WERP may impact private lands in Big Cypress

Did two federal agencies try to find a way to use a state agency to obtain private property by eminent domain for the Western Everglades Restoration Project (WERP)?

An April 15, 2019 memorandum from Shannon L. Goessling, of the United States Department of the Interior, Office of the Solicitor Southeast Regional Office in Atlanta, to Pedro Ramos, superintendent of Everglades National Park, with the subject line, “Authority to condemn private lands in Big Cypress National Preserve (BICY) to further U.S. Army Corps of Engineers-sponsored hydrologic restoration project,” has sparked some controversy.

In the memo, Ms. Goessling responds to three questions about the legal issues involved in obtaining privately owned land in the Big Cypress Preserve for WERP.

The memo states: “NPS (National Park Service) is familiar with WERP and knows of the corps’ interest in having its questions answered. However, NPS also believes that it is premature to explore land acquisition, especially through condemnation, too deeply, creating public concern and political complications, until modeling data indicate that acquisition of the inholding is necessary to implement WERP. In contrast, the corps believes that without knowing whether acquisition is an option, it would not be prudent to undertake modeling, which is expensive. Although NPS believes it already knows the answers to the corps’ questions, it is willing for the Solicitor’s Office to respond to the corps, but in doing so restate the need to be cautious in making the answers public.”

The questions, and responses are:

  1. May South Florida Water Management District (SFWMD) acquire by condemnation unimproved, privately owned inholdings within BICY, and would National Park Service (NPS) accept their reconveyance to the United States?
    Ms. Goessling’s answer: “Assuming that SFWMD has independent authority to acquire private property in BICY, including by condemnation, nothing in BICY’s enabling legislation prohibits NPS from then receiving unimproved property from SFWMD by donation. Because the United States may acquire unimproved property by a variety of means, including condemnation, no concern would arise that the United States would be letting a third party (i.e.,
    SFWMD) acquire property by a method that the United States itself may not use.”
  2. May SFWMD acquire by condemnation improved, privately owned inholdings within BICY, and would NPS accept their reconveyance?
    Ms. Goessling’s answer: “Again assuming that SFWMD has independent authority to acquire private property in BICY for its own purposes through condemnation, there is no reason to think that authority would not include improved property. However, we see a problem with NPS then receiving the improved property by donation from SFWMD. Even if each stage of the transaction is within each agency’s legal authority, the transaction as a whole would amount to NPS acquiring improved property in BICY through condemnation, and unless the property had lost its exemption or was subject to a detrimental use (see below), would violate the spirit of the enabling legislation. NPS should not accept such properties.”
  3. Is there an existing level of service of flood protection in BICY, especially for improved properties?
    Ms, Goessling’s answer: “Question 3 is one of fact, not of law. NPS advises that there is no “level of service” for flood protection in BICY. No private inholdings (improved or otherwise) receive any more flood protection than the rest of BICY, i.e., none.”

At the July 17 Florida Fish and Wildlife Conservation Commission meeting in Stuart, Thomas Van Note of the South Florida Chapter Safari International stated “We are concerned of the language within this memorandum where they say they want to keep this quiet we want to be careful how we share this information.

Special to the Lake Okeechobee News/SFWMD
The Western Everglades Restoration Project (WERP), part of the Comprehensive Everglades Restoration Plan (CERP), will change some flow and improve sheetflow of water in the western Everglades, according to information shared in October 2018 at a meeting of the Big Cypress Basin board.

“This is very concerning to us, not only about the privacy part but about flooding the 14 to 16 additional inches in the WERP,” he continued.

“What it will do the flora and fauna?” asked Mr. Van Note. “It will be catastrophic. To do it as a means of condemning private stakeholders property, that’s scary stuff. We fear this is something that may go forward and set a precedent for around the country.”

In a July 16 telephone interview, Steve Collins, SFWMD Real Estate Office division director, said various options for WERP are still under consideration, so the SFWMD Real Estate Office is not yet involved. He said until a plan is selected, SFWMD will not consider potential real estate acquisitions for the project.

In response to the Lake Okeechobee News’ request for information, on July 18, Jim Yocum with the U.S. Army Corps of Engineers Jacksonville District said currently, the intent is to have a draft tentatively selected plan for public comment sometime in summer of 2020.

“The U.S. Army Corps of Engineers and our partner agencies continue to explore possible options for meeting the goals and objectives of the Western Everglades Restoration Project.  As such, the team is conducting research that can be used to inform a potential plan.  When a potential plan is identified, we will make it available for stakeholders across the region to review and comment. At this point, it’s premature to describe what a potential plan might contain and what the water footprint might be. Those are the items the team is researching,” Mr. Yocum stated.

Publisher/Editor Katrina Elsken can be reached at kelsken@newszap.com

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