Table of Contents

Supplement to "MAINTAINING THE MOMENTUM"
1999 Biennial Report of the South Florida Ecosystem
Restoration Task Force

Submitted to the U.S. Congress, Florida Legislature,
Seminole Tribe of Florida, and All Interested Parties

by Dexter Lehtinen, Task Force Member

April 1999

" The Everglades is our mother and she is dying. "

Billy Cypress, Chairman,
Miccosukee Tribe of Indians of Florida

PROBLEMS

However, on the negative side the "big picture" shows --

** Low Inter-agency Cooperation -- Inter-agency cooperation (particularly by Department of the Interior agencies) remains low and many agencies refuse to commit to the overall Restudy process. In addition, many agencies refuse to implement programs which have been finalized through the NEPA (National Environmental Policy Act) and the EIS (environmental impact statement) processes.

**Lack of Accountability -- The lack of accountability is astonishing, especially within the Department of the Interior. In some cases, Congressional mandates are simply ignored. In light of the expenditure of millions of dollars and the serious issues involved in restoration, accountability must be improved.

** Stalled Critical Projects -- Many critical projects, which could move forward, are stalled due to agency disputes or incompetence (especially from agencies of the Department of the Interior).

** Parochial Approach (Rather Than System-wide) -- Many agencies (particularly Department of the Interior agencies) seek only to protect their piece of the Everglades ecosystem (whether it be geographic, such as the Everglades National Park, or subject-matter, such as a single species), deliberately sacrificing other parts of the Everglades. These agencies readily discriminate against state- owned and tribally-owned Everglades, despite the Congressional and Florida legislative mandate that these areas be preserved in their "natural state."

** Insufficient Attention to Water Quality -- Water quality issues too often receive limited attention because of the unwarranted assumption that programs already in place will solve such problems, while the programs in place lack any concrete plans for reaching long-term water quality standards.

** Pro Forma Use of Task Force -- The Task Force seems to serve the main purpose of giving the appearance of oversight or coordination, while avoiding serious matters and defects in the restoration process.

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ILLUSTRATIONS OF PROBLEMS IN THE REPORT AND EVERGLADES RESTORATION

Many areas of the Task Force Report imply progress while ignoring serious problems. Several illustrations follow --

** Everglades Stormwater Treatment Areas (STAS) -- The STA discussion (p. 8) ignores several important facts:

(i) The STAs are behind schedule by as much as six years from the dates originally committed by the FDEP and the Water District, and as much as I V2years behind the "new" schedule.

(ii) The STAs are only designed to reach an interim standard of water quality which by itself is demonstrably insufficient to save the Everglades e.g., five times higher in phosphorus content than the Everglades can tolerate).

(iii) There is no plan or program for reaching final water quality standards necessary for preserving the Everglades.

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East Everglades Addition to Everglades National Park -- The discussion of the East Everglades addition area (p. 8) ignores many essential background facts.

Delay: The Report ignores the failure of the DOI to acquire the expansion area by 1994, which is the date specified in the 1989 Park Expansion Act (sponsored by Congressman Fascell) and promised by the National Park Service. Ten years after the passage of the Act, the DOI has acquired less than 29% of the land in private ownership. The private homes that the DOI has purchased (in the Park expansion area under the 1989 Fascell Act) for the purpose of restoring water flow into northeast Shark River Slough still stand. Instead of removing these homes, these properties are being used as housing by various agencies.

This home in the Everglades Expansion Area was purchased by DOI from Mr. Hernandez for $770,000 for the purpose of restoring water flow in northeast Shark River Slough. The house is currently utilized by both the National Park and Fire Services. Why is the same building from which citizens were removed now okay for NPS use?

This home in the Everglades Expansion Area was purchased by DOI from Mr. Heck for $200,000 for the purpose of restoring water flow in northeast Shark River Slough. The house is currently being used as housing by National Park Service rangers. Apparently the environmental impact of the house disappeared when it became occupied by NPS rangers.

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Destructive Flooding: The failure to implement the Modified Water Deliveries Project, as directed in the 1989 Act, has caused and is continuing to cause destructive flooding in the Everglades to the north of the Park, especially in the State-owned and Tribal- owned Everglades, with loss of wildlife, tree islands, and other habitat types.

Congress and the Florida Legislature have agreed that the Everglades north of the Park should be preserved in their "natural state."

Lack of Accountability: There appears to be no accountability for this delay and this destruction; and the federal government appears to have little or no concern for the negative impacts of its actions or inaction on the non-federal (but equally significant) non-federal Everglades.

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** Modified Water Deliveries to the Everglades National Park Project --

The discussion of Modified Water Deliveries (p. 9) ignores the inexcusable failure to implement the Modified Water Deliveries Project, as mandated by the 1989 Congressional Act and finalized through the NEPA and the EIS processes, and ignores the destruction of the Everglades associated with the Project. This delay and destruction should be reviewed by Congress.

So-called "Progress": The discussion of Modified Water Deliveries (p. 9) reports that "the construction of two new control structures... which will restore more natural water deliveries... is 95% complete." But these are the least of the projects needed to implement Modified Water Deliveries. The essential elements of the Modified Water Deliveries Project- mandated by the 1989 Act are far from complete. Modified Water Deliveries is drastically stalled in a bureaucratic tangle of selfish agencies, each refusing to cooperate in implementing the project, while the Everglades to the north and west are being choked by the flooding that Modified Water Deliveries was designed to remedy.

 This photo illustrates the human induced flooding occurring on the Miccosukee Tribal Land that killed 85% of the deer population and damaged many of the tree islands. Modified Water Deliveries, mandated by the 1989 Congressional Act, would have significantly reduced this problem, but the Interior Department and local sponsor refuse to implement the congressionally directed plan.

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The 8.5 Square Mile Area (SMA): The reference to the "8.5 SMA" (p. IO) is misleading at best and just plain wrong at worst. The "recent study" referred to did not find (as the Report claims) that "complete buyout was the most cost effective ......

Instead, the study by the Water District hydrologist consultant found that the Corps plan (not buyout), as mandated in the 1989 Act, served restoration goals as well as any other alternative. The hydrologist's report took almost three years of work and was subject to public hearing scrutiny (unlike the buyout plan).

Likewise, three commissions and committees, one appointed by each of the last three Florida Governors and each subject to public hearing scrutiny, each recommended against acquiring the area. Furthermore, the Congressionally-mandated "Corps plan" for the 8.5 SMA had been finalized through the NEPA and the EIS processes in 1992 (with Park agreement); the General Design Memorandum properly submitted to Congressional committees; and the Project Cooperation Agreement (contract) for building the project signed in 1994.

But agency bureaucrats did not like the public results (of the NEPA process, the Governors' commissions, or the 1998 District consulting hydrologist), so they used a closed staff group in late 1998 after the public hearings and reviews. They claimed (incorrectly) that the closed staff group was not subject to the various Sunshine laws (so that meetings could be held without notice and public review), to issue their own recommendation in less than 60 days following the public reviews of the main study with which they disagreed (without disputing the hydrologic facts of the main study).

Thereafter, ignoring project priority lists and the Water District's own admissions that acquisition of the area was not necessary for restoration of the Everglades, the DOI committed federal money for one-half of the local sponsors cost of this otherwise "locally-preferred option." The DOI acted to commit federal money without following the National Environmental Policy Act (without an EIS), ignoring the Everglades project priority lists (which has never contained any proposal to buyout the area), without even consulting the Task Force, ignoring the federal requirement that the local agency pay 100% of the cost of a locally-preferred option, and in contravention of the finalized NEPA-approved and EIS-reviewed decision of 1992 and the 1989 Congressional Act.

The property owners in the 8.5 SMA will never willingly' sell their property and the property rights and political issues involved in forced acquisition (condemnation) will delay the project for decades, or perhaps, forever. Such action is unconscionable when buyout has been rejected by three Florida Governors and the Water District's own consultant. The illicit procedures used by agencies to force a policy they prefer against the demonstrated good of the Everglades, against the rights of property owners and the Miccosukee Tribe, and against the NEPA process, should be thoroughly investigated by Congress. The 8.5 SMA issue and agency disregard of NEPA and the 1989 Act are ripe for congressional review.

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Need for Congressional Review: The Modified Water Deliveries Project will sit idle until DOI completes acquisition of the Park Expansion Area (vacant land to be added to the Park, which was supposed to be acquired under the 1989 Act no later than 1994) and until the Congressionally-directed and NEPA-approved Corps plan for the 8.5 SMA is implemented (as directed by the 1989 Act). The Modified Water Deliveries Project is the single most important project for the preservation of the southern and central Everglades.

The central Everglades (the Water Conservation Areas to the north of the Park, owned by Florida and the Miccosukee Tribe) are negatively impacted by flooding caused by the failure to implement the Project, in addition to negative impacts within the Park itself.

The Modified Water Deliveries Project could and should have been implemented and operating already. The refusal or inability of the responsible agencies to execute this project, as directed by Congress and approved through the NEPA process, raises serious questions about the ability of the same agencies to handle the overall restoration projects. Congress must seriously analyze the failure of Modified Water Deliveries, with a view toward expediting the NEPA-approved Project, holding agencies accountable for the extensive damage caused by the delay, and reorganizing Everglades restoration responsibilities so as to avoid such failures in the future.

This is a photograph of a home in the 8.5 SMA that was purchased by the South Florida Water Management District for $240,000 and subsequently demolished. Again, the 8.5 SMA is not required for the restoration of the Everglades; it is not in northeast Shark River Slough. Why, then, was this home taken away from its owners and destroyed?

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** C-111 Project -- The discussion of the C-1 I I Project on p. 10 ignores the fact that

the S332D pump station was completed on an expedited schedule in 1997 at the request of Everglades National Park. The pump was to be put into immediate operation. A major ceremony with media coverage was held to demonstrate "progress" in Everglades restoration. But thereafter the station has sat unused since 1997. Today, the pump is still not operating as intended. It is not reestablishing more natural flows to Taylor Slough nor increasing needed water deliveries to Florida Bay. As with so many other restoration" matters, the press conference was more important than the successful completion of the mission.

 Pictured is Billy Cypress, Chairman of the Miccosukee Tribe of Indians and Congressman Dante Fascell at the S332D groundbreaking celebration held on January 10, 1997.

At this ceremony, Congressman

 Fascell (who passed away this fall) stated "I just want to take a minute to perhaps undergird where we are today, seems like to me we've been discussing the same thing for about 50 years, or maybe longer, I don't know... But for a long time we just had one group fighting another group and those of us who were caught in the middle trying to even out these various pressures, found it almost impossible to make a lot of progress... There is only one way to get this thing done, and that is for everybody to work together-- the government, the people, well we're all the people whether we're in the government or out of the government, we're all the same. You should never make that distinction, frankly I think it's a mistake."

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** Everglades Construction Project -- The discussion of the Everglades Construction Project (ECP) (p. 10) overlooks:

These are photos of the Everglades National Park Nutrient Dosing Study -- the objective of which was to determine the impact of small nutrient doses on the aquatic system. The top photo (11/11/82) shows the pre- nutrient addition natural wet prairie community within shark slough, at Everglades National Park. Pre-Dose plants are Utricularia spp, and Eleocharis sp. Study flow-through channels are 100 meters long. Note natural periphyton (algae) community at water surface.

The bottom photo (10/6/84) shows the plant community response after one year of 27 parts per billion (ppb) phosphorus addition to left channel, 18 months of phosphorus (28 ppb) and nitrogen (85 ppb) addition to middle channel, and nitrogen only addition (85 ppb) to right channel. Utricularia was eliminated, and P-dosed channels became dominated by dense stands of Sagittaria spp and Panicum sp. Plant P content was also changed. Nutrient effects extend over 200 meters downstream from the point of addition. Background concentrations during the study averaged 6 ppb phosphate and 11 ppb nitrate.

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** Multi-Species Recovery Plan -- The commitment to a so-called "multi- species" recovery plan is in name only. The USFWS knows better than to admit to single-species focus, but its basic work focuses on one species (the Cape Sable Sparrow), while ignoring endangered species in the Everglades. The defects of the FWS' Cape Sable

Sparrow draft biological opinion letters include:

1. a weak or often erroneous scientific base, ignoring recognized experts in the field, and little or no relevant data; and
2. unrealistic and often illegal "reasonable and prudent alternatives", which endanger other species and destroy other parts of the Everglades (the non- federal parts).

The reckless use of the Endangered Species Act as a tool to ignore the rights of others and the duties of DOI agencies to coordinate and cooperate with other federal, state Tribal governments, should be reviewed by Congress. The Act should be amended to restrict this irresponsible exercise of unbridled power.

** Southern Everglades Restoration Alliance -- The Southern Restoration Alliance (SERA), discussed on p. 16, has provided little positive impact and in fact is often used by federal agencies to mask their decisions as publicly-based. SERA has no statutory basis but serves nonetheless to allow agencies to claim that their decisions were "reviewed" and "approved." What really occurs is that the same bureaucrats who reach the decision in the first place just sit around and confirm that (unsurprisingly) they were right all along! In other words, SERA serves as a "cover" or "front" group to evade legally-mandated public other involvement and review processes, such as NEPA.

** Natural Systems Model -- While everyone generally favors restoring the natural system" as much as possible, and the "Natural System Model" (NSM) (p. 17) is useful as an analytic tool, it is important to note that the implications and use of NSM are far from non- controversial. One area of dispute is in the use of NSM sea-level measurements. Because much of the present Everglades land surface is far below historic levels, the use of sea level measurements for surface water can produce far deeper water bodies than in the historic

Everglades. Such deep water is not "natural" and can produce many negative consequences, even though the surface levels are the same relative to historic and sea-level measurements as used by the NSM.

In other words, the citation of NSM in support of one element of restoration does not in fact establish that "natural" conditions are being achieved. In fact, use of NSM for one element or measurement can produce very positive "unnatural conditions", such as very deep water. The Parks partial use of NSM often produces such unnatural and damaging conditions, especially on lands outside the Park (but also within the Park). The Task Force Report should reflect that the use of NSM only begins a debate, and certainly does not end it.

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** Everglades Interim Report -- As claimed on p. 17, the Water District's Everglades Interim Report is indeed a "key science review" and a very valuable document. In fact, the Interim Report confirms that the Everglades is dying and cannot sustain itself with the poor quality of water which it is receiving. The Task Force Report illustrates the unfortunate fact that science alone, no matter how clear its findings, cannot force policy if the policy-makers are unwilling. Every person interested in Everglades restoration should review the Everglades Interim Report (especially pages, 3-1, 3-2, 3-32, 3-33) and then ask, "What are we doing about these findings?" Because the Interim Report shows that water containing more than IO ppb phosphorus will destroy the Everglades, and the Everglades Construction Project is designed to deliver 50 ppb phosphorus water, the implications of this "key science review" are too clear to ignore. But like many government agencies, the Task Force simply "compliments" the Interim Report but draws no "action" conclusions from it.

These Miccosukee children are sitting under a chickee on a tree island listening to a Tribal elder explain the devastating damage that is taking place on Tribal Everglades lands because of the failure to implement restoration plans. The elders conduct an Everglades study twice a year to survey changes in the 280,000 acres of the Everglades that the Tribe manages.

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THE FUTURE

The Task Force Report seeks broad authorization for future projects, referring to a "partnership." Several points in this regard follow.

** Importance of Legislative Oversight -- While Congress and the Florida Legislature should continue broad policy and financial support for Everglades restoration, each legislature should be careful to avoid enacting unrestricted authorizations. The past record in Everglades restoration reflects that unbridled authorizations carry with them the danger of agency deviations in implementation.

** System-Wide Approach -- Both Congress and the Florida Legislature should ensure that the entire Everglades, including State-owned and Tribal-owned Everglades as well as federal-owned Everglades, is protected. The parochial division of the Everglades, with State and Tribal lands receiving second-class status, must end.

** Tribal Relations -- The Task Force Report asserts that the Miccosukee Indians are "valued ecosystem partners" and envisions "Continuing to work together amicably" (p. 22). From the Miccosukee perspective, however, the record reflects ignoring Tribal interests, giving second-class status to Tribal lands, and making decisions without consultation. So far, the DOI does little more than ask the Tribe to be "partners" in its own demise, and to accept "amicably" its second-class status. The Tribe's interests in the entire Everglades are the same as the public's interests, and the Tribe's struggle to save the whole Everglades will be recognized by the general public as a key element in the eventual restoration of the entire Everglades ecosystem.

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CONCLUSION

Congress and the Florida Legislature stand on the threshold of saving the Everglades, a goal well worth the effort and expense. Each Legislature should strongly and unreservedly support these restoration efforts, but the problems with agency implementation and accountability must be addressed, rather than ignored, if the goal is to be achieved.

"The River of Grass is a world of beauty and life... and the

world and life of the Miccosukee. "

"The Indians, before anyone else, knew that the Everglades were being destroyed."

Marjory Stoneman Douglas, The Everglades River of Grass, 1947.

Pioneer conservationist and author, Marjory Stoneman Douglas, who passed away last year,at 108 years of age, is pictured with a Miccosukee Indian in the Everglades.

Please help the Miccosukee Tribe of Indians of Florida stop the Everglades from being destroyed. We must all work together to protect and restore the "River of Grass" for future generations.
Thank you.

Photo by the Miami Herald, 1965.

For more information regarding this report, please contact:
Mr. Dexter Lehtinen, General Counsel to the Miccosukee Tribe of Indians of Florida
Lehtinen, O'Donnell, Vargas & Reiner, 7700 N. Kendall Drive, Suite 303
Miami, Florida 33156 (305-279-3353)

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