EAA reservoir land involved in lawsuit

SOUTH FLORIDA — Land designated for the future Everglades Agricultural (EAA) reservoir is once again involved in a lawsuit. Florida Wildlife Federation Inc. has filed a legal challenge to the South Florida Water Management Governing Board’s decision to lease most of the land for sugar farming for at least two years.

The SFWMD Governing Board voted Nov. 8 to approve an eight-year lease extension with Florida Crystals on 16,150 acres of state land designated as the future site of the EAA reservoir. After 20 months, SFWMD can terminate the lease with four months’ notice, if the U.S. Army Corps of Engineers is ready to start construction of the reservoir. The agreement immediately terminated the lease on 560 acres of state land; Within a week, SFWMD had already started site work, bulldozing sugar cane fields. The 560 acres will be used for storage of rocks mined for use in the giant reservoir’s dike, which will be about the same height at the Herbert Hoover Dike around Lake Okeechobee.

The lease agreement can be terminated by the state after 20 months with four months notice. The Corps has estimated design and engineering work will take about three years; SFWMD officials have given the “best case scenario” at a minimum of two years. During those two years, SFWMD will be stockpiling raw materials for the dike and conducting geological testing.

Design and engineering work for the massive reservoir project has not yet started. It will start as soon as the federal government appropriates the funding. The EAA reservoir plan has been approved by Congress and signed by the president, but it still awaits a federal funding allocation.

Time frame disputed

While SFWMD officials maintain the lease changes speed construction of the reservoir because it gave them the opportunity to start mining rocks immediately, Everglades Foundation CEO Eric Eikenberg disputes SFWMD and USACOE estimates on the time frame needed to design the reservoir. Mr. Eikenberg has claimed the reservoir could be designed and built in just four years.

“The people need immediate relief from the conditions causing perennial toxic algae blooms that are killing Floridians and destroying our economy. We need access to this acreage for site preparation and construction — now, not two years from now,” he stated in a Nov. 9 press release.

On Nov. 28, the Florida Wildlife Federation Inc. and Marty Baum filed a lawsuit against the South Florida Water Management District challenging the lease agreement. The lawsuit claims SFWMD violated state law regarding public notice prior to the governing board’s decision about the lease.

“As a result of the District’s decision to issue the New Lease, 16,158 acres of EAA reservoir lands will be used for agriculture for the next two years (and for as long as eight years) rather than for the purpose of construction of a reservoir,” the lawsuit alleges.

Yet another lawsuit

Another lawsuit filed earlier this year by the Florida Wildlife Federation could also impact construction of the EAA reservoir. This lawsuit is over use of the Land Acquisition Trust Fund. Under Senate Bill 10, the State of Florida plans to take $64 million a year out of the Land Acquisition Trust Fund and use that money for reservoir bonding of $800 million. The federation sued the state over the way the state is using the money, SFWMD General Counsel Brian Accardo explained at the Nov. 8 Governing Board meeting, He said the argument is that when a lot of people voted for the 2014 constitutional amendment to create the Land Acquisition Trust Fund, the money was supposed to be used for acquiring land or improving land, such as restoration projects.

“The environmentalists received a favorable ruling in June,” he said. A circuit court judge in Tallahassee ruled that the Land Acquisition Trust Fund can only be used for acquisition of new land and can only be used for improving land purchased after 2015. “That kills this reservoir, because that land we are going to construct this reservoir on was acquired decades ago. The state has appealed the ruling, and it will go to an appeals court,” he said.

SFWMD responds to lawsuits

On Nov. 29, SFWMD responded to news of the latest lawsuit in a press release.

“A legal challenge filed yesterday by the Florida Wildlife Federation is not at all surprising.

Trying to prevent the District from expediting and completing the EAA Storage Reservoir is consistent with the Florida Wildlife Federation’s prior actions. This is the same group that filed another lawsuit against the state and Sen. Joe Negron – the biggest champion of the EAA Storage Reservoir – seeking to block the Florida Legislature from using Amendment 1 funds to build restoration projects. If ultimately successful in their attempt, the Florida Wildlife Federation’s actions could halt the District’s restoration efforts on approximately 1 million acres of public land acquired using more than $1.5 billion of taxpayer dollars.

“Furthermore, this group celebrated a judge’s ruling restricting the use of Amendment 1 funds on lands long held on the public’s behalf. An attorney, representing the Florida Wildlife Federation, even brazenly told news outlet Politico that ‘a large number of Everglades restoration projects, such as a proposed reservoir south of Lake Okeechobee, no longer can be funded with Amendment 1 revenue.’

“The Florida Legislature represents 21 million Floridians. The Florida Wildlife Federation touts a membership of 14,000 people. The Florida Legislature directed that construction of the EAA Storage Reservoir be expedited using Amendment 1 funds and compromised that the land remain agricultural before reservoir construction is ready to proceed. With the District Governing Board approving an agreement to allow crucial geotechnical and rock staging work to begin on the reservoir this month, why would a special interest group attack the very funding stream and legislative compromise needed to expedite the reservoir desired by so many?

“The next step in the legal process is for the District to evaluate the Florida Wildlife Federation’s legal petition,” states the SFWMD press release. “Florida law requires that the District carefully review the legal petition to determine whether it substantially complies with Florida’s Administrative Procedures Act.”
At the Dec. 6 meeting of the Water Resources Analysis Coalition, SFWMD will discuss facts surrounding the EAA reservoir progress and leases. The meeting will be held at SFWMD Headquarters, 3301 Gun Club Road in West Palm Beach, starting at 9 a.m.

Senate Bill 10

SFWMD officials say they are following state law. Florida Senate Bill 10, passed in 2017, requires the land stay in agricultural use until the Corps is ready to start construction of the reservoir.

In addition, without the changes they would not have been able to take back possession of the 560 acres they are now clearing to store construction materials until March, which would have meant losing most of the dry season.

“We are moving at lightning speed while fulfilling all the requirements of state law because we know how important this project is to the residents we serve,” said SFWMD Governing Board Chairman Federico Fernandez on Nov. 14, as heavy machinery leveled a field of young sugar cane. “Many times, it can take years to build restoration projects due to unforeseen obstacles and delays. Today, heavy equipment is moving and construction is underway to deliver the reservoir Florida has promised to its taxpayers as soon as possible.”

He said the lease agreement, which returned 560 acres to the state immediately, will speed up construction. Waiting until March, when the lease expired, would have meant losing the opportunity to work during most this year’s dry season.

“We are dependent on Mother Nature. We’re in the dry season. Every day that we’re not out here is a day we don’t move forward,” he explained.

Land used to grow sugar and rice

Florida Crystals has been farming the land in question to grow sugar cane and rice since 1998. In addition to sugarcane, this site has produced 31 million pounds of rice over the past 5 years.

“The transitional lease follows the Florida Legislature’s direction in Senate Bill 10 to keep land in agriculture until it is needed for construction of the reservoir, then gives the district access to whatever land they need, as they need it, with only 120-days notice, “ said Gaston Cantens, Vice President of Florida Crystals Corporation. “In 2008, these same anti-farmer activist groups filed a lawsuit that derailed the EAA-A-1 reservoir for more than five years.

Now, not only are they trying to circumvent the Legislature’s intent in Senate Bill 10, but their new litigation will once again tie the EAA reservoir up in court and add more delays, just like they did a decade ago.”

Under the terms of the extended lease, Florida Crystals will pay the state about $1 million a year – money that is used to combat invasive species in the Loxahatchee Wildlife Refuge.

As long as it is leased, Florida Crystals will also pay property taxes on the land to Palm Beach County.

As land is needed for construction of the EAA reservoir, the transitional lease enables the SFWMD to continue to take land on a field-by-field basis.

According to Eva Velez, SFWMD Director of Everglades Policy, keeping the land in agricultural use also means the farmer will maintain the property. Once SFWMD takes possession, the state is responsible for maintenance. In South Florida, vacant land may be quickly overgrown with invasive plants.

Cane cleans the water

According to University of Florida’s Institute of Food and Agricultural Sciences (UF/IFAS) regional sugarcane extension agent Stewart Swanson, sugar cane is a “nutrient sink” – the crop removes phosphorus from the watershed. He said water leaving a sugar cane field is lower in phosphorus than the lake water used to irrigate the cane. Because the “black gold” soil of the EAA is already high in phosphorus, little or no fertilizer is required. (For example, a farmer might fertilize with 5 pounds of phosphorus per acre, and when the crop is harvested, it removes 21 pounds of phosphorus per acre.) He said the phosphorus levels are higher in the runoff from unfertilized fallow fields than from fertilized fields of cane.

Mr. Swanson added that sugar cane has the lowest requirements of nutrients for many crops grown in south Florida, only requiring a fraction of the nitrogen and phosphorus compared to a vegetable or citrus crop.

Another lawsuit stopped first EAA reservoir

It’s not the first time the property has been the subject of a lawsuit. In 2008, another lawsuit halted work on the first EAA reservoir project. The land was purchased about 20 years ago with that reservoir in mind.

The SFWMD Everglades Consolidated report from 2001 tells the story of the Talisman Sugar Co, property. The purchase agreement between Talisman Sugar Co., the U.S. Department of the Interior and The Nature Conservancy was funded by a cooperative agreement between the Interior, TNC and the SFWMD. Talisman committed to selling its entire holdings in the EAA, totaling approximately 53,500 acres.

A second agreement involved the SFWMD, Interior, TNC, Talisman and Sugar Interests, including U.S. Sugar Co., Florida Crystals and the Florida Sugar Cane Growers Cooperative (referred to in the report as “the Sugar Interests”). Through this agreement, the SFWMD would acquire approximately 21,000 acres directly from Talisman and approximately 29,000 acres from the Sugar Interests in exchange for Talisman conveying to the Sugar Interests the balance of the Talisman land. The Sugar Interests reserved use of the Talisman and Sugar Interest lands for sugar cane farming prior to district project implementation. The Interior contributed funding for approximately $108 million, and SFWMD contributed approximately $38.5 million.

Over the years, funding has been a continual problem in the federal/state partnership to restore the Everglades, and as a result, projects have been repeatedly stalled. In 2004, under Florida Governor Jeb Bush’s administration, a plan was advanced to speed up some aspects of the Everglades Restoration. Projects moving to the head of the line included the EAA reservoir. Construction started in reservoir to hold 190,000 acre feet of water. But in 2007, a group of environmentalists filed a lawsuit. Work on the reservoir was suspended. By the time the lawsuit was dropped, Governor Charlie Crist was in office. Gov. Crist had his own ideas for the area, and pushed a $1.75 billion River of Grass deal to buy up land held by U.S. Sugar. The state could not afford both plans.
In the end, neither plan progressed.

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