Miccosukee Tribe may fight EAA reservoir plan; Lease won’t hold up reservoir construction

OKEECHOBEE — Discussion of the Everglades Agricultural Area (EAA) Reservoir took some unexpected twists at the April 11 meeting of the South Florida Water Management District Governing Board. Based on the information provided at the meeting, the lease on the land won’t delay construction of the reservoir, but other issues could.

An explanation of the lease on the state-owned land that is the future site for the reservoir and stormwater treatment area (STA) was on the agenda for Thursday’s meeting.

On Wednesday, SFWMD received a letter from Florida Crystals volunteering to let SFWMD terminate the lease early if the corps was ready to start construction before Dec. 1, 2020.

Board member Jacqui Thurlow-Lippisch was skeptical about the letter from Alfonso Fanjul and J. Pepe Fanjul. “It’s all about what’s in the contract. It’s all about what’s written. A verbal offer means nothing,” she said.

Under the terms of the lease, Florida Crystals pays the state an annual rent $1,615,800 on the 16,158 acre property. In addition, they pay property taxes to Palm Beach County, and are responsible for maintaining the land to prevent infestation of invasive plants. The lease is for eight years, but the state can terminate it on a field-by-field basis after 20 months, with four months notice. The lease was signed in November 2018, so some of the initial 24 months have already passed. If the previous governing board had not negotiated the lease extension, the original lease would have expired this month. Senate Bill 10, which authorizes the EAA reservoir, requires the land be kept in agricultural use until construction starts on the project.

Vice Chairman Scott Wagner questioned the short summary provided by SFWMD staff about the lease conditions. He speculated that Florida Crystals could use conditions in the lease to delay turning over the land to the state.

Col. Andrew Kelly of the U.S. Army Corps of Engineers Jacksonville District said design and engineering of the massive reservoir — the largest CERP project to date — will take about three years. He said work to increase water conveyance and the stormwater treatment area (STA) could start sooner. He estimated the permits will take about 19 months.

That projected schedule would not be delayed by the existing lease, even without the voluntary help from the Fanjuls. The earliest work could start under the lease is Dec, 1 2020 — about 19 months away.

Bigger stumbling blocks to the progress of the EAA reservoir could come from the federal government.

Col. Kelly said once the project is designed, it must go through the federal permitting process.

“Everybody’s got a dog in the fight,” he said.

“We’re all looking at it through a different prism.

“It’s going to be 37 feet in the air,” the colonel continued. He said the massive dike is a huge safety risk and analysis has to be done.

“We’re going to do what the corps has always done,” he said. “We are going to be very careful.”

John Mitnik, SFWMD chief engineer, said that within the next 40 to 60 days they will have a conceptional layout for the stormwater treatment areas.
Corps of Engineers will be part of that project.

Col. Kelly said funding could also be an issue. There is currently no funding for the EAA reservoir project in the 2020 federal budget, he explained. (They do have some funding in the 2019 budget.)

“Perhaps in this case if we get far enough along the line in design if we don’t have the budget at that point, perhaps there is some funding that could happen,” he said.

“Nothing can start breaking ground until we have the federal permits,” said SFWMD executive director Drew Bartlett.

The federal government cannot act on issuing the permit until the National Environmental Policy Act (NEPA) analysis is done, making sure it is in the federal interest and meets environmental compliance for the action.

A NEPA analysis includes review of how the project would affect things such as tribal lands and endangered species.

Each federal agency has to sign off on the NEPA analysis if it affects their area.

Each of these has to conduct hearings for public comment. The corps has to receive and address the comments.

Gene Duncan, water resources director for the Miccosukee Tribe, said the tribe will oppose the EAA reservoir project until conveyance for more water is opened up under the Tamiami Trail.

Mr. Duncan said the modeling shows the EAA reservoir and STA will mean the water that drains onto the Miccosukee tribal lands will increases by 43 percent.

The tribe’s land is already often flooded, he said, which is harmful to the tree islands.

In addition, the modeling shows that with 43 percent increase in water, the tribal lands will receive a 36 percent increase in phosphorus.

“The Miccosukee Tribe is ready to fight you on this,” he said.

“The federal government has a responsibility to protect tribal lands,” he said.

The water stacks up north of the Tamiami Trail because there is limited conveyance under the roadway, and because for much of the year the U.S. Fish and Wildlife Service blocks flow under the roadway to protect the nesting grounds of the Cape Sable Sea Sparrow.

“We need a lot of discharge under the Tamiami Trail,” he said. “We want restoration to the Everglades.

“We have no choice but to fight to protect our own lands.”

Mr. Duncan said even if the water was cleaned to the 10 parts per billion (ppb) required for flow to Everglades National Park, the sheer volume of water is still a problem.

“The tree islands are already getting drowned out,” he said. “With 43 percent more water, and no way to move that water under the Tamiami Trail, it’s going to get worse.”

A representative from the Seminole Tribe of Florida said the Seminoles do not own any property in the EAA area, but did retain some rights to property the Seminole Tribe sold to the state as part of the Seminole Water Compact.

The Seminole Tribe has a cultural interest in the tree islands, he said. Impacts to the tree islands as a result of flooding is an issue that concerns the Seminoles.

The Native Americans have had issues with SFWMD projects in the past.
During construction of what is now STA 5.6, construction crews dug up of about 50 of the tribe’s ancestors, he said. The negotiated solution was to berm an area so the bodies could be reburied and that area if kept dry with a berm and a solar-powered pump.

That kind of solution is not going to occur in a 25-ft. deep reservoir, he said.
He said the cultural resource assessment should be done in advance to prevent delays in the process.

During the public comment period, Nyla Pipes of One Florida Foundation said when the water stacks up, the tree islands “just disintegrate.”

She reminded the board that the original Everglades starts near Orlando.

The EAA reservoir project is a Comprehensive Everglades Restoration Plan (CERP) project that fits together with other CERP projects to restore a more natural flow to the Everglades and reduce the need for harmful freshwater discharges to the coastal estuaries, she said.

“This reservoir has been sold (to the public) by certain organizations as the solution to the discharges,” she said.

“It will help, Every bit of storage will help,” she said, “but it will not solve the problem.

“If we don’t start cleaning north of the lake, we are never going to get the water quality we want south of the lake,” she said.

The letter from Florida Cyrstals states:

Dear Mr. Bartlett:
Congratulations on your appointment as executive director of the South Florida Water Management District (SFWMD).
As a landowner and stakeholder in South Florida, Florida Crystals shares the same goal as the State of Florida and your agency to preserve and protect Florida’s waterways and environment.
Florida Crystals made a firm commitment 25 years ago to the public-private partnership that has resulted in remarkable success achieving one of the world’s largest and most ambitious environmental restoration efforts, and we remain as resolute today to the success of Everglades restoration.
We have a documented track record as proponents of science-based restoration plans, including the Everglades Forever Act, the Comprehensive Everglades Restoration Plan, the Central Everglades Planning Project and Everglades Restoration Strategies. We supported them and advocated for their passage. We have also worked closely with the SFWMD to transition tracts of our privately owned farmland as well as leased land to the agency in a timely manner to construct restoration projects, including the A-1 FEB and the current STA-1W expansion. It was in this same spirit and with the knowledge and expertise of how our public-private partnership has worked in the past that we negotiated a transitional lease for land in the EAA reservoir site. The terms of the lease executed in November 2018 show it was designed to accelerate the project by giving the SFWMD early access to 560 acres of land, allowing the agency to begin site work and transportation of aggregate at any time.
The lease was also written to ensure that land will be available as needed and without delay for the EAA reservoir’s construction. Florida Crystals is fully committed to ensuring the same timely and cooperative transition of the 16,158 acres of leased land for the EAA reservoir as was achieved with the A-1 FEB and the STA-1W expansion. To this end, we have cooperated with every request by the SFWMD and U.S. Army Corps of Engineers to access and use land we are currently farming to perform geological investigations as part of the EAA reservoir’s design work, including allowing the excavation of multiple test pits within our active farming operations.
Furthermore, to be clear, as we have communicated to the current administration as well as to the prior administration, you have our commitment that, if construction of the reservoir is accelerated, we will transition land covered by this lease as needed by the SFWMD for construction of the EAA reservoir project.
As we approach the 25th anniversary of the Everglades Forever Act, we commend the professionals of the SFWMD for their accomplishments in making the bold vision set by the State of Florida for the Everglades a reality.
We look forward to working with you and your staff as you continue to implement Everglades restoration projects.
Sincerely,
Alfonso Fanjul
Chief executive officer,
chairman of the board
J. Pepe Fanjul
President, chief operating officer,
vice chairman of the board
Florida Crystals

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

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