As late as the 1800s, the Everglades consisted of a 60-mile wide shallow river, seldom more than 2 feet deep, flowing from Lake Okeechobee to Florida Bay. That was before the U.S. Army Corps of Engineers erected 1,400 miles of dikes, dams, levees and water control structures in the name of water supply and flood control. Now in the year 2000, more than fifty years after Marjorie Stoneman Douglas wrote about the demise of the Everglades, only 2.4 million acres of Everglades remain - about one third of the original Everglades ecosystem. Lake Okeechobee is likewise experiencing adverse ecological impacts. Florida is now at a turning point, ready to begin reversing the effects of massive wetlands drainage, damage to our estuaries and loss of valuable water storage areas. [1]  Simply put, a replumbing of the water works which makes central and southern Florida habitable for humans is being proposed.

     With an $8 billion dollar price tag, the Central and Southern Florida Project Comprehensive Review Study, or Comprehensive Everglades Restoration Plan (CERP) as it is now known, is one of the most ambitious environmental restoration initiatives ever undertaken anywhere in the world. The intent of the CERP is to restore and preserve South Florida's natural ecosystems, including the internationally renowned Everglades and Lake Okeechobee, while protecting and enhancing water supplies and flood control. [2] This undertaking, an unprecedented federal-state partnership, involves an impressive array of scientists, engineers, policymakers, and other professionals from federal, state, regional, and tribal governments working to develop a conceptual road map for environmental restoration.

     In 1999, the Florida Legislature passed a landmark piece of legislation requiring, among other things, that the state review and approve each critical step of the CERP before it is implemented. The 2000 Legislature demonstrated its continued strong interest in the Everglades, as well as Lake Okeechobee.

THE EVERGLADES RESTORATION INVESTMENT ACT (HB 221) Chapter 2000-129, Laws of Florida

     Signed into law by Governor Jeb Bush on May 16, 2000, HB 221 creates the Everglades Restoration Investment Act. The Act constitutes a watershed event in the saga of Everglades restoration. Approximately $100 million in dedicated state annual funding - coupled with funding from the South Florida Water Management District (SFWMD) and other local entities, comprises the local sponsor's share of the $8 billion CERP price tag over the next 20 years.


Legislative Intent

     Providing strong legislative intent, the Act prescribes that implementation of CERP will be "full and equal partnership" between the state and federal governments. The CERP, under the Act, is to be used as a "guide and framework" for a continuing planning process. The Act pays homage to the importance of, and need for, protection of water quality in the Everglades and the reduction of the loss of fresh water from the Everglades. Recognizing that the CERP should not just be an environmental restoration plan, the Act provides that CERP features should also meet other water-related needs of the region including flood control, enhancement of water supplies and other objectives of the project.

Project Implementation Reports

     The Act requires the SFWMD, in cooperation with the Corps, to complete a Project Implementation Report (which may ultimately be submitted to Congress) to:

(a) address each of the project component features that were mandated in last year's law (see Section 373.1501, F.S.) including such things as its economic and environmental benefits and engineering feasibility. 

(b) identify the increase in water supplies resulting from the project component. These additional water supplies are to be allocated (permitted) or reserved for environmental purposes pursuant to Chapter 373.

Funding Scheme

     To finance implementation of the CERP, the Act authorizes several vehicles which generate funds to be deposited into the Save Our Everglades Trust Fund. The Act funds the Save Our Everglades Trust Fund as follows:

(a) For FY 2000/2001 only, $50 million from state funds and $30 million from interest payments on unexpended Preservation 2000 allocations,

(b) Beginning FY 2001/2002 for 9 consecutive years, $75 million from state funds, 

(c) Beginning FY 2000/2001 for 10 consecutive years, $25 million of the SFWMD's 35% of funds from the Florida Forever Act. 
Although not stated in law, the Department of Environmental Protection (DEP) anticipates spending approximately $23 million annually on land acquisitions that will be credited towards the CERP. 

     The day before session ended, a paragraph was inserted into the bill which underscores existing law by specifically authorizing DEP during FY 2000/2001 to seek additional spending authority to transfer surpluses from other trust funds into the Save our Everglades Trust Fund. This provision became important to numerous south Florida legislators because it allows DEP to supplement the trust fund if there is a belief it is necessary to give the federal government the appropriate assurances to pass the federal legislation. 
In addition, Congressional funds appropriated for implementation of CERP, additional funds appropriated by the Florida legislature for implementation of CERP, and gifts designated for implementation of CERP are authorized for inclusion in the Trust Fund.

      Distribution of funds from the Save Our Everglades Trust Fund to the SFWMD must be in accordance with legislative appropriations. This year's Appropriations Act (HB 2145) allows the SFWMD to use the Trust Fund for land acquisitions so long as they are on its approved 5-year plan of acquisition (Save Our River's Report). Before additional funds can be released, DEP must first approve the project component.

     The Act requires that at the end of 10 years, distributions from the trust fund must be matched by the cumulative contributions from all local sponsors. These contributions can come in the form of funds as well as credits for work performed for project components. 
Annual Reports

     The Act requires the SFWMD in cooperation with DEP to submit an annual report, beginning November 30, 2000, to the Governor, the President of the Senate and the Speaker of the House of Representatives. The focus of this report is to provide detailed information on implementation of the CERP. For example, the report must: (a) itemize by source and amount, the expenditures made by the state and each local sponsor during the fiscal year; (b) describe the purpose for the expenditures; (c) provide a schedule of anticipated expenditures for next fiscal year; and (d) describe the progress made in implementing the CERP, including providing a status report of all project components initiated after June 30, 2000, or after the last report. 

     In turn, DEP is required to prepare a detailed report on all funds expended by the state and credited toward the state's share for implementing CERP and describe the purposes for which the funds were spent. 

THE LAKE OKEECHOBEE PROTECTION ACT (HB 991)
Chapter 2000-130, Laws of Florida

     The Lake Okeechobee Act provides a critical first step in addressing the health of the second largest freshwater lake in the continental United States. The Act establishes a comprehensive long-term program to restore and protect Lake Okeechobee and downstream receiving waters. Three agencies are charged with implementing the Act - DEP, the Department of Agriculture and Consumer Services (DACS), and the SFWMD. The Act is similar in scope and approach to the Everglades Forever Act (see Section 373.4592, F.S.)

     The Act broadly establishes the Lake Okeechobee Protection Program and Lake Okeechobee Protection Permits. 

Lake Okeechobee Protection Program 

     The Lake Okeechobee Protection Program consists of numerous parts. It phases in phosphorus load reductions by requiring: (a) construction of stormwater and other detention treatment areas, (b) detailed evaluation and monitoring of the water quality in the watershed, (c) development of "best management practices" for all non-point sources, (d) implementation of measures to protect native flora and fauna, and (e) a study to assess ways to reduce the phosphorus loads within Lake Okeechobee followed by implementation of the findings. Provided below is a synopsis of each part of the program. 

(a) Lake Okeechobee Protection Plan

     By January 1, 2004, the SFWMD, in cooperation with DEP and DACS, is to complete a Lake Okeechobee Protection Plan that provides an implementation schedule describing how all applicable water quality standards, particularly for phosphorus, in Lake Okeechobee and downstream receiving waters will be reduced or met. This comprehensive plan must incorporate information gathered in the other Lake Okeechobee related programs identified in the law, including phase I of the Construction Project, the Watershed Phosphorus Control Program, the Research and Water Quality Monitoring Program, as well as the Internal Phosphorus Management Program. 

(b) Lake Okeechobee Construction Project

    The Lake Okeechobee Construction Project consists of two phases. The first phase provides an action plan encouraging immediate construction of stormwater treatment areas to reduce phosphorus loads in priority basins going into Lake Okeechobee. These projects are to be completed by 2004.

     Phase II of the Construction Project includes the construction of additional treatment facilities by the SFWMD to reduce phosphorus loading into Lake Okeechobee. The Lake Okeechobee Construction Project authorized under this Act must be designed to achieve a water quality standard of 40 parts per billion (ppb) for phosphorus, unless a total maximum daily load is established that is different. 

(c) Lake Okeechobee Watershed Phosphorus Control Program 

      This program is designed to improve the management of phosphorus loads by continuing implementation of existing regulations and by developing and implementing both agricultural and non-agricultural "best management practices" (BMPs). DACS is required to establish BMPs for agriculture. If a farmer implements a DACS-developed BMP plan, the law provides a rebuttable presumption that the farm is meeting applicable water quality standards. The SFWMD or DEP may still exercise regulatory authority, however, if it is shown the standards are not being met.
(b) Lake Okeechobee Research and Water Quality Monitoring Program 

     The SFWMD, in cooperation with DEP and DACS, is to complete an extensive research and monitoring program to provide the necessary information for the Lake Okeechobee Protection Plan. The report is to be issued by July 1, 2003. Among other things, this 
program will determine the relative contribution of phosphorus from all identifiable sources, including from the Upper Kissimmee Chain-of-Lakes and Lake Istokpoga. This program must evaluate the feasibility of incorporating technologies that will further reduce nutrient levels. 

(d) Lake Okeechobee Exotic Species Control Program 

     The coordinating agencies must identify the exotic species threatening the native flora and fauna and develop and implement measures to protect them by June 1, 2002. 

(e) Lake Okeechobee Internal Phosphorus Management Program

     As part of an initiative to reduce phosphorus within Lake Okeechobee, by July 1, 2003, the SFWMD, in cooperation with DEP and DACS, is to complete a feasibility study to determine if it is reasonable to remove phosphorus-laden sediments from the lake. If "feasible," a comprehensive sediment removal project is to be initiated.

(f) Annual Progress Report 

     The Act requires the SFWMD to submit an Annual Progress Report to the Governor and Legislature by January 1st. 

Lake Okeechobee Protection Permits

     Lake Okeechobee Protection Permits are established by the Act. With the exception of permits that might be required under the National Pollution Discharge Elimination System program, the permits required under this Act are in lieu of any permits required under Chapters 373 or 403, Florida Statutes. All water control structures discharging into or from Lake Okeechobee must obtain an operating permit from DEP. The SFWMD must apply for the necessary 5-year permits by September 1, 2000. 
By January 1, 2004, the SFWMD has to apply for a permit modification for its existing structures. The modifications will include proposed changes to ensure that discharges through the structures meet state water quality standards and the total maximum daily loads by no later than January 1, 2015. 

Funding

     The Appropriations Act contains a $38.5 million appropriation for Lake Okeechobee. Of that, $15 million is transferred to DACS for research, development, demonstration, and implementation of "BMPs and other measures" for Lake Okeechobee water quality improvement. The bill provides numerous examples of what practices might be included in the term "BMPs and other measures." The remaining $23.5 million is provided to the SFWMD to implement the Source Control Grant Program, to restore isolated wetlands, retrofit water control structures, and buy the Grassy Island Reservoir Assisted Stormwater Treatment Area. 


[*] John J. Fumero is the General Counsel of the South Florida Water Management District.

[1] U.S. Army Corps of Engineers and SFWMD, Central and Southern Florida Project Comprehensive Review Study Overview, October 1998, p. 18.

[2] U.S. Army Corps of Engineers & SFWMD, Central and Southern Florida Restudy Update, What is the Restudy?, Vol. 1, June 1998.