the nation’s first national wildlife

 

3. See NELSON MANFRED BLAKE, LAND INTO WATER—WATER INTO LAND: A HISTORY

OF WATER MANAGEMENT IN FLORIDA at vii-viii (1980). Blake’s book is an excellent historical work on the settlement and alteration of the Florida landscape. For a description of the

history of Florida’s land and water resource management, see LUTHER J. CARTER, THE

FLORIDA EXPERIENCE : LAND AND WATER POLICY IN A GROWTH STATE 52 (1974).

4. For a general discussion of areas of concern to governmental agencies, see BLAKE,

supra note 3, at 196.

5. Id. at 15-16.

6. Since the admission of Florida to statehood in 1845, swamp reclamation has been

an important part of the state’s history. Failed land speculation efforts dominated the late

1800s. William Gleason and Hamilton Disston, for example, were two wealthy investors

who went broke trying to develop inland portions of Florida, while Dr. John Westcott

proved more successful in his effort to create an intracoastal waterway along Florida’s

eastern coastline. In the early 1900s, more successful capitalists such as Barron Collier

and Henry Flagler grew to prominence, while public officials including Governors Napoleon Bonaparte Broward and Albert Gilchrist, and U.S. Senator Duncan Fletcher, promoted policies to drain and develop Florida. Their efforts laid the foundation for the tensions between development and environmental protection in the late twentieth century.

See BLAKE, supra note 3, at 45-48, 94-112.
352 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

refuge.7 Later, in 1947, President Harry Truman, who frequently vacationed in the Florida Keys, created the Park.8

The creation of the Park protected the southernmost part of the

massive Everglades watershed. The watershed runs north to south

across Florida from Lake Okeechobee, in the center of the state, to

Florida Bay, the water body between the mainland peninsula of

Florida and the Florida Keys.9 Ironically, while President Truman

protected part of the Everglades with his action,10 he fundamentally

altered the ecosystem with another. In 1948, with Congressional and

Presidential authorization, the Corps began construction of the Central & Southern Florida Flood Control Project (C&SF Project).11 The

C&SF Project was developed in response to two hurricanes in 1947

that flooded millions of acres of Florida property for over six

months.12 Through the construction of earthen berms, or levees, and

water control structures, the C&SF Project divided the previously

unimpeded “river of grass”13 into an interconnected series of water

conservation areas.

The Corps made important additions to the C&SF Project in the

1960s as part of the South Dade Conveyance System.14 That system

increased flood control and water supply for agricultural landowners

in southwestern Dade County, but it also fundamentally impacted

the Park and the southern Everglades ecosystem. 15 The new flood

 

7. See NATHANIEL P. REED & DENNIS DRABELLE , THE UNITED STATES FISH AND

WILDLIFE SERVICE 7 (1984); U.S. FWS, Pelican Island National Wildlife Refuge (visited

Nov. 1, 1999) <http://www.fws.gov/r4eao/wildlife/nwrplcz1.html>.

8. See Harry S. Truman, Address on Conservation at the Dedication of Everglades

National Park, PUB. PAPERS 505 (Dec. 6, 1947); Deborah Nordeen, South Florida’s Watery

Wilderness Park Nears 50 (last modified Jan. 6, 1999) <http://www.nps.gov/ever/eco/

nordeen.htm>.

9. See Everglades Nat’l Park, Everglades 101: An Introduction to the Ecosystem (last

modified Sept. 9, 1997) <www.nps.gov/ever/eco/ever101.htm>. For a map of the area, see

infra Appendix.

10. Interestingly, Truman even acknowledged the Park’s status as the end of the watershed in his 1947 speech creating the Park, saying “Here is land, tranquil in its quiet

beauty, serving not as the source of water, but as the last receiver of it.” See Nordeen, supra note 8.

11. See Flood Control Act of 1948, Pub. L. No. 80-858, 62 Stat. 1171, 1175 (1948); see

also U.S. ARMY CORPS OF ENG’RS, COMPREHENSIVE REPORT ON CENTRAL & SOUTHERN

FLORIDA FOR FLOOD CONTROL PURPOSES, H.R. DOC. NO. 80-643 (1948); Jacksonville Dist.,

U.S. Army Corps of Eng’rs, Development of the C&SF Project (last modified Oct. 22, 1998)

<http://www.restudy.org/history.htm>.

12. See Stephen S. Light & J. Walter Dineen, Water Control in the Everglades: A Historical Perspective, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION 58-60 (Steve

Davis & John Ogden eds., 1994).

13. MARJORY STONEMAN DOUGLAS, THE EVERGLADES: RIVER OF GRASS 10 (1947) (describing the Everglades as a “thick enormous curving river of grass”).

14. See Flood Control Act of 1968, Pub. L. No. 90-483, § 203, 82 Stat. 731, 740-41

(1968).

15. See Light & Dineen, supra note 12, at 68.
2000] EVERGLADES IN JEOPARDY 353

control system provided the means for agriculture and development

to creep westward, even closer to the heart of the Everglades.16

B. Save the Earth! Environmental Protection in the 1970s

By the late 1960s and 1970s, a new era of environmental concern

began in the United States. 17 State and national leaders adopted new

and important laws such as Florida’s Water Resources Act of 1972,18

the National Environmental Policy Act (NEPA),19 and the ESA.20

Laws such as these were readily applied in the Everglades. In

1968, pursuant to the ESA’s predecessor law, the Endangered Species Preservation Act of 1966, the CSS sparrow and Everglades snail

kite were listed as endangered.21 Critical habitat for the birds was

later designated in the Park and throughout the rest of the Everglades.22 In 1984, the wood stork—with habitat extending throughout

Florida, Georgia, and South Carolina—also was listed as endangered.23 As a result of these listing decisions, species protection would

join flood control as an important aspect of water management in the

Everglades.24

C. Save the Dusky! The Extinction of a Florida Bird in the 1980s

Less than six inches tall and black and white in color, the Dusky

seaside sparrow (Dusky sparrow) was another of the many endangered species living in Florida in the 1980s.25 However, the Dusky

sparrow’s habitat was in an unfortunate location—the coastal

marshes of Florida within NASA’s John F. Kennedy Space Center.26

Although NASA set aside a portion of this land to create the Merritt

Island Wildlife Refuge as a Dusky sparrow habitat, the refuge could

not save the endangered bird.

 

16. See id.

17. See BLAKE, supra note 3, at 195-97; CARTER, supra note 3, at 50-54.

18. Act effective July 1, 1973, ch. 72-299, 1972 Fla. Laws 1126 (establishing water

management districts and permitting programs to protect water resources).

19. Pub. L. No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. §§ 4321-4247

(1994 & Supp. III 1997)) (requiring thoughtful consideration of the environmental impacts

of federal projects).

20. Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-1544

(1994)) (protecting rare species from harm and extinction).

21. See 32 Fed. Reg. 4001 (1967) (codified at 50 C.F.R. § 17.11 (1999)).

22. Habitat for both species was designated in 1977. See 50 C.F.R. § 17.95(b) (1999).

23. See 49 Fed. Reg. 7332 (1984) (codified at 50 C.F.R. § 17.11 (1999)); see also U.S.

FWS, Endangered and Threatened Species of the Southeastern United States: FWS Region

4 (last modified Jan. 1996) <http://www.fws.gov/r9endspp/i/b/sab5z.html>.

24. See Everglades Nat’l Park, Threatened & Endangered Species (last modified Oct.

29, 1999) <http://www.nps.gov/ever/eco/toofew.htm> (listing e ndangered species).

25. See MARK JEROME WALTERS, A SHADOW AND A SONG: THE STRUGGLE TO SAVE AN

ENDANGERED SPECIES 166 (1992).

26. For a map of the sparrow’s habitat, see id. at 1.
354 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

Mosquito control activities, including the construction of freshwater canals, had made the area bearable for humans in the 1950s.27

Unfortunately, human needs conflicted with the needs of the bird.

Large land areas dried out,28 and in 1974 and 1975, fires swept

through critical Dusky sparrow habitat. 29 Other habitats were destroyed by excessive flooding and construction of a new highway connecting the spaceport to Orlando.30 By 1981, no female Dusky sparrows remained.31 Despite a captive cross-breeding program at Walt

Disney World’s Discovery Island,32 the last Dusky sparrow died in

1987.33

D. Save Everything! Water Policy in the 1980s and 1990s

During the 1980s—the same period that the Dusky sparrow was

falling into extinction—the Park began to show the cumulative scars

of the historical modifications to its ecosystem. Shark River Slough

and Taylor Slough, the two dominant open-water pathways in the

Park leading to Florida Bay, had been substantially affected, as comparison with their historical hydropatterns reveals. 34 Routine water

levels had dropped substantially in Taylor Slough and other southeastern areas of the Park,35 although the controlled releases of water

through flood control structures occasionally caused unusually high

deliveries of waters during the dry season.36 These alterations were

impacting Park habitat—as well as the salinity and clarity of the

downstream waters of Florida Bay.37

In recognition of these concerns, the agencies initiated an effort to

balance the flood control needs of landowners with the environmental needs of the Park and Florida Bay. The Park, the Corps, and

the local sponsor for the C&SF Project, the South Florida Water

Management District (Water Management District), obtained Congressional authorization in 1983 to begin an experimental program

 

27. See id. at 31-52.

28. See id.

29. See id. at 102-107.

30. See id. at 82-88, 110-11.

31. See id. at 156-57.

32. See WALTERS, supra note 25, at 160-73.

33. See Richard Hannan, U.S. FWS, A Closer Look at Recovery (visited July 8, 1998) 

<http://www.fws.gov/r9endspp/recover2.html>.

34. See SOUTH FLA. WATER MGMT. DIST., ‘97 EVERGLADES ANNUAL REPORT 32-33

(1997).

35. See THOMAS VAN LENT ET AL., SOUTH FLA. RESEARCH CTR., WATER MANAGEMENT

IN TAYLOR SLOUGH AND EFFECTS ON FLORIDA BAY at v (Report No. SFRC 93-03, 1993).

36. See id. at 12.

37. For a simulated comparison of historical hydrology in the Everglades with current

hydrology in the managed system, see Hydroperiod Comparison for a Low Rainfall Year

1989 (visited July 27, 1998) <http://www.eng.fiu.edu/evrglads/save_enp/sm_hydro.gif>.
2000] EVERGLADES IN JEOPARDY 355

for the delivery of water into the Park, with the goal of restoring the

natural hydrology of the region.38

Although the Experimental Deliveries Program, as it became

known, continued throughout the 1980s and 1990s, it often was

challenged by angry residents. Fearing impacts to water supply and

flood control, regional farmers in southern Dade County initially opposed the program. 39 Residents in western Dade County frequently

expressed similar concerns about the potential impacts of the program on their homes.40 Thus, a balancing act between the needs of

Dade County for flood control and water supply and the environmental needs of the Park dominated water management in Florida

throughout the 1980s and 1990s. The inherent tensions between

these two needs and the disappearance of the Dusky sparrow established the backdrop for the coming interagency conflicts in the Everglades relating to the CSS sparrow.

III. THE ACTORS

A. Creatures of Law

Three federal agencies—FWS, the Park, and the Corps—work

with Everglades issues on a daily basis. Their efforts are occasionally

guided by the advice of a fourth entity: the White House Council on

Environmental Quality (CEQ). Together, these federal organizations

work with many state and local entities in an attempt to meet the

water needs of Everglades species and habitats, as well as the needs

of the humans and their homes in nearby regions.

Congress created FWS to conserve, protect, and enhance fish and

wildlife resources and their habitats for the continuing benefit of the

American people.41 As a result, implementing the ESA is a primary

concern of the agency. Similarly, the Park, which promotes itself as a

subtropical wilderness threatened with extinction, is dedicated to the

protection of its rare and endangered flora and fauna.42 Given the

 

38. See Supplemental Appropriations Act, Pub. L. No. 98-181, § 1302, 97 Stat. 1153,

1292-93 (1983).

39. See, e.g., South Dade Land Corp. v. Sullivan, 853 F. Supp. 404 (S.D. Fla. 1993).

40. See, e.g., Videotape: South Florida Water Management District Governing Board

Meeting (May 11, 1995) (on file with author); see also infra Part III.C.

41. See Fish and Wildlife Act of 1956, ch. 1036, 70 Stat. 1119 (1956) (codified as

amended at 16 U.S.C. §§ 742a-742j (1994 & Supp. IV 1998)); National Wildlife Refuge System Improvement Act of 1997, Pub. L. No. 105-57, 111 Stat. 1252 (1997); see also U.S.

FWS, Homepage (visited June 16, 1999) <http://www.fws.gov>.

42. See 16 U.S.C. § 410c (1994); see also Everglades Nat’l Park, Can the Everglades

Survive? (visited June 16, 1999) <http://www.nps.gov/ever/home.htm>.
356 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

overlapping goals and the fact that both agencies belong to the U.S.

Department of Interior, there is a natural alliance between the two.43

By contrast, the Corps has a broader mission. While the Corps is

concerned with South Florida’s natural resources, it also is responsible for operating numerous flood control structures throughout the

state.44 Those structures include parts of the C&SF Project. Together

with the Water Management District, the Corps must ensure that

the C&SF Project is operated in accordance with numerous federal

laws. These laws reflect not only environmental concerns, but also

flood control, water management and navigation concerns.45 Thus,

the ESA—a critical law for both FWS and the Park—is just one of

many laws affecting the actions of the Corps, and by extension, the

Water Management District.

On rare occasions, when significant policy issues are at stake, the

White House becomes involved, through the CEQ.46 During emergency situations, CEQ plays an especially important role, in accordance with NEPA,47 helping governmental agencies to evaluate the

environmental consequences of their actions.48 However, CEQ is

merely an advisory body, although its regulations are binding,49 and

its recommendations are entitled to substantial deference by the

courts. 50

 

43. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 155 (1978) (stating that Congress in the ESA made it clear that “endangered species are to be accorded the highest priorities”).

44. See Water Resources Development Act of 1992, Pub. L. No. 102-580 § 309(2), 106

Stat. 4797, 4843 (1992); COMPREHENSIVE REPORT ON CENTRAL & SOUTHERN FLORIDA FOR

FLOOD CONTROL PURPOSES, H.R. DOC. NO. 80-643 (1948).

45. See Water Resources Development Act; H.R. Doc. No. 80-643; see also Jacksonville

Dist., U.S. Army Corps of Eng’rs, Jacksonville District Home Page (visited June 16, 1999)

<http://www.saj.usace.army.mil/>.

46. See 42 U.S.C. §§ 4341-4344 (1994) (discussing administrative evaluation of the efforts and coordination of various governmental agencies).

47. See id.

48. See id.; see also Council on Envtl. Quality, Overview of CEQ (visited June 16,

1999) <http://www.whitehouse.gov/CEQ/About.html>; discussion infra Parts III.A, IV.B.1.

49. See Scott C. Whitney, The Role of the President's Council on Environmental Quality in the 1990s and Beyond, 6 J. ENVTL. L. & LIT. 81, 85-87 (1991) (explaining that NEPA

did not give CEQ authority to promulgate binding regulations, although some courts have

treated them as binding under Executive Order 11,991, 42 Fed. Reg. 26,967 (1977), which

attempted to make them so); see also Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421,

424 (5th Cir. 1973) (noting, in an opinion issued prior to Executive Order 11,991, that CEQ

guidelines are merely advisory). But see Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87, 100 n.12 (1983) (“[ W]e do not decide whether [the CEQ

guidelines] have binding effect on an independent agency . . . .”).

50. See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (noting that the CEQ’s statutory interpretations are entitled to great deference); County of Trinity v. Andrus, 438 F.

Supp 1368, 1379-80 (E.D. Cal. 1977) (noting that the scope of judicial review of CEQ action

is limited).
2000] EVERGLADES IN JEOPARDY 357

B. Creatures of Nature

To properly manage the Everglades ecosystem, these agencies

must wrestle with the effects of their actions upon dozens of species.

Unfortunately, many of these species share a common trait—they become jeopardized or adversely impacted when water levels become

too high in the Everglades.

1. The Leading Role: Cape Sable Seaside Sparrows

The CSS sparrow is a small, olive and gray bird with habitat in

the southern portions of Florida, including the Park.51 One of eight

subspecies of seaside sparrows with habitat ranging from Massachusetts to Florida,52 the CSS sparrow has habitat only in the southernmost portions of Florida.53

The CSS sparrows in Florida rely upon vegetative communities

dominated by short, sparse sawgrass and muhly grass without permanent water cover.54 Since the birds nest close to the ground in

these areas, they are particularly vulnerable to changing water levels

and hydropatterns. 55 As a result, their breeding activity declines with

increased surface water depths. 56

Numerous subpopulations of CSS sparrows live in the Park, with

a critical subpopulation located northwest of Shark River Slough.57

Since many of the sparrow populations are threatened by fire, flooding, and vegetative shifts, FWS has focused upon protecting the

western population, which it considers essential to the continued existence of the species. 58 As a result, FWS has focused upon protecting

the western population.

2. Supporting Actors

The CSS sparrow has many other endangered and threatened

friends in the Everglades, including wood storks, snail kites, wading

 

51. See U.S. FWS, MULTI-SPECIES RECOVERY PLAN FOR THE ENDANGERED AND

THREATENED SPECIES OF SOUTH FLORIDA 4-349 to 4-373 (1998) [hereinafter MULTISPECIES RECOVERY PLAN].

52. See id. at 4-350.

53. See id. at 4-350 to 4-353.

54. See U.S. FWS, FINAL BIOLOGICAL OPINION FOR THE U.S. ARMY CORPS OF

ENGINEERS : MODIFIED WATER DELIVERIES TO EVERGLADES NATIONAL PARK,

EXPERIMENTAL WATER DELIVERIES PROGRAM, CANAL 111 PROJECT 23 (Feb. 19, 1999)

[hereinafter 1999 BIOLOGICAL OPINION]; Letter from Noreen K. Clough, U.S. FWS, to A.J.

Salem, Planning Div., Jacksonville Dist., U.S. Army Corps of Eng’rs 9 (Oct. 25, 1995) (regarding Test Iteration 7 of the Experimental Program of Water Deliveries to the Park)

[hereinafter 1995 BIOLOGICAL OPINION] (on file with author).

55. See MULTI-SPECIES RECOVERY PLAN, supra note 51, at 4-360 to 4-362; 1999

BIOLOGICAL OPINION, supra note 54, at 23, 25-27.

56. See 1999 BIOLOGICAL OPINION, supra note 54, at 25.

57. See id. at 26.

58. See id. at 26-27.
358 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

birds, and even crocodiles. All of them are significantly influenced by

water management in the Everglades ecosystem.

Wood storks are large, long-legged, black and white wading birds

with habitat in the Park. They search for food by passing their open

beaks through the water and quickly closing them when they touch

their prey.59 During breeding, water conditions in the nesting habitat

must remain low enough in the dry season to concentrate prey and

support this feeding technique; otherwise, the storks will abandon

their nests in search of improved feeding habitat.60 Thus, like the

CSS sparrow, the wood stork depends upon reduced water levels

within its Everglades habitat.

The eating habits of the snail kite, identifiable by its white-tipped

tail feathers and curved beak,61 are also influenced by water management in the Everglades. A picky eater, the kite has a beak—and

diet—uniquely adapted to the almost exclusive consumption of

freshwater apple snails. 62 The kite, therefore, depends upon habitat

with extensive, shallow open water, where snails can be readily

found.63 Low water levels can dry out the surface, killing the apple

snails; 64 high levels, however, make snails harder to find and can introduce new, densely growing vegetation.65

Severe storms, and accompanying high waters, can damage numerous habitats in the Everglades, subsequently impacting these

birds and many other species. 66 The tree islands in Everglades areas

north of the Park provide habitat for upland wildlife.67 Similarly, the

lower willow heads—which are actually only a few inches lower in

the vast, flat expanse of the Everglades—provide nesting habitat for

wading birds, including the tri-colored heron, the little blue heron,

 

59. See MULTI-SPECIES RECOVERY PLAN, supra note 51, 4-403 to 4-404.

60. See id. at 4-401 to 4-404.

61. See U.S. FWS, Endangered and Threatened Species of the Southeastern United

States: FWS Region 4 (last modified Feb. 1991) <http://www.fws.gov/r9endspp/i/b/

sab0v.html>.

62. See 1999 BIOLOGICAL OPINION, supra note 54, at 36.

63. See id. at 34.

64. See id.

65. See id.

66. See Letter from Bradley J. Hartman, Dir., Fla. Game and Fresh Water Fish

Comm’n, to Jon Moulding, Planning Div., U.S. Army Corps of Eng’rs (Jan. 14, 1998) (regarding current high-water event in Palm Beach, Broward, and Dade Counties) [hereinafter 1998 GFC Letter] (on file with author), reprinted in U.S. ARMY CORPS OF ENG’RS,

DRAFT ENVIRONMENTAL ASSESSMENT: EMERGENCY DEVIATION FROM TEST 7 OF THE

EXPERIMENTAL PROGRAM OF WATER DELIVERIES TO EVERGLADES NATIONAL PARK TO

PROTECT THE CAPE SABLE SEASIDE SPARROW app. A at 15-18 (Jan. 28, 1998) [hereinafter

DRAFT ENVIRONMENTAL ASSESSMENT], available at <http://www.saj.usace.army.mil/h2o/

lib/documents/ea_css/eacss.htm> (visited Mar. 6, 2000).

67. See id.
2000] EVERGLADES IN JEOPARDY 359

and the white ibis.68 All of these wading birds are listed as species of

special concern under Florida law.69

Finally, water management in the Everglades also affects wildlife

along Florida’s coastlines, because waters not flowing through the

Everglades must go somewhere—typically to the ocean through the

C&SF Project canals. However, a series of estuaries that blend fresh

and salt water can be found along Florida’s coastline. These estuaries

require a proper salinity balance to support their complex ecosystems. Large discharges of fresh water from the C&SF Project canals

can impact the salinity balance and the overall quality of the waters,

harming flora and fauna, including rare seagrasses70 and the American crocodile.71

C. Creatures of Concrete

Although critical to the agencies and wildlife, the water management systems and structures in South Florida were created for the

benefit of the region’s human residents. The canals drained water

and allowed people to live in once-flooded lands.72 Roads like Tamiami Trail, built in the 1920s to connect Tampa and Miami, fundamentally altered the flow of water into the Park.73

The region near the Park known as “the 81⁄2 Square Mile Area”

(81⁄2 Square Mile) has proven particularly controversial. During the

1950s, 1960s and 1970s, agricultural and residential developments

appeared adjacent to Shark River Slough, one of the historic watersheds in the southern Everglades. Raising waters in Shark River

Slough can lead to raised water levels in the Area.74 Since residents

and landowners in that region remain unprotected by flood control

systems, they also remain exposed to the occasionally fluctuating water levels from the adjacent Park.75 This looming potential for rain-

 

68. See id.

69. See Florida Game & Fresh Water Fish Comm’n, Florida’s Endangered Species,

Threatened Species, and Species of Special Concern: Official Lists (last modified Aug. 1,

1997) <http://fcn.state.fl.us/gfc/pubs/endanger.html>.

70. See Florida Marine Research Inst., Seagrass Disease (last modified June 23, 1999)

<http://www.fmri.usf.edu/seagrass/disease.htm>.

71. See MULTI-SPECIES RECOVERY PLAN, supra note 51, at 4-10 to 4-13.

72. See COMPREHENSIVE REPORT ON CENTRAL & SOUTHERN FLORIDA FOR FLOOD

CONTROL PURPOSES, H.R. DOC. NO. 80-643 (1948).

73. See BLAKE, supra note 3, at 187.

74. According to the Corps, raising water levels in Shark River Slough increases

groundwater levels, thereby reducing the available water storage in adjacent lands, including the Area. See JACKSONVILLE DIST., U.S. ARMY CORPS OF ENG’RS, MODIFIED WATER

DELIVERIES TO EVERGLADES NATIONAL PARK 41 (1992). Anticipated flood damages from

such increased water levels can include unimproved road deterioration, septic tank damage, damage to potable wells, residential damages, agricultural crop losses, and overall

unacceptable living conditions. See id. at 41-42.

75. See EAST EVERGLADES 8.5 SQUARE MILE AREA STUDY COMMITTEE, A REPORT TO

GOVERNOR LAWTON CHILES 5-7 (1995).
360 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

water to impact private property demonstrates that the Everglades

restoration is about much more than just wildlife.76

IV. THE SCRIPT

Given the number of agencies and species involved, restoring the

Everglades is a difficult task. Achieving restoration, while simultaneously complying with all applicable laws, seems to approach the

impossible.

A. The Plot: The Endangered Species Act

1. Just the Facts: Best Available Science

The ESA is deeply rooted in scientific principles, expressly stating

that the “best scientific and commercial data available” shall be the

basis for determining whether to list a species as endangered.77 This

requirement was recently evaluated and reaffirmed by a federal task

force.78 Thus, despite the frequent claims that the ESA inhibits uses

of private property, FWS properly makes scientific knowledge, and

not property rights or economic considerations, the basis for protecting endangered and threatened species and their ecosystems.

2. Do No Harm: Takings

Once the best available scientific information is used to designate

a species as threatened or endangered,79 section 9 of the ESA prohibits the “taking” of that species. 80 According to the definitions in the

ESA, to “take” means to “harass, harm, pursue, hunt, shoot, wound,

 

76. See, e.g., Stephen Polasky & Holly Doremus, When the Truth Hurts: Endangered

Species Policy on Private Land with Imperfect Information, 35 J. ENVTL. ECON. & MGMT.

22, 24-25 (1998).

77. 16 U.S.C. § 1533(b) (1994). Although the U.S. Supreme Court concluded that economic issues can be considered under the ESA, that decision was limited to the issue of

whether a party had standing to challenge an ESA action based upon economic grounds.

See Bennett v. Spear, 520 U.S. 154, 172 (1997).

78. See NATIONAL RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 4

(1995). Of course, the ESA has its detractors, whose claims include: (1) that the Act protects only high-profile individual species, (2) that the Act lacks thresholds to delineate the

severity of a species condition, (3) that the Act insufficiently protects species populations,

(4) that decisions are made with insufficient documentation, (5) that the Act does not protect sufficient habitat for species once recovered, and (6) that the decisions under the Act

are only made in the face of a crisis. See Daniel J. Rohlf, Six Biological Reasons Why the

Endangered Species Act Doesn’t Work—And What to Do About It, in ENVIRONMENTAL

POLICY AND BIODIVERSITY 181-94 (R. Edward Grumbine ed., 1994). Other critics have emphasized the failures of administrative agencies in their implementation of the Act and inadequate funding by Congress. See Michael O’Connell, Response to “Six Biological Reasons

Why the Endangered Species Act Doesn’t Work—And What to Do About It,” in

ENVIRONMENTAL POLICY AND BIODIVERSITY, supra note 78, at 202.

79. 16 U.S.C. § 1533(b) (1994).

80. Id. § 1538.
2000] EVERGLADES IN JEOPARDY 361

kill, trap, capture, or collect, or to attempt to engage in any such conduct.”81 Regulations define the concept of harm to include harm to

habitat.82 Further exemplifying the controversies created by the ESA,

recent cases have challenged the very constitutionality of these critical provisions. None has succeeded83—yet.

3. Look Before You Leap: Consultation and Conservation

In order to avoid takings and similar harms to species, section 7 of

the ESA requires federal agencies to consult with FWS to ensure

that federal actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the

destruction or adverse modification of habitat.”84 Through the consultation process, FWS may conclude, in a preliminary analysis known

as the biological assessment, that no adverse species impacts will result. 85 However, if the biological assessment concludes that species

impacts may occur, FWS must complete a more thorough analysis,

referred to as a biological opinion, through a process known as formal

consultation.86

After FWS completes its formal consultation, if the biological

opinion concludes that “jeopardy” to the species will occur as a result

of the proposed action, FWS must offer the consulting agency (the

“action agency”) “reasonable and prudent alternatives” to the action.87 If the action may cause adverse impacts or takings of a species, but will not create jeopardy, FWS may authorize a limited number of takings of the species as “incidental” and provide “reasonable

and prudent measures” necessary to minimize those incidental tak-

 

81. Id. § 1532.

82. 50 C.F.R. § 17.2 (1999).

83. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S.

687 (1995), the definition of a taking was challenged by a group of Oregon loggers, which

was prevented from clearing the forest habitat of two listed endangered species, the red

cockaded woodpecker and the spotted owl. The U.S. Supreme Court approved FWS regulations that defined harm and harass to include destroying or adversely impacting the habitat of an endangered species. See id. at 708. Another recent case even went a step beyond

the Sweet Home decision, challenging the constitutionality of the ESA. However, the

United States Court of Appeals for the District of Columbia Circuit ruled that the prevention of species extinction was within Congressional power under the commerce clause. See

National Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997).

84. 16 U.S.C. § 1536(a)(2) (1994).

85. See 50 C.F.R. § 402.12 (1999).

86. See id. § 402.14.

87. Id. § 402.14(h)(3). Interestingly, while federal regulations require reasonable and

prudent alternatives to be provided, they also state that if the FWS “is unable to develop

such alternatives, it will indicate that to the best of its knowledge there are no reasonable

and prudent alternatives.” Id. While this provision would appear to acknowledge that acts

of God and other circumstances may create impossible situations, the regulation does not

resolve the more fundamental question of whether or not the proposed action will be allowed. A reasonable interpretation is that the issue must be referred to the Endangered

Species Committee, as discussed infra in notes 95-96 and accompanying text.
362 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

ings.88 Generally, conformance with the provided alternatives or

measures will be sufficient to provide a safe harbor from liability under the ESA.89

Incidental takings of species can be authorized under the ESA

through a habitat conservation planning process, available to private

landowners through section 10 and to federal agencies through section 7 consultation.90 This planning process looks at an entire region

and develops conditions governing the management of that region for

all species, instead of just a single endangered species. 91 These conditions become part of an “incidental takings” authorization, which can

allow specific, limited impacts to an endangered species.92 Compliance with the authorization generally protects the private landowner

or federal agency from further liability under the ESA.93 While federal agencies are not required to develop formal habitat conservation

plans, the ESA does place upon them an affirmative duty to preserve

and protect species habitat. 94

Recognizing that formal consultation is time-consuming, federal

regulations also provide for an informal process for expedited emergency consultations. 95 During an informal consultation, FWS provides guidance to the affected agencies; however, FWS will return to

formal consultation as soon as the emergency is under control. 96 The

ESA also creates a process for obtaining exemptions in extreme

situations from the Endangered Species Committee.97 The Committee

membership includes, among others, the Secretary of Agriculture,

the Secretary of the Army, the Chairman of the Council of Economic

Advisors, the Administrator of the Environmental Protection Agency,

 

88. 50 C.F.R. § 402.14(i) (1999).

89. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d

1410, 1415 (9th Cir. 1990).

90. See 16 U.S.C. § 1539 (1994); Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed. Reg. 8859 (1998) (codified at 50 C.F.R. pts. 17, 222); U.S. FWS &

NATIONAL MARINE FISHERIES SERVS., ENDANGERED SPECIES HABITAT CONSERVATION

PLANNING HANDBOOK (1996).

91. See 16 U.S.C. § 1539(a)(2)(A) (1994); Division of Endangered Species, U.S. FWS,

Habitat Conservation Planning (visited July 16, 1998) <http://www.fws.gov/r9endspp/hcp/

hcpplan.html>; City of San Diego, Multiple Species Conservation Program Plan (last modified Aug. 1996) <http://www.sannet.gov/mwwd/mscp>.

92. See 16 U.S.C. § 1539(a) (1994).

93. See Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed. Reg. at

8870-71; Amy C. Derry, No Surprises After Winstar: Contractual Certainty and Habitat

Conservation Planning Under the Endangered Species Act, 17 VA. ENVTL. L.J. 357, 367

(1998).

94. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 185 (1978); Pyramid Lake Paiute

Tribe of Indians, 898 F.2d at 1417; Carson-Truckee Water Conservancy Dist. v. Clark, 741

F.2d 257, 262 (9th Cir. 1984); Florida Key Deer v. Stickney, 864 F. Supp. 1222, 1237 (S.D.

Fla. 1994) (all noting the substantive obligations of federal agencies to protect endangered

and threatened species).

95. See 50 C.F.R. § 402.05(a) (1999).

96. See id. § 402.05(b).

97. See 16 U.S.C. § 1536(e) (1994).
2000] EVERGLADES IN JEOPARDY 363

and the Secretary of the Interior.98 This group of public senior officials, sometimes referred to as the “God Squad,”99 was empowered by

Congress to award exemptions from the ESA if:

(i) there are no reasonable and prudent alternatives to the agency

action;

(ii) the benefits of such action clearly outweigh the benefits of alternative courses of action, and such action is in the public interest;

(iii) the action is of regional or national significance; and

(iv) no irretrievable commitment[s] of resources [were made in

violation of the ESA].100

In granting an exemption, the Endangered Species Committee

must also provide “reasonable mitigation and enhancement measures,” such as captive breeding or relocation.101 Obtaining this exemption from section 7’s consultation requirements provides an exemption from section 9’s takings prohibitions as well, 102 and can ultimately lead to the extinction of the species. “God Squad” officials

have therefore rarely met,103 and the mere existence of the committee

has spawned controversy.104

4. No Room for Error: Enforcement

All of these ESA requirements are enforced pursuant to section

11, which creates civil and even criminal liability for “knowingly

violating” any provision of the ESA.105 While criminal actions may

only be pursued by the U.S. Department of Justice, civil cases may be

brought by “any person.”106 For example, environmental organizations interested in species protection may use this citizen suit provision to seek injunctive relief preventing an action.107 Thus, citizens

can challenge both federal and nonfederal actions, based upon al-

 

98. See id. § 1536(e)(3).

99. See Jared des Rosiers, The Exemption Process Under the Endangered Species Act:

How the “God Squad” Works and Why, 66 NOTRE DAME L. REV. 825, 833 (1991); U.S. Pub.

Interest Research Group & Sierra Club, Wildlife Need Wild Places: The State of Disappearing Species and Their Habitat (last modified Jan. 11, 1998)

<http://www.pirg.org/enviro/esa/wildlife/page5.htm>.

100. 16 U.S.C. § 1536(h)(1)(A) (1994).

101. Id. § 1536(h)(1)(B).

102. See id. § 1536(o).

103. See des Rosiers, supra note 99, at 855; see also WILLIAM H. RODGERS,

ENVIRONMENTAL LAW 1015 (2d ed. 1994).

104. See EDF Challenges Exemption Process for Endangered Species, EDF NEWSL.

(Envtl. Defense Fund, New York, N.Y.), Sept. 1979, available at <http://www.edf.org/pubs/

EDF-letter/1979/Sep/d_species.html> (visited Mar. 6, 2000).

105. See 16 U.S.C. § 1540 (1994).

106. Id. § 1540(g).

107. See id. § 1540(g)(1)(A).
364 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

leged violations of the consultation requirements in section 7 or the

takings prohibitions in section 9.108

B. The Subplots: Environmental Restoration and Property Rights

Agencies working in the Everglades must consider numerous laws

in addition to the ESA. The Everglades Expansion Act requires the

Corps to consider whether its actions in the Everglades adversely

impact the 81⁄2 Square Mile. Further, the Takings Clause of the Federal Constitution, and the Florida Constitution as well, creates a

body of “inverse condemnation” law that could require the government to pay landowners for the flooding of private property.

1. The Everglades Expansion Act

Pursuant to federal law, the the 81⁄2 Square Mile and adjacent

lands have specific guidelines for floodplain management. In the Everglades National Park Protection and Expansion Act of 1989,109

Congress authorized the addition of new lands to the Park, moving

its eastern boundary closer to the coast—and closer to the agricultural and residential areas.110 The law was an outgrowth of ongoing

efforts in the region, including a 1983 supplemental appropriations

act that directed the Secretary of the Army to “conduct an experimental program for the delivery of water” to the Park.111

Fearing the potential consequences of the Park’s expansion and

the changes in hydrology, Congress directed the Corps in 1993 to

complete a study of the region to determine whether increasing water levels in the Park would adversely affect the area’s residents.112

Congress authorized the Corps, if adverse effects were found, either

to construct a flood mitigation system or to alter the water deliveries

to avoid the effects.113

2. Constitutional Law and Inverse Condemnation

Perhaps most significantly, the Takings Clause of the U.S. Constitution has implications for water management in the Everglades. If a

government action causes physical taking of a person’s property, an

inverse-condemnation lawsuit can be brought, and the government

 

108. See Defenders of Wildlife v. Lujan, 911 F.2d 117, 121 (8th Cir. 1990); Defenders of

Wildlife v. Administrator, Envtl. Protection Agency, 882 F.2d 1294, 1299-1300 (8th Cir.

1989).

109. Pub. L. No. 101-229, 103 Stat. 1946 (1989) (codified as amended at 16 U.S.C

 §§ 410r-5 to 410r-8 (1994)).

110. See id. § 104, 103 Stat. 1946, 1949 (codified as amended at 16 U.S.C. § 410r-8).

111. Supplemental Appropriations Act, Pub. L. No. 98-181, § 1302, 97 Stat. 1153, 1292-

93 (1983).

112. See 16 U.S.C. § 410r-8(b) (1994).

113. See id. § 410r-8(c), (d).
2000] EVERGLADES IN JEOPARDY 365

agency may be required to pay just compensation and cease the action.114 Under federal law, even a temporary taking of property could

require the government to pay for the rental value of the property for

the duration of the taking.115

The Corps, however, has some immunity for its flood control operations. Flooding resulting from the lawful exercise of federal powers, such as the raising of stream levels to support navigation within

the ordinary high-water mark, may not qualify as an inverse condemnation requiring compensation.116 Furthermore, in some circumstances the flooding of property that results from the operation of a

flood control system may not be a taking, if the relative benefits of

the system for a parcel of property exceed the damage the system

causes to that property.117 Scholars have even suggested that if

flooding results from shutting down a flood-control system, such as

occurs when a dam is removed, it cannot be considered a taking at

all. 118 Nevertheless, water managers in the Everglades must be wary

of these constitutional issues. Even if the Corps is immune from liability, the Water Management District, responsible for operating

and maintaining the system at the local level, may not be.119

 

114. See United States v. Clarke, 445 U.S. 253, 257 (1980); NICHOLS’ LAW OF EMINENT

DOMAIN § 25.41 (Julius L. Sackman ed., 3d ed. 1984).

115. See First English Evangelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304, 319 (1987); Kimball Laundry Co. v. United States, 338 U.S. 1, 7

(1949).

116. See 33 U.S.C. § 702c (1994); United States v. Kansas City Life Ins. Co., 339 U.S.

799, 805 (1950); United States v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S.

592, 595-97 (1941).

117. See United States v. Sponenbarger, 308 U.S. 256, 266-67 (1939); Laughlin v.

United States, 22 Cl. Ct. 85, 114 (Cl. Ct. 1990).

118. See Sharon S. Tisher, Everglades Restoration: A Constitutional Takings Analysis,

10 J. LAND USE & ENVTL. L. 1, 27-29 (1994). According to Tisher, where the government

creates a flood control system for public benefit, and it later concludes that the public benefit land no longer exists, the “reversionary engineering” designed to return the environment and the land to its previous state should not be considered a taking. Id. at 43-44.

119. First, no judicial ruling has been made as to whether the Corps’ immunity applies

to the Water Management District as local sponsor of the federal project. However, this

concept of shared immunity has been broadly recognized by federal courts. See Yearsley v.

W.A. Ross Const. Co., 309 U.S. 18, 20-21 (1940); Portis v. Folk Constr. Co., Inc., 694 F.2d

520, 524 (8th Cir. 1982). Second, even if the Water Management District had federal immunity, it still could remain exposed under Florida law if operation of flood control structures resulted in the flooding of private property. Under the Florida Constitution, an inverse condemnation may exist where flooding occurs and is reasonably expected to continue. See Thompson v. Nassau County, 343 So. 2d 965, 966 (Fla. 1st DCA 1977); Elliot v.

Hernando County, 281 So. 2d 395, 396 (Fla. 2d DCA 1973). Destruction of personal property due to flooding may also require compensation. See Flatt v. City of Brooksville, 368 So.

2d 631, 632 (Fla. 2d DCA 1979). Also, temporary takings claims are becoming increasingly

common. See Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So. 2d

54, 58 (Fla. 1994); Associates of Meadow Lake, Inc. v. City of Edgewater, 706 So. 2d 50, 52

(Fla. 5th DCA 1998).

Recently, a Florida court even ruled that a temporary, non-recurring flooding of a le ttuce

farm due to Water Management District flood control operations constituted a taking, requiring payment for personal property destroyed by the event. In Basore of Florida, Inc. v.
366 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

The Everglades Expansion Act, as discussed above, further complicates application of the takings clause.120 And of course, if an inverse condemnation claim succeeds, establishing a violation of constitutional principles, sovereign immunity would not apply, and compensation for the taking would be due to the landowner.121

Finally, impacting private property also has potential nonmonetary consequences for federal agencies. Knowingly exposing the

federal government to financial obligations for a taking can be construed as a violation of the Anti-Deficiency Act. 122 That law makes it

illegal for a federal governmental official to involve an agency in an

obligation to pay money exceeding Congressional appropriations. 123

Although the law is generally applied to contractual obligations, the

predecessor statute to the Anti-Deficiency Act was construed to apply

to condemnation awards as well. 124 Exposing a federal agency to condemnation claims, without having ensured the availability of funding, could ultimately result in criminal penalties for the federal employee.125

V. THE PERFORMANCE

A. Anticipation: Seeking Guidance, but Ruffling Feathers

In the summer of 1997, the Corps, in conjunction with the Water

Management District, attempted to convene a special workshop for

eight regional bird experts to develop alternatives for avoiding future

conflicts between the Experimental Deliveries Program, restoration

construction, and threatened and endangered species. 126 Already, the

Corps had expressed frustrations with its inability to complete some

of its restoration work in the Everglades because of ESA considera-

 

South Florida Water Management District, No. 94-2334 AE (Fla. 11th Cir. Ct. Oct. 8, 1997),

the trial court ruled that the Water Management District was liable for an inverse condemnation and had taken personal property because its management of the flood control

systems permitted an extended flooding of Basore’s lettuce crop. That decision was later

reversed, see 723 So. 2d 287 (Fla. 4th DCA 1998), and review was denied by the Florida

Supreme Court, 740 So. 2d 527 (Fla. 1999). Although the appellate court exonerating the

Water Management District from takings liability, noting that the flooding was an accidental and temporary result of a 1-in-50-year storm event, the case demonstrates the

challenges that inverse condemnation laws can create for flood control agencies in Florida.

120. See supra Part III.B.1.

121. See Monogahela Navigation Co. v. United States, 148 U.S. 312, 336 (1893); Turner

v. United States, 17 Cl. Ct. 832, 834 (Cl. Ct. 1989).

122. See 31 U.S.C. § 1341 (1994).

123. See id. § 1341(a)(1).

124. See 54 Comp. Gen. 799 (1975).

125. See 31 U.S.C. § 1350 (1994).

126. See Letter from Craig Johnson, Supervisor, South Fla. Ecosystem Restoration,

U.S. FWS, to Col. Terrence Rice, Jacksonville Dist. Eng’r, U.S. Army Corps of Eng’rs (July

11, 1997) (on file with author); Listed Species Workshop Draft Agenda Outline (Aug. 5-6,

1997) (on file with author).
2000] EVERGLADES IN JEOPARDY 367

tions, such as concerns for nesting wood storks and snail kites. 127 The

workshop was intended to address the impact of the predicted 1997-

1998 El Niño event upon the CSS sparrow and other endangered Everglades species.

FWS objected to the effort. In a letter, the agency said it would not

“subsume [its] authorities or mandates” to an interagency workshop.

The agency added “[We] resent the suggestion that we need a workshop to develop a way to avoid future conflicts between restoration

projects and threatened or endangered species.”128 Instead, FWS said,

any ESA conflicts that arose were a product of actions by the Corps:

[W]e have to demand certainty for the species that are on the

brink of extinction . . . if you change a project in a way that eliminates protection for a threatened or endangered species, after

agreeing to protective conditions or restrictions, you should not

blame listed species for creating a “conflict” with the project.129

As a result of the FWS letter, the workshop was cancelled and replaced by a FWS promise to independently work with the Corps as

necessary.130

B. Triangulation: Sparrows and Wood Storks and Kites, Oh My!

By December 1997, the effects of El Niño upon the Everglades

were becoming apparent. El Niño was causing excessive rain events,

and waters flowing through the Everglades and into the Park were

significantly above normal.131

Given the conditions, the Corps was busy. While many of the water management structures throughout the Everglades and the

C&SF Project are operated and maintained by the Water Management District, a few critical structures remained in the control of the

Corps. 132 Among those structures were four structures built along

Tamiami Trail. The structures, known as the S-12A, S-12B, S-12C

and S-12D structures, are gated structures that operate akin to a

 

127. See Cyril T. Zaneski, Conflict in the Glades: Scientists, Engineers at Odds over

Restoration, MIAMI HERALD, Jan. 4, 1998, at L1.

128. Letter from Johnson, supra note 126, at 2-3.

129. Id. at 3.

130. See id.

131. See SOUTH FLA. WATER MGMT. DIST., SURFACE WATER CONDITIONS REPORT (Dec.

1997 and Jan. 1998); Florida Div. of Emergency Mgmt., El Niño Weather Events: Situation

Report No. 16 (Mar. 9, 1998), available at <http://www.dca.state.fl.us/fdem/DEM/EOC/

SITREPS/sr16.htm> (visited Mar. 6, 2000).

132. See Miccosukee Tribe of Indians of Fla. v. South Fla. Water Management Dist.,

721 So. 2d 389, 390 (Fla. 3d DCA 1998) (distinguishing structures operated, maintained

and controlled by the Corps and Water Management District); Bruce Tappmeyer, Jackso nville Dist., U.S. Army Corps of Eng’rs, Flood Control Structures (last modified June 23,

1999) <http://www.saj.usace.army.mil/conops/structures/fl-nav.htm>.
368 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

guillotine and allow water to pass under the open gap when lifted.133

Typically, the Corps operates the structures using a series of regulation schedules that set forth ideal operating conditions. According to

the regulation schedules, El Niño conditions required the structures

to open and drain water southward to the Park.134

Unfortunately, opening the S-12 structures would send largerthan-usual amounts of water into the Park during the otherwise dry

winter season and would threaten the breeding habitat of the western CSS sparrow populations just south of the structures. On December 24, 1997, FWS and the Park reacted with a warning letter to

the Corps:

At this time, continued regulatory releases would exacerbate the

current flood conditions and would likely preclude the possibility of

a successful 1998 nesting season. . . . [F]aced with the sixth consecutive nesting season with little to no breeding by birds in the

western core population, the Cape Sable seaside sparrow faces extinction. The western population of the Cape Sable seaside sparrow faces local extirpation, with extirpation of the western population comes an elevated and, in the opinion of [FWS and the Park],

an unacceptable risk of extinction.

. . . .

[FWS and the Park] cannot concur with actions that increase the

risk of an unsuccessful nesting season . . . . We support actions

that distribute consequences equally among all C&SF Project [water conservation areas].135

In response to the letter, the Corps kept the four S-12 structures

closed.136 The consequences were predictable. Water levels were already high in the water conservation areas north of the Park’s

boundaries, which include the important tree islands and lower willow heads. Closing the S-12 structures turned Tamiami Trail into a

dam across the Everglades. By trying to protect the CSS sparrow, the

Corps created new problems.

In January 1998, the Florida Game and Fresh Water Fish Commission sent a letter to the Corps complaining about the adverse impacts of the high water levels upon the habitat of the other Ever-

 

133. See Milbra A. Billings, South Fla. Water Mgmt. Dist., Structures 12A, B, C, and D

(n.d.) (on file with author).

134. See Interview with Tommy Strowd, Dir. of Operations, South Fla. Water Mgmt.

Dist. (July 7, 1999).

135. Letter from Stephen W. Forsythe, State Supervisor, U.S. FWS, & Richard G.

Ring, Superintendent, Everglades Nat’l Park, to Col. Joe Miller, Dist. Commander, U.S.

Army Corps of Eng’rs (Dec. 24, 1997), in DRAFT ENVIRONMENTAL ASSESSMENT, supra note

66, app. A at 10, 11-12.

136. More precisely, the structures were kept in their current position, with the western S-12 A and B structures fully closed, and the eastern S-12 C and D structures open

only to a minimal degree. See Interview with Strowd, supra note 134.
2000] EVERGLADES IN JEOPARDY 369

glades wading birds.137 FWS agreed, sending a similar letter to the

Corps, alleging that the high water levels would adversely impact the

endangered wood stork and snail kite.138 The letter also noted that

moving those waters to the east coast canals and eventually into the

downstream estuaries would adversely affect the vegetation and fish

along the coastline.139

We have never recommended actions that protect the endangered

Cape Sable seaside sparrow at the expense of other portions of the

historic Everglades ecosystem. Despite suggestions to the contrary,

we have consistently maintained that all beneficiaries of the C&SF

project, including private lands, should share the adversity created

by high water levels in South Florida. We believe your agency currently has options to share the adversity that are not being used,

such as using the S-333 structure to deliver flows to northeast

Shark River Slough.140

While FWS was taking appropriate measures to meet its duty of

protecting wildlife, this “option” of sending waters into Shark River

Slough through the S-333 structure came with another potential consequence: flooding private property. The S-333 structure is a small

structure located east of the S-12 series structures, atop the northeast Shark River Slough. Raising waters in that Slough could impact

the landowners in the 81⁄2 Square Mile Area downstream. It was an

option the Corps, given its flood control responsibilities and respect

for property rights laws, was reluctant to pursue.

C. Desperation: Please, Mr. Secretary?

As a result of El Niño and the letters from the Florida Game &

Fresh Water Fish Commission and FWS, the Corps considered itself

faced with emergency circumstances. Recognizing that the emergency required the Corps to deviate from the previously approved

version of the Experimental Deliveries Program, the Corps began

preparing an emergency environmental assessment in accordance

with NEPA.141 The Corps even knocked a 1,000-foot gap in a levee

north of the Park, allowing the diversion of waters around the CSS

sparrow habitat. Creation of the gap proved extremely sensitive and

difficult due to its proximity to the site of the tragic ValueJet air-

 

137. See 1998 GFC Letter, supra note 66; see also Effort to Save Sparrow Imperils

Other Wildlife, PALM BCH. POST, Jan. 30, 1998, at A13; Robert P. King, Plan to Save Sparrows Could Hurt Other Everglades Wildlife, PALM BCH. POST, Jan. 7, 1998, at B3.

138. See Letter from Stephen W. Forsythe, State Supervisor, U.S. FWS, to Col. Joe

Miller, Dist. Commander, U.S. Army Corps of Eng’rs (Jan. 15, 1998) (on file with author);

Martha Musgrove, Restoring the Everglades Generates Tough Trade-Offs, MIAMI HERALD,

Jan. 21, 1998, at A11.

139. See Letter from Forsythe, supra note 138.

140. Id.

141. See DRAFT ENVIRONMENTAL ASSESSMENT, supra note 66.
370 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

plane crash of 1996.142 But the very fact that the Corps was willing to

undertake such a difficult effort proved its determination to find solutions. Still, the diversion was relatively small and hardly sufficient

to end the threat to the CSS sparrow or the flooding of the water conservation areas north of the Park. The informal dialogue between the

Corps and FWS continued.143

While the Corps continued to debate alternatives with FWS, the

Water Management District became increasingly concerned. As the

operator of the federal C&SF Project, required to follow the instructions of the Corps, the Water Management District began to worry

about its own potential for ESA liability. To clarify the requirements

of the ESA and obtain additional guidance regarding its responsibilities, the Water Management District sent a letter to U.S. Department of the Interior Secretary Bruce Babbitt.

The Water Management District’s January 28, 1998, letter cited

the concerns shared by all federal and state agencies for the endangered CSS sparrow and explained the emergency actions being taken

on its behalf.144 But the Water Management District also set forth the

potential consequences of the emergency measures, such as flooding

private lands. A worst-case scenario projected that accumulating water levels in the Everglades could cause “wave action” in the typically

slow-moving Everglades, compromising the structural integrity of

the levee system and potentially causing catastrophic flooding of areas of the Everglades and western portions of South Florida near the

Everglades levees.145

The letter to Secretary Babbitt also framed the legal constraints

which faced the Corps and, by extension, the Water Management

District, by asking some difficult questions:

Can an alternative which causes a constitutional taking of private

property be reasonable and prudent under the ESA? Can an alternative which violates other congressional authorizations be reasonable and prudent?146

The questions would never be directly answered.147

 

142. See Briefly, PALM BCH. POST, Jan. 1, 1998, at B2.

143. See Interview with Strowd, supra note 134.

144. See Letter from Samuel E. Poole III, Exec. Dir., South Fla. Water Mgmt. Dist., to

Bruce Babbitt, Sec’y, U.S. Dep’t of Interior (Jan. 28, 1998) (regarding the CSS sparrow and

compliance with the ESA) (on file with author).

145. See id. at app. A.

146. Id. at app. B.

147. Instead, FWS sent a letter explaining that “in some cases, no alternatives are

available to preclude a jeopardy determination.” Letter from Stephen W. Forsythe, State

Supervisor, U.S. FWS, to Samuel E. Poole III, Exec. Dir., South Fla. Water Mgmt. Dist.

(Mar. 27, 1998) (regarding the CSS sparrow and compliance with the ESA) (on file with

author).
2000] EVERGLADES IN JEOPARDY 371

On the same day that the Water Management District sent the

letter to Secretary Babbitt, the Corps completed its draft emergency

environmental assessment. 148 That document, prepared in accordance

with the emergency provisions of NEPA and sent to the CEQ, evaluated the problems and alternatives, concluding that “no good alternative was available, and that every alternative was likely to have a

significant impact on property or natural resources.”149

D. Preparation: Bracing for Litigation

Not surprisingly, the plight of the CSS sparrow and other Everglades wildlife caught the attention of many public interest groups.

Litigation appeared inevitable. Citing concern for the CSS sparrow,

the Natural Resources Defense Council and the Biodiversity Legal

Foundation each filed notice of intent to sue on behalf of the endangered CSS sparrow, alleging violations of the section 9 takings prohibitions in the ESA.150

Meanwhile, the Miccosukee Tribe of Indians of Florida (the Tribe)

provided the most tangible proof of the no-win scenario that El Niño

had created. Concerned about the impact the high waters in the

northern Everglades were having upon lands historically used for

cultural and religious practices,151 the Tribe notified CEQ of its concerns.152 That notice was accompanied by the Tribe’s notice of intent

to sue on behalf of the endangered wood storks and snail kites that

shared lands with the Tribe.153 In addition, the Tribe was supported

by a distinguished ornithologist who fundamentally disagreed with

the Department of Interior biologist over whether the CSS sparrow

was in jeopardy of extinction.154

 

148. See DRAFT ENVIRONMENTAL ASSESSMENT, supra note 66.

149. Id. at 4.

150. See Letter from John H. Adams, Exec. Dir., National Resources Defense Council,

to Bruce Babbitt, Sec’y, U.S. Dep’t of Interior (Feb. 13, 1998) (regarding the emergency

with the CSS sparrow) (on file with author); Letter from Sidney B. Maddock, Envtl. Analyst & Att’y, Biodiversity Legal Found., to Togo D. West, Jr., Sec’y of the Army, et al. (Apr.

7, 1998) (giving 60-day notice of intent to sue regarding violations of the ESA) (on file with

author).

151. See Robert P. King, El Niño Rains Creating Everglades Mess, PALM BCH. POST,

Feb. 22, 1998, at 1A.

152. See Letter from Dione C. Carroll, Att’y for the Miccosukee Tribe of Indians, to

Council on Envtl. Quality (Feb. 12, 1998) (on file with author).

153. See Letter from Dexter W. Lehtinen, Att’y for the Miccosukee Tribe of Indians, to

Bruce Babbitt, Sec’y, U.S. Dep’t of Interior (Mar. 16, 1998) (giving notice of intent to sue

under the ESA) (on file with author).

154. See William Post, Biology of the Seaside Sparrow in the Everglades Region of

Florida (n.d.) (white paper submitted to the independent review panel convened by the Science Coordination Team of the South Florida Ecosystem Restoration Task Force, on file

with the author). A copy of Dr. Post’s paper is also available for download from

<http://www.sfrestore.org/sct/sparrow/sparrow.htm> (visited Mar. 6, 2000) (MS Word and

WordPerfect formats).
372 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

The letters from the third parties foreshadowed legal troubles for

the Corps, but two letters from FWS were equally serious. FWS notified the Corps that opening the S-333 structure, which would deliver

waters into Shark River Slough, was “an essential step” under the

section 7 ESA consultation process. 155 On April 7, 1998, when the

Corps again rejected FWS’s advice, FWS responded to the Corps’ refusals:

[T]he Corps has not implemented any of the actions recommended

by [FWS] to reduce adverse impacts to listed species resulting from

the Corps’ emergency actions. When, during an emergency consultation under section 7 of the ESA, an action agency (the Corps in

this case) does not implement [FWS]’s recommended measures for

minimizing adverse effects of emergency actions, or partially implements [FWS]’s recommended measures, [FWS] is obliged to advise the action agency that any take resulting from such incomplete implementation does not meet the requirements for exemption from the taking provisions of Section 9 of the ESA. We believe

such advice is pertinent to the sparrow situation.156

Actually, the Corps had already implemented at least one recommended action through a cooperative agreement regarding the South

Dade Conveyance System.157 The agreement, signed by the Corps,

FWS, the Water Management District, and the Park, established

new emergency operational schedules for the structures in the area

and allowed more water to be sent away from the CSS sparrow towards the Atlantic coastline.158 The agreement also specifically acknowledged that the actions were consistent with the ESA.159 Nevertheless, the April 7, 1998, letter clearly established that FWS believed more measures were necessary to protect endangered species—even if those measures meant the flooding of private property.

 

155. Letter from Stephen W. Forsythe, State Supervisor, U.S. FWS, to Col. Joe Miller,

Jacksonville Dist. Commander, U.S. Army Corps of Eng’rs (Mar. 24, 1998) (regarding

emergency section 7 consultation for the CSS sparrow) (on file with author).

156. Letter from Stephen W. Forsythe, State Supervisor, U.S. FWS, to Col. Joe Miller,

Jacksonville Dist. Commander, U.S. Army Corps of Eng’rs (Apr. 7, 1998) (on file with

author) (emphasis added). In response to the two letters to Secretary Babbitt, a similar letter was sent to the Water Management District, which stated:

[T]o the extent that the action agency implements those [agreed upon] measures in its response to the emergency, the requirements for exemption from the

taking provisions of Section 9 have been met. Any take resulting from incomplete compliance with measures provided by the Service is not covered by the

exemption.

Letter from Forsythe, supra note 147.

157. See COOPERATIVE AGREEMENT BETWEEN SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, U.S. ARMY CORPS OF ENGINEERS , UNITED STATES FISH AND WILDLIFE SERVICE,

AND EVERGLADES NATIONAL PARK (1998).

158. See id. at 1.

159. See id.
2000] EVERGLADES IN JEOPARDY 373

As painful as the situation was for the Corps, it was about to get

worse.

In April 1998, a potent microorganism, known as cryptoperidiniopsis, or crypto, which breaks down the mucus membrane coating

fish, was discovered in the coastal estuaries of southeast Florida.160

The emergence of the organism was attributed to massive discharges

of high-nutrient waters away from the Everglades and the CSS sparrow.161 During the coming weeks, hundreds of fish were discovered

dead or dying from lesions, and the local fishing and tourist economies, especially at the mouth of the St. Lucie River, were significantly affected.162

In a special public hearing held that month to address the concerns of St. Lucie area residents, Corps and Water Management District officials attempted to explain the difficulties of operating the

C&SF Project. 163 At the meeting, the FWS representative made an

even stronger push for the protection of the CSS sparrow, telling the

Corps:

[W]e believe that the adversity should have been better shared . .

. . [W]e believe that there were other options for the water, such as

the Everglades Agricultural Area and the 81⁄2 Square Mile Area.164

It seemed once again that FWS was supporting the flooding of private property in order to save the CSS sparrow. Notably, that position was also supported by dozens of cheering residents attending the

meeting.165

E. Resolution: Muddling Through, Still in the Swamp

When the unusually wet winter months of 1997-1998 finally

passed, Lake Okeechobee levels dropped, releases to the coastal estuaries ended, and the Corps avoided impacts to the the 81⁄2 Square

Mile.166 Mother Nature granted the agencies a reprieve. But El Niño’s

passage did not mark the end of the CSS sparrow’s problems.

 

160. See Chuck McGinness, Growing Fish Kill Blamed on Tiny Algae, PALM BCH. POST,

Mar. 20, 1998, at A1; Mark Pollio, Scientists Find Lesions’ Source, FT. PIERCE/PORT ST.

LUCIE TRIB., Apr. 5, 1998, available at <http://www.portsaintlucie.com/news/1998/0405/

story4.htm> (visited Mar. 6, 2000).

161. See sources cited supra note 160.

162. See Pollio, supra note 160.

163. See Glenn Henderson, Endangered Bird, Officials, Wind Up Losers, PALM BCH.

POST, Apr. 12, 1998, at B1.

164. Videotape: Martin County Administration Town Meeting: Healthy Rivers Forum

(South Fla. Water Mgmt. Dist. Media Services, Video No. 712, 1998) (on file with author).

165. See id.; Interview with Strowd, supra note 134.

166. See Robert P. King, South Florida Flood Woes Drying Up , PALM BCH. POST, Apr.

15, 1998, at B1.
374 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

1. Independently: The Scientific Peer Review Panel

By January 1999, FWS and the Park were again writing letters to

the Corps warning of the plight of the CSS sparrow.167 This time, the

agencies cooperated with each other, convening an independent scientific panel of experts, with the assistance of the American Ornithological Union, to review the status of the CSS sparrow.168 In a final report, the panel agreed with FWS that there was significant

cause for concern.169 CSS sparrow populations, they said, were falling

because of water management practices and declining habitat.170 On

the other hand, the panel also acknowledged the problems of estimating CSS sparrow populations171 and concluded that the long-term

Everglades restoration strategies, including restoring natural flows

to Shark River Slough, would successfully reduce the CSS sparrow’s

risk of extinction.172

2. Controversially: (Almost) Buying Out Private Lands

The scientific committee’s recommendations did not address the

controversial policy questions of how increased waters would reach

Shark River Slough and how they might impact the residents of the

81⁄2 Square Mile. Instead, those issues were tackled by the governing

board of the Water Management District, which voted for full acquisition of the region in November 1998.173 The decision represented a

modification of the recommendations made to Florida Governor

Lawton Chiles in a 1995 report, which called for a flow way in the

westernmost region, while providing flood protection for the remainder of the 81⁄2 Square Mile.174

Two months after the governing board’s decision, the Miccosukee

Tribe filed suit against the Water Management District alleging that

 

167. See Letter from Richard G. Ring, Superintendent, Everglades Nat’l Park & Stephen W. Forsythe, State Supervisor, U.S. FWS, to Col. Joe R. Miller, Jacksonville Dist.

Eng’r, U.S. Army Corps of Eng’rs (Jan. 14, 1999) (on file with author).

168. See Science Coordination Team, South Fla. Ecosystem Restoration Task Force,

Cape Sable Seaside Sparrow Review/Workshop (visited Sept. 27, 1999) <http://

www.sfrestore.org/sct/sparrow/0csssann.htm>.

169. See Jeffrey R. Walters et al., Cape Sable Seaside Sparrow Panel Review: Final

Report (n.d.), available at <http://everglades.fiu.edu/BRD/progress_reports/sparrow/

sparrow2.pdf> (visited Mar. 6, 2000) [hereinafter Sparrow Panel Report].

170. See id. at 59.

171. In particular, the panel noted the need for better methods to count female birds,

because reliance upon singing male birds was problematic. See id. at 21.

172. See id. at 47-48.

173. See Governing Bd., South Fla. Water Mgmt. Dist., minutes of a workshop/meeting

at 1 (Nov. 12, 1998) (on file with author). For a view from an area landowner, see

Madeleine Fortin, Pariah, Florida (visited Mar. 6, 2000) <http://www.sfaa.net/eap/fortin/

fortin.html>.

174. See EAST EVERGLADES 8.5 SQUARE MILE AREA STUDY COMMITTEE, supra note 75.
2000] EVERGLADES IN JEOPARDY 375

a staff subcommittee made the decision,175 violating Florida’s Government in the Sunshine Law.176 In June 1999, seven months after

the governing board had voted for acquisition, a new governing board

appointed by Governor Jeb Bush voted to review the decision as part

of a settlement agreement with the Miccosukee Tribe.177 The previous

decision was vacated, and a decision whether or not to purchase the

81⁄2 Square Mile will be made—again—only after the Corps completes

a new Environmental Impact Statement, analyzing all the options in

the region.178

3. Presently: The 1999 Biological Opinion

For the Corps, delays in the acquisition effort simply meant that

problems would continue. In January 1999, the Department of Interior agencies were writing the Corps to “stress the urgency of action

needed to assure a successful 1999 breeding season” for the CSS

sparrow.179 One month later, FWS issued a final biological opinion on

the Corps’ water management programs in the Park, concluding that

current water management efforts, including the Experimental Deliveries Program, were causing jeopardy to the sparrow180 and adverse impacts to wood storks and snail kites. 181 However, FWS provided a single “reasonable and prudent” alternative—to increase

flows to Shark River Slough by May 1, 1999,182 and to fully implement by December 2003 a modified water deliveries project that

would deliver significantly greater flows into Shark River Slough.183

When compared to the previous differences of opinion between the

Corps and FWS during the El Niño storms, the new, phased approach in the biological opinion represented progress toward a solution. Nevertheless, the Corps concluded that it had neither the

authority nor the budgetary appropriations to implement the FWS

 

175. See Complaint for Declaratory and Injunctive Relief, Miccosukee Tribe of Indians

of Fla. v. South Fla. Water Mgmt. Dist. (Fla. 11th Cir. Ct. 1999) (No. 99-03243 CA 01);

Robert P. King, Water Managers May Cancel Buyout Plan , PALM BCH. POST, June 12,

1999, at B1.

176. FLA. STAT. § 286.011 (1997).

177. See 81⁄2-Square Mile Redux, MIAMI HERALD, June 21, 1999, at A10.

178. See Press Release from South Fla. Water Mgmt. Dist., Board Settles ‘Sunshine’

Lawsuit in Vote to Buy Out 8.5 Square Mile Area (June 23, 1999), available at

<http://141.232.1.11/newsr/11_newsrel.html> (visited Mar. 19, 2000). But cf. Terry L. Rice,

Bypass, Not Buyout, Will Save the Everglades, MIAMI HERALD, June 22, 1999, at A9.

179. Letter from Ring & Forsythe, supra note 167.

180. See 1999 BIOLOGICAL OPINION, supra note 54, at 2-3.

181. See id.

182. See Letter from Edward E. Middleton, Chief, Eng’g Div., Jacksonville Dist., U.S.

Army Corps of Eng’rs, to Jeanne K. Hall, Dir., Operations and Maintenance Dep’t, South

Fla. Water Mgmt. Dist. (Mar. 12, 1999) (describing the Shark River Slough water delivery

system) (on file with author).

183. See id.
376 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

proposal. 184 Rather than renewing negotiations or risking ESA liability by continuing the existing experimental deliveries program, the

Corps announced emergency water management actions to save the

CSS sparrow.185 Even though it was designed to increase water deliveries throughout the Park and simulate natural hydropatterns, the

experimental deliveries program needed to be changed.186 Instead,

based upon emergency authority,187 the Corps developed a program

focused upon bringing water levels down in CSS sparrow habitat.188

Within days of the Corps’ decision to change the Experimental

Deliveries Program, the Superintendent of the Park sent a new letter

warning that the new actions were insufficient for the CSS sparrow

and would adversely affect wood storks and wading birds. 189 FWS officials also rejected the Corps proposed actions, stating that the actions could have been implemented more than three years earlier

and therefore could not be considered an emergency.190 Instead, FWS

argued, the Corps was required to engage in “formal consultation”

with the agency before implementing the new changes.191

The Corps implemented the new operational program over the

objections of FWS and the Park,192 although Corps officials frequently

use the operational guidelines of the Experimental Deliveries Program.193 Thus far, the Corps actions have successfully protected crucial CSS sparrow habitat. 194 But the fate of the CSS sparrow, and the

other creatures in the Everglades, remains uncertain. Despite two

 

184. See Letter from Col. Joe R. Miller, Jacksonville Dist. Eng’r, U.S. Army Corps of

Eng’rs, to Richard G. Ring, Superintendent, Everglades Nat’l Park (June 29, 1999) (on file

with author).

185. See Press Release from Jacksonville Dist., U.S. Army Corps of Eng’rs, Army Corps

Takes Emergency Measures to Protect Cape Sable Nesting Area (Mar. 9, 1999), available

at <http://www.saj.usace.army.mil/pao/NR9904.html> (visited Mar. 5, 2000); Letter from

Middleton, supra note 182 (directing the Water Management District to implement emergency operational modifications to structure operations for the protection of the CSS sparrow).

186. See Letter from Middleton, supra note 182.

187. See 33 C.F.R. § 230.8 (1998); 50 C.F.R. § 402.05 (1999).

188. See JACKSONVILLE DIST., U.S. ARMY CORPS OF ENG’RS, FACT SHEET: EMERGENCY

OPERATIONS FOR THE 1999 CAPE SABLE SEASIDE SPARROW BREEDING SEASON (Mar. 8,

1999).

189. See Letter from Richard G. Ring, Superintendent, Everglades Nat’l Park, to Col.

Joe R. Miller, Jacksonville Dist. Eng’r, U.S. Army Corps of Eng’rs (Mar. 12, 1999) (on file

with author).

190. See Letter from Stephen W. Forsythe, State Supervisor, U.S. FWS, to Col. Joe

Miller, Jacksonville Dist. Commander, U.S. Army Corps of Eng’rs (Mar. 10, 1999) (on file

with author).

191. See id.

192. See In re Emergency Authorization for Modified Operation of the S-12 Water Control Structures, No. 99-0257, 99 E.R. F.A.L.R. 153, 1999 WL 436391 (Fla. Dep’t of Envtl.

Prot. 1999); Letter from Middleton, supra note 182.

193. See Interview with Strowd, supra note 134.

194. See Letter from Miller, supra note 184.
2000] EVERGLADES IN JEOPARDY 377

years of negotiations over the very same issues, the Corps, Park and

FWS are still no closer to a solution.

4. Eventually: The Comprehensive Everglades Restoration Plan

A longer-term solution is currently being explored through the

Central & Southern Florida Project Comprehensive Review Study,

known locally as the Comprehensive Everglades Restoration Plan

(Comprehensive Plan).195 Through the Water Resources Development

Act of 1996,196 Congress authorized the Corps to develop theComprehensive Plan as a comprehensive plan for restoring, preserving and

protecting the South Florida ecosystem, addressing issues such as

flood control, water quality, and drinking water supply.197

The Corps presented its proposal to Congress in July 1999 for further legislative action,198 and Florida passed legislation relating to

authorization of the Comprehensive Plan in April 1999.199 Two elements of the massive re-engineering of flow patterns and water storage throughout the ecosystem included the improvement of water

deliveries to Shark River Slough and the Park.200

Projects proposed in the Comprehensive Plan are expected to

benefit the endangered and threatened species in the Everglades, including the CSS sparrow.201 However, significant uncertainties remain. According to FWS’s March 1999 review of the Comprehensive

Plan, some proposals may make limited or no difference for the endangered CSS sparrows, wood storks, and snail kites, while other

proposals should make the endangered species more secure.202 Notably, however, the Comprehensive Plan simply assumes that problems

in the 81⁄2 Square Mile will be resolved.203 And, even if the Comprehensive Plan included solutions to every problem in the Everglades,

 

195. See JACKSONVILLE DIST., U.S. ARMY CORPS OF ENG’RS & SOUTH FLA. WATER

MGMT. DIST., CENTRAL AND SOUTHERN FLORIDA PROJECT COMPREHENSIVE REVIEW STUDY:

FINAL INTEGRATED FEASIBILITY REPORT AND PROGRAMMATIC ENVIRONMENTAL IMPACT

STATEMENT (1999) [hereinafter COMPREHENSIVE PLAN FINAL REPORT].

196. Pub. L. No. 104-303, 110 Stat. 3658 (1996).

197. See id. § 528(b)(1)(A)(i), 110 Stat at 3767.

198. See id. § 528(b)(1)(B)(ii), 110 Stat at 3768 (requiring submission of the plan to

Congress); see also Larry Lipman, Gore Urges $7.8 Billion for Everglades, PALM BCH. POST,

July 2, 1999, at B1; Rafael Lorente, Pitfalls Await Bill to Restore ‘Glades, FT. LAUD. SUN

SENT., July 5, 1999, at A1.

199. See Act effective Apr. 30, 1999, ch. 99-143, 1999 Fla. Laws 820 (codified at FLA.

STAT. § 373.1501 (1999)).

200. See COMPREHENSIVE PLAN FINAL REPORT, supra note 195, at 10-16 to 10-26, 10-31

to 10-33, 10-41 to 10-45; JACKSONVILLE DIST., U.S. ARMY CORPS OF ENG’RS, CENTRAL AND

SOUTHERN FLORIDA PROJECT COMPREHENSIVE REVIEW STUDY: OVERVIEW 16 (1998) [hereinafter COMPREHENSIVE PLAN OVERVIEW].

201. See COMPREHENSIVE PLAN FINAL REPORT, supra note 195, at 10-13.

202. See id.

203. See id. at N-88 to N-89.
378 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

it would still be less than satisfactory since many of the projects will

not be fully implemented for decades. 204

VI. THE REVIEWS

In retrospect, the conflicts between water management and endangered species protection provide just another example of how

public agencies can work tirelessly to achieve uncertain results. 205

While new water management techniques may eventually be found

for South Florida, recent experiences suggest a need for changes in

how the ESA is implemented. Agencies working in the Everglades

have made enormous efforts to meet their statutory requirements.

Nevertheless, to improve implementation of species protection laws

and to avoid similar chaos in the future, four major improvements

should be made.

First, FWS must ensure that it considers all the best available

science to provide the regulated agencies with reasonable and prudent alternatives, even in difficult emergency situations. When developing those alternatives, FWS also must take into account laws

other than the ESA to ensure that the alternatives can be implemented. Second, public administrators working with the ESA must

realize the value of communication and anticipation. In particular,

FWS and the Corps must work together more productively in their

efforts to protect endangered species. Third, changes should be made

to existing laws. The ESA and its regulations should empower CEQ,

as part of the consultation process, to recognize and regulate takings

of endangered or threatened species that occur because of emergency

circumstances. Forthcoming federal legislation on the Everglades

Comprehensive Plan also should specifically address endangered

species concerns. Fourth and finally, solutions to a number of lingering policy issues in the region must be found, and the agencies

must expand their current focus beyond the CSS sparrow to consider

the Everglades ecosystem as a whole.

A. Poor Execution: Faithfully Implementing Statutory Directives

Like any statute, the ESA requires interpretation by FWS when

implemented. However, the agency must be sure to meet two basic

requirements of the law: it must use the best available science, and it

must provide reasonable and prudent alternatives.

 

204. Many Comprehensive Plan projects will not be completed until 2010, or even

2050. See id. at 11-12.

205. See Charles Lindblom, The Science of Muddling Through, 19 PUB. ADMIN. REV.

79, 88 (1959); Charles Lindblom, Still Muddling, Not Yet Through, 39 PUB. ADMIN. REV.

517, 518 (1979).
2000] EVERGLADES IN JEOPARDY 379

1. Remember, Just the Facts: All Best Available Science

The ESA requirement to use best available scientific data206 gives

FWS the implicit authority to determine what exactly is the best

available science. Any determination and recommendation by FWS

inherently requires an assessment of the information and ultimately

gives some information more weight than others.207 Sifting through

the occasionally conflicting information presents a difficult task, although total scientific agreement is unnecessary for FWS to make an

ESA determination.208 This exercise of discretion is essential to the

proper implementation of the ESA. In the case of the CSS sparrow,

however, the agency’s initial insistence upon the validity of one scientist’s conclusions, 209 without placing value upon the opposing theories of other scientists210 and without explaining the reason for rejecting them, 211 seemed to violate the spirit of the “best available information” requirements in the ESA.212

At a minimum, FWS could have attended the workshop as requested by the Corps and Water Management District in 1997,

where it could have heard the opinions of eight different regional

bird experts. 213 In the ideal case, all information would be evaluated

 

206. See 16 U.S.C. § 1533(b) (1994).

207. See ELMER E. SCHATTSCHNEIDER, THE SEMI-SOVEREIGN PEOPLE 33 (1960) (stating

that the organization is itself a “mobilization of bias”).

208. See United States v. Guthrie, 50 F.3d 936, 946 (11th Cir. 1995) (holding that the

Secretary of Interior did not act arbitrarily and capriciously when he listed the Alabama

red-bellied turtle as endangered, despite the absence of total agreement in scientific community).

209. The biologist providing data to the Park and FWS, Dr. Stuart Pimm, reported that

managed water flows dramatically reduced the sparrow population west of Shark River

Slough by changing vegetation and altering fire cycles in the region, leaving remaining

populations vulnerable. See Stuart L. Pimm et al., Response to the AOU Review Committee on the Cape Sable Seaside Sparrow (Nov. 14, 1998) (white paper submitted to the independent review panel convened by the Science Coordination Team of the South Florida

Ecosystem Restoration Task Force, on file with the author). A copy of Dr. Pimm’s paper is

also available for download from <http://www.sfrestore.org/sct/sparrow/sparrow.htm> (visited Mar. 6, 2000) (Rich Text Format); see also Craig Pittman, One Man’s Eye on the Sparrow, ST. PETE . TIMES, June 3, 1999, at B1.

210. In his paper submitted to the independent scientific review panel, Dr. Will Post,

serving as a consultant for the Miccosukee Tribe, argued that Dr. Pimm’s survey data was

based upon untested methods showing wide fluctuations and contradicting the known biology of the bird. See Post, supra note 154, at 8-10. Dr. Pimm and Dr. Post also differed

greatly over reproduction rates and mortality, a key factor in determining the status and

prospects of an e ndangered species. See id.

211. FWS has shown a trend towards decreasing documentation. For example, while

the number of consultations increases, the number of biological opinions has decreased.

See Rohlf, supra note 78, at 190.

212. See DEBORAH STONE, POLICY PARADOX AND POLITICAL REASON 185-94 (1988) (describing an ideal model of rational political decision-making in which all available information is weighed in determining the costs and benefits of alternatives); Claire Felbinger, Lying with Statistics, in 3 INTERNATIONAL ENCYCLOPEDIA OF PUBLIC POLICY AND

ADMINISTRATION 1320-22 (Jay M. Shafritz ed., 1998).

213. See supra Part V.A.
380 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

and considered,214 with the agencies working together. The more recent efforts of the independent, scientific peer review panel in 1999

were an excellent example of this cooperative approach.215 Still, many

more interagency efforts are needed in order to achieve the panel’s

recommended objective: developing short- and long-term water management solutions for the CSS sparrow and the rest of the Everglades ecosystem.

2. Wouldn’t Be Prudent? Providing Realistic Alternatives

The ESA states that if FWS, during consultation with an agency,

determines in a biological opinion that an action is likely to jeopardize the continued existence of a species, FWS (through the Secretary

of the Interior) “shall suggest reasonable and prudent alternatives.”216 Unfortunately, during the El Niño events of 1997-1998,

FWS failed to provide any alternatives for months. Not until April

1998, near the end of the crisis, were any options listed.217 Moreover,

some of the options listed, such as sending more water into Shark

River Slough,218 could not be implemented by the Corps because of

other flood control laws. 219 Given those constraints, the Corps could

argue that FWS had violated its statutory duties under the ESA, because the alternatives suggested were neither “reasonable” nor “prudent” and were not actions that could be implemented. The unambiguous language of the ESA requires reasonable and prudent alternatives to be options that will not violate the ESA and that “can be

taken by the federal agency or applicant in implementing the agency

action.”220 Similarly, FWS and the Corps could be legally exposed under the Anti-Deficiency Act if the implementation of the proposed

 

214. Despite disagreement in the scientific community, FWS has not altered its scientific positions. In the months after the sparrow crisis had passed, an independent scientific

peer review panel was convened to review the data related to the CSS sparrow. Pending

that review, the Corps requested that FWS delay the issuance of a final biological opinion

on projects in the Park affecting the sparrow. See Letter from Col. Joe R. Miller, Jackso nville Dist. Eng’r, U.S. Army Corps of Eng’rs, to Sam D. Hamilton, Regional Dir., U.S. FWS

(Oct. 22, 1998) (on file with author). The very next day, the Natural Resources Defense

Council sent a letter urging FWS to deny the request. See Letter from Sara Chasis, Senior

Att’y, & Bradford H. Sewell, Project Att’y, National Resources Defense Council, to Don

Barry, Ass’t Sec’y, Fish, Wildlife & Parks Section, U.S. Dep’t of Interior (Oct. 23, 1998) (on

file with author). FWS denied the Corps’ request, concluding that “no significant new information is likely to become available.” Letter from Sam D. Hamilton, Regional Dir., U.S.

FWS, to Col. Joe R. Miller, Jacksonville Dist. Eng’r, U.S. Army Corps of Eng’rs (Oct. 26,

1998) (on file with author).

215. See supra Part V.E.1.

216. 16 U.S.C. § 1536(b)(3)(A) (1994) (emphasis added).

217. See supra note 182 and accompanying text.

218. See supra note 155 and accompanying text.

219. See supra Part IV.B.

220. 16 U.S.C. § 1536(b)(3)(A) (1994) (emphasis added).
2000] EVERGLADES IN JEOPARDY 381

reasonable and prudent alternative resulted in unbudgeted and unappropriated expenses to the federal agencies.221

Instead of providing unrealistic alternatives, in cases where FWS

cannot provide any reasonable and prudent alternatives, a much

more direct approach is available: immediate referral to the Endangered Species Committee.222

B. Fair Treatment: Replacing Command and Control

In its enforcement of the ESA, FWS is given substantial powers.

However, this regulatory power must be used in a balanced manner,

because under the ESA, FWS opinions are only advisory.223 The action agency can reject FWS’s recommendations or reasonable and

prudent alternatives—but could thereby be risking the consequences

of an ESA violation.224 Thus, when providing expert advice to other

federal agencies, FWS should strive to obtain the “consent of the governed.”225 During the CSS sparrow crisis, consent of the Corps was

never obtained.

By stating in its April 7, 1998, letter that failure to follow FWS instructions risked ESA exposure, the agency communicated a clear

message—do it our way or else. Management theorists might characterize this approach as “command and control”226 or an effort to

achieve domination by winning.227 Integrated, cooperative solutions

are more effective.228 In the future, FWS and the other federal agencies must do more to work together, instead of against each other229—

 

221. See supra note 122 and accompanying text.

222. See 16 U.S.C. § 1536(e) and (h); see also supra note 97 and accompanying text; infra Part VII.C.1.

223. See National Wildlife Fed’n v. Coleman, 529 F.2d 359, 371 (5th Cir. 1976).

224. See id.

225. Mary Parker Follett, The Giving of Orders (1926), reprinted in CLASSICS OF

PUBLIC ADMINISTRATION 66 (Jay M. Shafritz & Albert C. Hyde eds., 3d ed. 1992).

226. See NIKLAS LUHMANN, THE DIFFERENTIATION OF SOCIETY 31-36 (Stephen Holmes

& Carles Larmore trans., 1982); Giandomenico Majone, Analyzing the Public Sector: Shortcomings of Current Approaches, Part A: Policy Science, in GUIDANCE, CONTROL AND

EVALUATION IN THE PUBLIC SECTOR 61-70 (Franz-Xaver Kaufman et al. eds., 1986).

227. See MARY PARKER FOLLETT, CREATIVE EXPERIENCE 45-46 (1924) (characterizing

domination as a relatively ineffective way of dealing with conflict).

228. See BARBARA GRAY, COLLABORATING: FINDING COMMON GROUND FOR MULTIPARTY

PROBLEMS 21-23 (1989) (enumerating and describing several advantages to collaboration

as an agency approach to regulation).

229. Nationally, command and control approaches to environmental regulation are

giving way to cooperative efforts. See J.B. Ruhl, While the Cat’s Asleep: The Making of the

“New” ESA , 12 NAT. RESOURCES & ENV’T 187, 187-90, 224 (1998) (describing ESA reform

approaches); Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed. Reg.

8859 (1998) (codified at 50 C.F.R. §§ 17.22(b)(5)-(6), 17.32(b)(5)-(6), 222.3, 222.22(g)-(h)

(1999)) (establishing a program assuring landowners that agreement to and compliance

with a habitat conservation plan will not result in the imposition of additional requirements barring unforeseen circumstances); Announcement of Final Safe Harbor Policy, 64

Fed. Reg. 32,717 (1999) (announcing a policy under which landowners may improve habitat for endangered species with assurances that future land use changes causing incidental
382 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

especially in the implementation of the massive Everglades Comprehensive Plan effort.230

C. Good Laws: Amending Existing Laws to Expect the Unexpected

1. More Sense: Exercising Emergency Authority

In 1997, Congress studied the tension between flood control and

species protection during emergencies as part of the Flood Prevention and Family Protection Act of 1997.231 The bill, which never left

its sponsoring committee, proposed to grant an exemption from the

ESA for flood control projects that address a catastrophic natural

event or a critical, imminent threat to public health or safety.232

In this instance, had such a law been enacted, it might have

avoided ESA problems for the Corps. At the same time, it might have

sacrificed the CSS sparrow. Rather than completely exempting flood

control from the ESA, an alternative solution could improve the balance between the two objectives by ensuring that agencies and public

administrators exercise discretion reasonably.233

Currently, the Endangered Species Committee, with seven highlevel officials, including cabinet members, is required to convene in

order to authorize any agency action that may jeopardize an endangered species. 234 But in traditional consultation situations, federal

agencies are not allowed to balance the interests of the species

against the public interest in the project; rather, the agencies must

do everything possible to protect the endangered species in each of its

decisions. 235 The problems come when nothing else is “possible.”

Under NEPA, emergency circumstances already require an emergency environmental assessment to be conducted under the supervision of the CEQ. By comparison, the ESA exemption process does not

 

takings will not be prohibited), implemented by 64 Fed. Reg. 32,706 (1999) (amended Sept.

1999) (codified at 50 pts.13, 17 (1999)).

230. See supra Part V.E.4.

231. See H.R. 478, 105th Congress (1997).

232. See id.

233. See DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERNMENT: HOW THE

ENTREPRENEURIAL SPIRIT IS TRANSFORMING THE PUBLIC SECTOR 113-14 (1992) (advocating

a flexible, innovative form of government rather than rule-driven governmental organizations); Raymond W. Cox III, Administrative Discretion, in 1 INTERNATIONAL

ENCYCLOPEDIA OF PUBLIC POLICY AND ADMINISTRATION 37, 40 (Jay M. Shafritz ed., 1998)

(stating that trends in public administration recognize that “discretion is necessary to the

creation of the kind of flexible, responsive, and dynamic organizations that we have come

to believe should be the norm”).

234. See 16 U.S.C. § 1536(e) (1994).

235. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174-84 (1978); National Wildlife

Fed’n v. Coleman, 529 F.2d 359, 373 (5th Cir. 1976); Jared des Rosiers, The Exemption

Process Under the Endangered Species Act: How the “God Squad” Works and Why, 66

NOTRE DAME L. REV. 825, 838 n.84 (1991) (discussing the removal of “practicability” requirements from the ESA).
2000] EVERGLADES IN JEOPARDY 383

provide for CEQ input; instead, the “God Squad” is left to make the

decision, and any past experience that CEQ personnel may have had

with the issue is lost. 236 Increased CEQ review should, therefore, be

considered as an alternative to the current ESA exemption process

during emergency circumstances. 237

During the El Niño event, the Corps and Water Management District were nearly forced to make the fateful decision between impacting the CSS sparrow by opening the S-12 structures and potentially flooding the 81⁄2 Square Mile by sending more water into Shark

River Slough.238 Had the rains continued, the only solution would

have been to convene an Endangered Species Committee meeting—a

difficult proposition given the emergency conditions and the lack of

time for thoughtful review of the issues.

Expanded CEQ discretion could have provided the additional

flexibility and discretion needed to find reasonable and prudent alternatives that could have been implemented by the Corps. For example, had the Corps been allowed to divert more water through the

eastern S-12 structures, farthest from the CSS sparrow, this action

might have slightly impacted the bird’s habitat, but it could also

have significantly reduced the severity of the problems experienced

in the northern Everglades and perhaps even the coastal estuaries.

Unfortunately, the inflexibility of the ESA’s requirements, and the

difficulty of obtaining an exemption from the “God Squad,” made that

practical approach almost impossible.

President Woodrow Wilson once argued that the open and responsible exercise of administrative discretion was essential to effective

governance,239 a theme echoed by a recent author bemoaning the

death of common sense.240 Consistent with that philosophy, allowing

the CEQ, in consultation with the state governor’s office, to issue

ESA exemptions during emergencies would remove the burden of

convening the Endangered Species Committee, while creating clear

lines of accountability within the executive branches of both the fed-

 

236. See MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE

INDIVIDUAL IN PUBLIC SERVICES 3 (1980) (encouraging the use of public service workers

who interact directly with citizens in the course of their jobs, and who have substantial

discretion in the execution of their work).

237. See 16 U.S.C. § 1536(h) (1994). Revision of the Endangered Species Committee

has also been advocated by interest groups such as the foresters and conservationists. See,

e.g., Oregon Soc’y of Am. Foresters, Re-authorization and Amendment of the Endangered

Species Act (visited Aug. 17, 1998) <http://www.forestry.org/policy/policy.html#esa>; EDF

Challenges Exemption Process for Endangered Species, supra note 104.

238. See Interview with Strowd, supra note 134.

239. See Woodrow Wilson, The Study of Administration, 2 POL. SCI. Q. 197, 213 (1887).

240. See PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS

SUFFOCATING AMERICA 68-83 (1994).
384 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

eral and state governments.241 Granting the CEQ this authority

would also accord with precedent, given the CEQ’s existing role as an

arbiter of intergovernmental environmental conflicts242 and the state

governor’s role as a participant in the decision-making process. 243

2. Less Conflict: Reaching Consensus in the Comprehensive Plan

Underlying all of the problems with water management and endangered species protection in the Park is the inability of the Corps

and Water Management District to operate the flood control system

in a manner simulating the natural system. Fortunately, that is

what the Everglades Comprehensive Plan effort is intended to

achieve.244 Congress is expected to review that Comprehensive Plan

this year. Through legislation related to the Everglades Comprehensive Plan, Congress has an opportunity to address the problems of

protecting the CSS sparrow.

FWS has declared the CSS sparrow to be in jeopardy and insisted

upon immediate increases in discharges to Shark River Slough.245

Clearly, there is need for short-term water management agreements246 and continued progress toward the long-term solution of

ecosystem restoration in the Everglades.247

Ironically, even environmental restoration activities can be harmful. Actions to improve habitats for some endangered species can

have adverse impacts on other endangered species for whom the altered ecosystem may still be providing useful habitat.248 A balancing

of interspecies conflicts, therefore, must be incorporated into the

Comprehensive Plan effort; this could be achieved by including a

 

241. See Herman Finer, Administrative Responsibility in Democratic Government, 1

PUB. ADMIN. REV. 335, 350 (1941).

242. See supra Part III.A.

243. See 50 C.F.R. § 451.03(b) (1999) (requiring appointment of a state member to the

Endangered Species Committee).

244. See COMPREHENSIVE PLAN FINAL REPORT, supra note 195, at ii-iv, x-xiii;

JACKSONVILLE DIST., U.S. ARMY CORPS OF ENG’RS & SOUTH FLA. WATER MGMT. DIST.,

CENTRAL AND SOUTHERN FLORIDA PROJECT COMPREHENSIVE REVIEW STUDY: PROJECT

STUDY PLAN FOR THE COMPREHENSIVE PLAN, WATER PRESERVE AREAS, AND L-28

FEASIBILITY STUDY 4 (1997) (describing the purpose of the comprehensive plan as “resto ring, preserving, and protecting the South Florida ecosystem”).

245. See supra note 155 and accompanying text.

246. See supra Part V.E.1.; Sparrow Panel Report, supra note 169 and accompanying

text.

247. See id.

248. See MULTI-SPECIES RECOVERY PLAN, supra note 51. Volume I of the Multi-Species

Recovery Plan includes information on all of the endangered species of South Florida, and

identifies the actions necessary to ensure the survival of each species. Volume II describes

the appropriate environmental conditions needed in the regions of the Everglades to protect those species.
2000] EVERGLADES IN JEOPARDY 385

“habitat conservation plan” in the Everglades Comprehensive Plan

effort.249

In recent years, habitat conservation planning has emerged as a

flexible and practical approach to, and an important part of, species

protection programs for FWS in their dealings with private entities.

It has helped solve otherwise intractable problems and find compromises between environmentalists and opposing interests on issues all

across the country.250 Further, it is consistent with the affirmative

duty of federal agencies to protect species habitats. 251

Of course, developing a habitat conservation plan for the Everglades will not be easy. But difficult projects are not new in South

Florida. Already, the Water Management District is implementing

an $820 million program to restore water quality.252 Even the Comprehensive Plan has been controversial at times, spawning disagreements among the federal agencies.253 Controversies and difficulties did not prevent FWS from completing a multi-species recovery

plan for South Florida,254 with over 2,000 pages of analysis on endangered and threatened species and their habitat.

Unfortunately, that plan still looks at species individually, and

does not enable the Corps or the Water Management District to determine how to control waters as they flow through an entire ecosystem. 255 For example, the document explains that high water levels in

the water conservation areas can flood wood stork habitat256 and that

high water levels in the Park can interfere with CSS sparrow habi-

 

249. The Comprehensive Plan will evolve through a series of documents. The document

presented to Congress in July 1999 is the “feasibility study,” which will be followed by

Congressional authorization, pre-construction engineering and design, and a project cooperation agreement. See COMPREHENSIVE PLAN OVERVIEW 22, supra note 200.

250. See U.S. FWS & NAT’L MARINE FISHERIES SERV., ENDANGERED SPECIES HABITAT

CONSERVATION PLANNING HANDBOOK i-ii (1996); Ranae A. Buscher, HCPs Seek a Balance

Between People, Nature, SEATTLE DAILY J. OF COMMERCE, Aug. 22, 1996, Special Section:

Protecting the Environment, available at <http://www.djc.com/special/enviro96/

10014090.htm> (visited Mar. 6, 2000); Timothy Beatley, Habitat Conservation Plans: A

New Tool to Resolve Land Use Conflicts, LAND LINES (Lincoln Inst. of Land Policy, Cambridge, Mass.), Sept. 1995, available at <http://www.lincolninst.edu/landline/1995/

septembr/beatley.html> (visited Mar. 6, 2000); Press Release from Envtl. Defense Fund,

Unique Habitat Plan For Red-Cockaded Woodpecker Applauded by EDF (Mar. 1, 1995),

available at <http://www.edf.org/pubs/NewsReleases/1995/Mar/a_peck.html> (visited Mar.

6, 2000); Weyerhauser Company, Threatened and Endangered Species (visited Mar. 6,

2000) <http://www.weyerhaeuser.com/facts/tande.htm>.

251. See supra note 94 and accompanying text.

252. See FLA. STAT. § 373.4592 (1999); SOUTH FLA. WATER MGMT. DIST., ‘98

EVERGLADES ANNUAL REPORT 30 (1998).

253. See Neil Santaniello, Everglades Restoration Has Backing, Babbitt Says, FT.

LAUD. SUN SENT., May 19, 1999, at B2.

254. See MULTI-SPECIES RECOVERY PLAN, supra note 51.

255. Department of the Interior Secretary Bruce Babbitt has promoted the South

Florida Multi-Species Recovery Plan as a guide to ESA compliance. See Santaniello, supra

note 253.

256. See MULTI-SPECIES RECOVERY PLAN, supra note 51, at 4-399 to 4-400.
386 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

tat. 257 The document, however, presents separate recovery plans for

the two species and does not provide an integrated strategy for solving the water management needs of the entire ecosystem. Accordingly, the next step would be for Congress to direct FWS and the

Corps to transform that document into a habitat conservation plan

for the Everglades.258 To be successful, the plan must address routine

as well as emergency requirements for water management in the

short and long term.

If such a plan were completed, compliance with its terms could

then provide federal and state agencies with protection from liability

under the ESA, just as compliance with a habitat conservation plan

would protect a private entity.259 Similarly, any takings of endangered species that occur during the implementation of the water

management program should be deemed incidental to an otherwise

lawful activity, with no ESA liability.260

Precedent exists for the passage of special legislation to solve the

ESA problems created by a single species. In 1986, Congress specifically authorized a program for the translocation of California sea otters, confining the protection of the otters to a specified region and

authorizing incidental takes outside that region.261 The legislation

sought to strike a balance among the need to protect the sea otters,

the detrimental impacts upon the shellfisheries upon which the otters fed, and the ultimate adverse impacts on the fishing industry.262

Although the legislation has been controversial, the lessons learned

from this legislation can provide a basis for future efforts in developing water management plans to resolve problems related to the

 

257. See id. at 4-350 to 4-351.

258. See Endangered Species Act § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B) (1994); 50

C.F.R. § 17.22 (1999). However, any habitat conservation planning process established by

Congressional legislation need not follow verbatim the existing rules and should be specifically tailored to the Comprehensive Plan. For recommendations to improve habitat conse rvation planning, see Albert C. Lin, Participants’ Experiences with Habitat Conservation

Plans and Suggestions for Streamlining the Process, 23 ECOLOGY L.Q. 369, 411-32 (1996).

259. See supra note 90 and accompanying text.

260. See supra Part IV.A.3.; see also 16 U.S.C. §§ 1540-41 (1994); 50 C.F.R. § 402.14(i)

(1999); Christopher H.M. Carter, A Dual Track for Incidental Takings: Reexamining Sections 7 and 10 of the Endangered Species Act, 19 B.C. ENVTL. AFF. L. REV. 135, 170-71

(1991) (arguing that federal consultation procedures are insufficiently protective of endangered species and that application of a habitat conservation planning approach would be

more effective).

261. Act of Nov. 7, 1986, Pub. L. No. 99-625, § 1, 100 Stat. 3500, 3500-3502.

262. See Balance Sought in Sea Otter Conflict, ENN DAILY NEWS, Mar. 24, 1999,

available at <http://www.enn.com/enn-news archive/1999/03/032499/otters_2297.asp>

(visited Mar. 6, 2000) see also California Seafood Council, Sea Otters and Zonal Management in California, available at <http://www.ca-seafood.org/news/seaotters.html> (last

modified 1997). But cf. Letter from Jim Curland, Science Dir., & Jeffrey Calder, Exec. Dir.,

Friends of the Sea Otter, to Steve Alcorn, U.S. FWS (Apr. 30, 1999) (regarding FWS draft

report on the southern sea otter translocation program and biological opinion), available at

<http://www.seaotters.org/pdf/alcorn-letter.pdf > (visited Mar. 6, 2000).
2000] EVERGLADES IN JEOPARDY 387

CSS sparrow. In fact, FWS has already acknowledged the potential

need for species-specific solutions in the Everglades’ Multi-Species

Recovery Plan, which identifies translocation and controlled propagation of CSS sparrow populations as available policy options. 263

D. Great Debates: Resolving Lingering Policy Problems

Finally, and perhaps most significantly, the problems with the

CSS sparrow during El Niño reflect the continuing debates over public policy issues, including the acquisition or protection of the 81⁄2

Square Mile, the authority of federal agencies regarding water policy,

and the importance of a single species compared to an entire ecosystem.

1. Buy It or Dike It? End the Property Rights Debate

The policy debate over the 81⁄2 Square Mile has been long and difficult. If new and expensive flood control improvements are made to

protect private property, the changes could further compartmentalize

the Everglades ecosystem and continue the pattern of controversial

drainage activities that caused many of the Everglades’ problems in

the first place.264 Alternatively, if no flood control is provided, continued flooding of private lands may occur. Land acquisition efforts or

eminent domain proceedings are equally controversial. 265

Thus far, neither the Corps nor the Water Management District

has been able to agree upon, fund, and implement a final solution to

this difficult issue.266 Property rights and endangered species protection remain on a collision course in the Everglades. 267 The lands exposed to flooding must be acquired or they must be protected—either

way, a decision must be made.268 Otherwise, history may repeat itself

when the next massive rainfall threatens the Park’s famous—or perhaps infamous—endangered bird.

 

263. See MULTI-SPECIES RECOVERY PLAN, supra note 51, at 4-365 to 4-366.

264. See EAST EVERGLADES 8.5 SQUARE MILE AREA STUDY COMMITTEE, supra note 75,

at 20-23.

265. See id. at 16-18; supra Parts III.C, IV.B.3.

266. See Editorial, Stick with Buyout Plan , PALM BCH. POST, June 19, 1999, at 12A,

available in LEXIS, News Library, Pbpst File.

267. See ROBERT MELTZ, CONGRESSIONAL RESEARCH SERV., THE ENDANGERED SPECIES

ACT AND PRIVATE PROPERTY: A LEGAL PRIMER (Report No. 93-346A, 1993), available at

<http://www.cnie.org/nle/biodv-8a.html> (visited Mar. 6, 2000); Mark Sagoff, Muddle or

Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 WM. &

MARY L. REV. 825, 989-93 (1997) (concluding that ad hoc analysis and deference to the political process provide the best way to deal with conflicts between constitutional takings

and ecosystem preservation).

268. Inverse condemnation claims continue to threaten the implementation of the ESA,

and resolving the debate over the Area may help overcome this prickly issue. See Robert B.

Keiter, Ecosystems and the Law: Toward an Integrated Approach, 8 ECOLOGICAL

APPLICATIONS 332 (1998).
388 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

2. Who Runs the Flow? Establish the Federal Roles

A second major policy debate is emerging in South Florida. Given

the importance of water to the regional ecosystems, agencies with

authority to control water possess substantial powers. The federal

agencies, however, are divided in the exercise of water management

authority.

The Corps possesses primary responsibility for many flood control

systems. 269 However, the water management authority vested in the

Corps reflects a quirk of history. After initially creating the Corps to

develop expertise in siegecraft during times of war,270 Congress continued to grant the agency new civil works authority,271 including

navigational waterway construction and flood control. Later, the

Corps’ authorities were expanded to include water quality and wetland protection, because the Corps already had dredge-and-fill expertise.272

Nevertheless, the water authority of the Corps is hardly absolute.

The U.S. Environmental Protection Agency (EPA), for example, has

veto authority over the Corps’ permitting program.273 The tension between the Corps and the U.S. Department of Interior, demonstrated

by the disagreements over protecting the CSS sparrow, is just another example of the complex system of checks and balances and division of power at work in the federal government.

In the past, the Bureau of Reclamation, an agency within the U.S.

Department of Interior, was responsible for many water management projects in the western United States, such as dam construction.274 Recently, the Bureau of Reclamation has been reinventing itself, and today it promotes itself as dedicated to river restoration,

water conservation, water quality, wetland protection, and endangered species preservation.275 Meanwhile, the “greening of the Corps”

through its involvement in environmental issues has become increasingly controversial. 276 Shifting the Corps’ responsibilities to an

 

269. See U.S. ARMY CORPS OF ENG’RS, THE HISTORY OF THE U.S. ARMY CORPS OF

ENGINEERS 47-51 (1998).

270. See id. at 17-23.

271. Examples of the Corps’ expanded authorities include surveying, national road

building, and hydroelectric power development. See id. at 29, 33, 53.

272. See id. at 57-59.

273. See Clean Water Act § 404(c), 33 U.S.C. § 1344(c) (1994); Avoyelles Sportsmen’s

League v. Marsh, 715 F.2d 897, 903 n.12 (5th Cir. 1983); Memorandum of Understanding

Between the Department of the Army and the Environmental Protection Agency on the

Geographic Jurisdiction of the Section 404 Program, 45 Fed. Reg. 45,018 (1980).

274. See BUREAU OF RECLAMATION, U.S. DEP’T OF INTERIOR, DESIGN OF SMALL DAMS vvi (1977).

275. See Bureau of Reclamation, U.S. Dep’t of Interior, Written in Water (visited July

28, 1998) <http://www.usbr.gov/main/written/contents.html>.

276. See Jennifer Maddox, Budget Would Mire Corps of Engineers’ Projects, STUART

NEWS/PORT ST. LUCIE NEWS, Mar. 29, 1998, available at <http://www.tcpalm.com/fish/
2000] EVERGLADES IN JEOPARDY 389

Interior agency, such as the Bureau of Reclamation—which could be

renamed the Bureau of Restoration—would be supported by these

historical and recent trends. However, such a radical legislative action would not provide any easy solutions to the problems in the Everglades, because the new Bureau of Restoration would still be required to comply with all the laws governing water management, including, but certainly not limited to, the ESA.

3. All for One, or One for All? Ask the God Squad

Fundamentally, the biggest problem with the efforts to save the

CSS sparrow is that they focused upon a single species, as opposed to

finding solutions to benefit all species in the Everglades. After the El

Niño events of 1997-1998, biologists working with FWS quickly declared victory, issuing press releases announcing increases in the

CSS sparrow population.277 Other scientists criticized that conclusion

as unsupportable.278 But even if the CSS sparrow was saved from extinction, the outcome was costly.

If CSS sparrow numbers increased, many other birds of the Everglades, the estuaries, and even South Florida residents appeared to

suffer. Wading bird populations decreased dramatically from 1997 to

1998, falling eighty-three percent compared to the previous year.279

Coastal estuaries suffered long-term damage to seagrasses and

plankton because of excessive freshwater discharges. 280 Furthermore,

St. Lucie’s fishing industry was devastated by the crypto organism,

 

fish3.html> (visited Mar. 6, 2000); Jennifer Maddox, Environment Floods Army Corps

Plans, PRESS J., Mar. 28, 1998, at A1. U.S. Congressman Larry Craig (R-Idaho), for example, has been an outspoken critic of the Corps’ involvement in environmental issues, saying

that “[t]he only green I can accept about the Army Corps of Engineers is its uniforms.” Id.

277. See Stuart L. Pimm, Statement on the Current Status of the Cape Sable Sparrow

(unpublished statement prepared for Richard G. Ring, Superintendent of the Park, late

May 1998) (on file with author); UT Scientists Study Saves Endangered Everglades Bird,

CONTEXT ON-LINE (Univ. of Tenn., Knoxville, TN), June-July 1998, available at

<http://ur.utenn.edu/context/june-july98context/features/pimm.html> (visited Mar. 6,

2000).

278. Critical scientists noted three major problems with claims that CSS sparrow

populations were rising. First, the increase in 1998 may have been a result of improvements made over a year ago, and the results of the El Niño event would not be apparent

until 1999, after the new hatchlings have grown into singing males that could be counted.

Second, the increase may be attributable to survey errors, and bird counts from previous

years may have underestimated the actual numbers by as many as 1,500 birds. Third,

some scientists believe that the birds migrate between populations, and fly to improved

habitat, therefore making bird counts unreliable and overstating the importance of the

western population. See Interview with John Odgen, Senior Ecologist, South Fla. Water

Mgmt. Dist. (Oct. 30, 1998); Sparrow Panel Report, supra note 169.

279. See Robert P. King, Everglades Wading-Bird Population Dangerously Low, PALM

BCH. POST, Apr. 13, 1998, at B1.

280. See King, supra note 166, at B1.
390 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

which spread through the coastal estuaries. Local activists and reporters from around the country warned of economic ruin.281

FWS acknowledged these conflicts in one of its letters, noting that

recommendations to save the CSS sparrow should not come “at the

expense of other portions of the historic Everglades ecosystem.”282

Unfortunately, the only alternative given by FWS was to have private landowners “share the adversity.”283 That trade-off between impacting human habitat or endangered species is as unwelcome as

having to choose whether to impact sparrows, wood storks, or snail

kites. FWS’s insistence upon “shared adversity” exemplifies the very

reason that the ESA is so controversial.

To FWS, extinction is understandably not an option. The small

population of CSS sparrows in the Everglades has become synecdochical, representative of all the endangered birds in the nation.284

Saving the CSS sparrow is a way to prove that the ESA still works

and a way to make up for the previous mistakes made with the

Dusky sparrow.285 The deeper and more difficult question is whether

saving the CSS sparrow is actually making things worse by harming

other wildlife in the Everglades ecosystem.

Once again, the Comprehensive Plan provides an opportunity to

find solutions. If a habitat conservation plan or other water management plan is developed for the region, as suggested above, it could

produce a plan that satisfactorily balances the needs of all species in

the Everglades, adequately protecting the CSS sparrow and enabling

its return to stable population levels. 286 Congress should not stop

there.

The ecosystem restoration efforts in the Comprehensive Plan

benefit many species, not just one. The mere potential for adverse

 

281. See Heather Dewar, Fish Lesions Spark Concern in Central Florida, BALTIMORE

SUN, Mar. 20, 1998, at A1; Andrew Conte, Decades of Abuse Flow On, STUART NEWS/PORT

ST. LUCIE NEWS, Mar. 29, 1998, available at <http://www.tcpalm.com/fish/fish1.html>

(visited Mar. 6, 2000).

282. Letter from Forsythe, supra note 138.

283. Id.

284. Deborah Stone defines and describes “synecdoche” as when a single instance becomes representative of a large scale problem. For example, when a President makes a

plea for an organ donation, people across the country are pleased when the match is

found—but the single instance makes invisible the many other people who need similar

transplants. See STONE, supra note 212, at 117 (1988).

285. See MULTI-SPECIES RECOVERY PLAN, supra note 51, at 3-141. The plan states:

We need to be certain that we react differently for the Cape Sable seaside sparrow or we will suffer similar consequences . . . . Flood control for agriculture

and urban dwellings has taken precedence over re-establishing more natural

hydropatterns in Cape Sable seaside sparrow habitat. If we do not begin to implement recovery objectives that restore natural hydrologic conditions, thus allowing native vegetative communities to exist, we will be forced to accept that

once again, we have failed.

Id. Notably, this language is absent from the final recovery plan.

286. See supra Part VI.C.3.
2000] EVERGLADES IN JEOPARDY 391

impacts to a single, opportunistic endangered species that relocates

its habitat to a previously impacted area should not provide a barrier

to the greater overall benefit that the Comprehensive Plan could

yield to the Everglades’ many endangered species. 287 Instead, Congress should expressly exempt the Comprehensive Plan from takings

of endangered species that result from its implementation, provided

that the Comprehensive Plan projects can be demonstrated to have

an overall beneficial impact upon the habitat of endangered and

threatened species. Furthermore, if individual species such as the

CSS sparrow require special programs, including relocation or

breeding programs, then Congress should authorize those programs

as well.

Absent such legislation, a worst-case scenario could emerge in

which the CSS sparrow, or some other individual endangered species

on the brink of extinction, could endanger the entire Everglades ecosystem restoration effort. In that case, a decision will need to be

made whether to save the individual endangered species—by not implementing portions of the Comprehensive Plan and therefore not

helping other endangered species—or whether to allow the individual

species to become extinct. If Congress does not provide an ESA exemption for the Comprehensive Plan, then the Endangered Species

Committee will be left with the decision—and the litigation that will

inevitably follow.288

VII. CURTAIN CALLS

Unlike the Dusky sparrow, which was sent to extinction by lack of

attention and the insufficiency of governmental actions,289 the CSS

sparrow has been a virtual superstar in the Everglades, receiving

overwhelming consideration. Still, the complexities of the Everglades

restoration leave the fate of the CSS sparrow uncertain. Ironically,

most of the problems in the Everglades are a result of the C&SF

Project performing exactly as it was designed to work. The real

problem, it can be argued, is the development of South Florida, and

the need for new water storage and water management options.290 After all, the governmental agencies cannot stop the rainfall, and the

resulting storm water must go somewhere.

Managing that storm water, as this case study has shown, causes

serious problems under the ESA. Even though the ESA is generally

 

287. See supra note 248 and accompanying text.

288. “If the Federal agency determines that it cannot comply with the requirements of

Section 7(a)(2) [the prohibition against taking by federal agencies] after consultation with

the Service, it may apply for an exemption. Procedures for exemption applications by Federal agencies and others are found in 50 C.F.R. part 451.” 50 C.F.R. § 402.15(c) (1999).

289. See supra Part II.C.

290. See id.
392 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

an effective tool for protecting ecological diversity, in the Everglades

it is becoming a tool for pointing fingers, instead of finding solutions.

The agencies are arguing over liability instead of viability. The situation is unnecessary and unfortunate, especially in light of rising opposition to the ESA among Congressional leaders. 291

In some ways, the finger-pointing is understandable. FWS and the

Park officials advocate for the interests of the CSS sparrow and other

wildlife, consistent with their responsibilities. Similarly, the Corps

guards its own flood control responsibilities, balancing the hydrologic

needs of an ecosystem with the often conflicting needs of the nearby

homeowners.

While these agencies may be destined to be in conflict, the Everglades Comprehensive Plan provides an opportunity to find viable

solutions to these conflicts. Common sense must prevail. FWS and

the Park may need to accept and agree upon some short-term adverse consequences—such as incidental takes to the CSS sparrow—

during an initial period while new Everglades restoration efforts are

implemented. Meanwhile, additional efforts to minimize the harm

caused to the CSS sparrow, such as accelerating the implementation

of land acquisition and water management modifications, must also

be considered by the Corps. Some portions of the Comprehensive

Plan may even be delayed while methods to minimize impacts on endangered or threatened species are investigated. Still, the fundamental point is that the success of the Comprehensive Plan demands increased interagency cooperation. The alternative is to continue the

conflicts between federal agencies, and the result will be another sad

song of extinction for another endangered sparrow.

VIII. EPILOGUE

As this Article was being finalized, the inevitable happened. In

October 1999, a lawsuit was filed on behalf of the CSS sparrow.292 In

fact, the CSS sparrow was a named plaintiff. Accompanied by substantial publicity,293 the lawsuit accused the Corps and the Water

Management District of operating the regional canal systems in a

way that jeopardized the continued existence of the sparrow.294 Pre-

 

291. See Bruce Babbitt, The Endangered Species Act and “Takings”: A Call for Innovation Within the Terms of the Act, 24 ENVTL. L. 355, 357 (1994); M. LYNNE CORN,

CONGRESSIONAL RESEARCH SERV., ENDANGERED SPECIES: CONTINUING CONTROVERSY (Issue Brief No. 97046, 1998).

292. See Complaint for Declaratory and Injunctive Relief, Natural Resources Defense

Council, Inc. v. U.S Army Corps of Eng’rs (S.D. Fla. 1999) (No. 99-CV-2899).

293. See, e.g., Robert P. King, Sparrow Sues Engineers for Draining Home, PALM BCH.

POST, Oct. 28, 1999, at A5; Neil Santaniello & David Flesher, Water Managers Facing Suit

over Glades Bird, FT. LAUD. SUN SENT., Oct. 28, 1999, at B1.

294. See Complaint for Declaratory and Injunctive Relief at 7, Natural Resources Defense Council, Inc. v. U.S Army Corps of Eng’rs (S.D. Fla. 1999) (No. 99-CV-2899).
2000] EVERGLADES IN JEOPARDY 393

dictably, the lawsuit ignored the potential adverse consequences for

regional flooding of homeowners.

Without a settlement agreement, an exemption from the Endangered Species Committee, or a legislative solution, the agencies and

environmental groups concerned about the fate of the CSS sparrows

are likely to spend months, or even years, arguing in court over the

proper course of action. In the meantime, the fate of the endangered

bird, and perhaps even the entire Everglades restoration effort, will

remain in jeopardy.
394 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:349

APPENDIX

Source: Everglades N ational Park

and SFWMD GIS database
2000] EVERGLADES IN JEOPARDY 395

Source: SFWMD GIS database