Everglades Restoration: Modified Water Deliveries Project
Released: 2006-07-24T00:00:00

Most Recent Developments

The Modified Waters Deliveries Project (Mod Waters) is being implemented by the Department of the Interior (DOI) and the U.S. Army Corps of Engineers in southern Florida. (See Figure 1 .) For FY2007, the Administration has requested a total of $48 million for the project: $35 million through the Corps and $13.3 million through the DOI. The House-passed Interior and Energy and Water appropriations bills, and the Senate-reported Interior appropriations bill, provide the requested amount of funding for Mod Waters for FY2007. The Senate-reported Energy and Water bill, however, provides no funding for Mod Waters (for the Corps) for FY2007 and limits funds to $35 million for the Corps to construct this project. The Senate Appropriations Committee report on the Energy and Water bill ( S.Rept. 109-274 ) states that Mod Waters should be solely funded by the DOI since it benefits Everglades National Park.

DOI and the Corps jointly funded Mod Waters in FY2007. Previously, DOI had solely funded the project. Joint funding of Mod Waters has generated controversy and raised the question of whether the Corps is authorized to receive appropriations to work on the project. The Administration's position appeared to be for the Corps to pay for roughly two-thirds of the remaining $146 million required to complete the project from FY2007 to FY2009. For FY2006, $25 million was appropriated to the DOI, and $35 million to the Corps for this project.

A provision in the Interior Appropriations Act for FY2006 ( P.L. 109-54 ) conditions funding for Mod Waters on meeting state water quality standards. This provision cites provisions in the FY2004 Interior Appropriations Act, which states that funds appropriated for Mod Waters will be provided unless the Secretary of the Interior, Secretary of the Army, Administrator of the EPA, and Attorney General indicate in a joint report (to be filed annually until December 31, 2006) that water entering the A.R.M. Loxahatchee National Wildlife Refuge and Everglades National Park does not meet state water quality standards, and the House and Senate Committees on Appropriations respond in writing disapproving the further expenditure of funds. The FY2007 Administration request did not contain this condition; however, the House-passed Interior Appropriations bill and Senate-reported bill both contain this provision.

Background

The Modified Water Deliveries Project was authorized by the Everglades National Park Protection and Expansion Act of 1989 ( P.L. 101-229 ; 16 U.S.C. Â§Â§410r-5, etc.) to improve water deliveries to Everglades National Park (ENP) and, to the extent possible, restore the natural hydrological conditions within the park. The completion of Mod Waters is expected to be significant step towards the implementation of the Comprehensive Everglades Restoration Plan (CERP; Title VI, P.L. 106-541 , the Water Resources Development Act of 2000 [WRDA 2000]). Indeed, Mod Waters must be completed before appropriations can be made to construct other restoration projects in the east Everglades (Â§601(b)(2)(D)(iv) of WRDA 2000).

Mod Waters is expected to consist of structural modifications and additions to the Central and Southern Florida Project (C&SF Project) to improve the timing, distribution, and quantity of water flow to the Northeast Shark River Slough. Increased water flow to the Northeast Shark River Slough will increase water supplies in the ENP and is expected to improve the natural habitat and hydrology of a portion of the Everglades ecosystem. There are four components to Mod Waters: 8.5 SMA flood mitigation, Tamiami Trail modifications, conveyance and seepage control features, and Combined Structural and Operational Plan (CSOP). The 8.5 SMA flood mitigation and Tamiami Trail modifications are discussed below.

Mod Waters is expected to flood some residential and agricultural areas adjacent to the park. Legislation authorizing this project instructs the Secretary of the Army to determine if residential and agricultural areas within or adjacent to the 8.5 SMA will be flooded from the hydrological changes of Mod Waters (Â§104(a)). If these areas are under threat of flooding, the law mandates that a flood protection system must be developed for the area (Â§104(b)). To prevent flooding, several mitigation features have been developed. One of these features is called Alternative 6D, which is a plan for protecting residents in the 8.5 SMA from flood waters resulting from the project.

The purpose of the Tamiami Trail modification is to identify alterations to the highway that would improve water flows for Northeast Shark River Slough and Everglades National Park. A general reevaluation report and environmental impact statement have been prepared for this project. These reports include a recommended alternative calling for two bridges that would allow water flows to pass across the highway. Construction is expected to begin in 2007.

Issues Surrounding the Modified Water Deliveries Project

Three issues are being debated about the implementation of Mod Waters, including its estimated funding level, project delays, and the controversy surrounding land acquisition in the 8.5 SMA.

Funding

The question of whether the Corps is authorized to fund Mod Waters was an issue during the deliberation over the FY2006 Energy and Water Appropriations. Arguments used to support the proposition that the Corps could be authorized to directly fund Mod Waters cite Â§102(f) of the Everglades National Park Protection and Expansion Act of 1989 ( P.L. 101-229 ), which is the only section that authorizes funding and authorizes such sums as may be necessary to carry out the provisions of the act. This provision would include Â§104, which authorizes Mod Waters, though it primarily authorizes activities carried out by the Corps. Arguments used to argue against Corps authorization to fund Mod Waters could cite the long history of transfers from the NPS to the Corps, which could be argued to establish a strong precedent for the lack of Corps authority. Due to these conflicting arguments and the lack of clear legislative intent, the authority for the Corps to directly fund Mod Waters might still remain debatable. In the FY2007 Energy and Water Appropriations debate, the Senate Energy and Water Appropriations Committee has not provided funds to the Corps for Mod Waters.

Rising project costs for Mod Waters has led some critics to question its viability. The original cost of completing Mod Waters was estimated at $81.3 million in 1990. The current estimated cost for completing the project is $398 million. To date, approximately $252 million has been appropriated for constructing and implementing Mod Waters, and $146 million more is estimated to be needed to finish the project (i.e., FY2007-FY2009). Some contend that changes in the implementation plan, the rising cost of land acquisition, and flood mitigation requirements have led to higher costs. This was reflected, according to some, in the changes in the 1992 General Design Memorandum, which were derived from updated modeling data and the project's need to be compatible with CERP.

Project Delays

Mod Waters was originally estimated to be completed by 1997, yet now some argue it is unclear as to when or even whether the project will be completed. The FY2006 Administration request indicates that funding will be requested through FY2009. Some contend that delays are due to the undefined roles of DOI and the Corps in implementing the project, a lack of a unified approach to restoration, redesigning the project, and litigation regarding the 8.5 SMA and Tamiami Trail portion of the project. Some argue that the delay in implementing Mod Waters jeopardizes implementation of CERP projects, causes further degradation within Everglades National Park, and will set a precedent for delays and deliberation regarding land acquisition activities when CERP projects are being implemented. Some proponents of the project contend that ongoing land acquisition in the 8.5 SMA will minimize any future delays.

Land Acquisition in the 8.5 Square Mile Area

Implementation of Mod Waters is dependent on acquiring land in the 8.5 SMA. Land acquisition in this area is controversial because there are several unwilling sellers and the Corps is exercising eminent domain in some cases to acquire necessary lands.

The 8.5 SMA is a region adjacent to ENP of approximately 5,600 acres. Due to its low topography and lack of drainage, parts of the 8.5 SMA frequently flood for several months during the year. With the implementation of Mod Waters, the Corps expects that most of the 8.5 SMA would flood. The Corps developed a flood mitigation plan in 1992 to provide flood mitigation for residents in the 8.5 SMA and allow for the implementation of Mod Waters. However, the 1992 Plan was later deemed "unworkable" by the superintendent of Everglades National Park, who claimed that it would not provide full flood protection for current and future residents in the 8.5 SMA.

The Corps began to devise a new plan for Mod Waters and the 8.5 SMA in 1999, which considered several alternative plans, including the complete buyout of the 8.5 SMA. A new plan, referred to as Alternative 6D, was proposed by the Corps in 2000. This plan includes a perimeter levee, seepage canal, pump station, and storm water drainage for flood protection in the 8.5 SMA. Instead of a complete buyout of the 8.5 SMA, this plan proposed the acquisition of approximately 2,500 acres in the 8.5 SMA (39% of the total area) and the acquisition of 77 residential tracts (24 tenant-occupied tracts and 53 owner-occupied tracts) in the 8.5 SMA (13% of the total number of "residential areas" in the 8.5 SMA).

Some residents who were unwilling to sell their land in the 8.5 SMA filed suit against the Corps in 2001. They asserted that the Corps does not have the authority to implement a plan that does not protect the entire 8.5 SMA from flooding, and that the Corps does not have the authority to exercise eminent domain or spend money to acquire their land through condemnation. On July 5, 2002, a district judge restricted the Corps from veering from its original mandate to protect the entire community from flooding, and prevented the Corps from acquiring land in the 8.5 SMA. The Corps later appealed this decision and are now acquiring lands in the area.

To help implement Mod Waters, Congress included a provision in the Consolidated Appropriations Resolution for FY2003 (Division F, Title I, Â§157 of P.L. 108-7 ) that authorizes the Corps to implement a flood protection plan (Alternative 6D) for the 8.5 SMA as part of Mod Waters. Three conditions are specified in the section authorizing implementation of Alternative 6D: (1) the Corps may acquire residential property needed to carry out Alternative 6D if the owners are first offered comparable property in the 8.5 SMA that will be provided with flood protection; (2) the Corps is authorized to acquire land from willing sellers in the flood-protected portion of the 8.5 SMA to carry out the first condition; and (3) the Corps and the nonfederal sponsor may carry out these provisions with funds provided under the Everglades National Park Protection and Expansion Act of 1989 ( P.L. 101-229 ; 16 U.S.C. Â§410r-8) and funds provided by the DOI for land acquisition for restoring the Everglades.

Some critics of land acquisition in the 8.5 SMA base their arguments on the same principles used to criticize the acquisition of the entire 8.5 SMAâthat the federal government should not exercise eminent domain to remove unwilling sellers and that the federal government is obligated to protect all residential areas from floods under P.L. 101-229 . Some critics also argue that there are several unwilling sellers in the area and that if condemnations proceed, delays due to litigation will be inevitable and will eventually harm the ecosystem. The Corps asserts that there are several willing sellers in the 8.5 SMA. Approximately 78% of the 843 needed tracts have been acquired, and of the remaining 189 tracts, 57% are in negotiations for acquisition and 43% are expected to be condemned.