Stakeholders voice concerns, confusion about clause

A debate is raging at public meetings, in letters from elected officials and on social media over the Lake Okeechobee System Operating Manual (LOSOM) and whether or not the “savings clause” written into federal law in the Water Resources Development Act of 2000 should be considered when developing the plan the U.S. Army Corps of Engineers will use to manage Lake Okeechobee when repairs to the Herbert Hoover Dike are complete in 2022.

Mast calls for 10.5-foot lake level by end of dry season
Sparking the debate: Since 2018, U.S. Rep. Brian Mast has lobbied for a lower lake level by the end of the dry season to allow more capacity for runoff during the wet season and lessen the chance the corps will have to release water to the St. Lucie Canal during the wet season to protect the Herbert Hoover Dike.

The congressman got his wish in 2019, when the corps dumped enough freshwater to tide to lower the lake by a foot during the dry season and lake level fell below 11 feet in June. Then the wet season rainfall did not come as predicted to fill the lake back up. Instead, 2019 brought the shortest wet season on record as well as the driest September on record. For Rep. Mast and his east coast supporters, the summer was a success because there were no lake releases to the St. Lucie River. For the water users south of the lake, the low lake level brought concerns about water supply with conditions so dry that Everglades National Park has suffered from brush fires.

LORS targets lake levels of 12.5 to 15.5 feet
The current plan, the Lake Okeechobee Regulation Schedule (LORS) was established in 2008 and tries to keep the lake level no lower than 12.5 feet above sea level and no higher than 15.5 feet. Most of the time, corps officials have often explained “Mother Nature is in charge,” which means the lake does sometimes go lower or higher than the plan. The earthen Herbert Hoover Dike is considered in danger of breach if the sustained water level goes above 17 feet. Should the dike fail, the East Coast Protection Levee along with much of Southeast Florida could be at risk. Occasional low levels can be beneficial to regrowing submerged aquatic vegetation (SAV), but levels below 11 feet more than once every six years can damage the lake’s marshes, because woody plants can take over. The marshes are the lake’s filter system and provide habitat for birds and wildlife as well as fish spawning grounds.

Scientists say 12 to 15 feet best
On April 15, 2020, the corps reported the RECOVER Lake Okeechobee Stage Performance Measure had been approved, with scientists recommending the minimum target level for Lake O at 12 feet. The RECOVER team conducts scientific and technical evaluations and assessments for improving CERP’s ability to restore, preserve and protect the South Florida ecosystem while providing for the region’s other water needs.

What is the savings clause?
The U.S, Army Corps of Engineers document, “Analyses Required by WRDA 2000 and Florida State Law” explains: “Congress enacted the WRDA (Water Resources Development Act) 2000, Section 601, Comprehensive Everglades Restoration Plan, which approved CERP (Comprehensive Everglades Restoration Plan) as a framework for modifications and operational changes to the Central and Southern Florida (C&SF) Project that are needed to restore, preserve and protect the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection. Section 601(h) of WRDA 2000, titled Assurance of Project Benefits, establishes project specific assurances to be addressed as part of CERP implementation.”

WRDA 2000 guarantees: “Until a new source of water supply of comparable quantity and quality as that available on the date of enactment of this Act is available to replace the water to be lost as a result of implementation of the Plan, the Secretary and the non-Federal sponsor shall not eliminate or transfer existing legal sources of water, including those for: an agricultural or urban water supply; allocation or entitlement to the Seminole Indian Tribe of Florida under section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e); the Miccosukee Tribe of Indians of Florida; water supply for Everglades National Park; or water supply for fish and wildlife.”

Confusion in the media
During the May 14 online meeting of the South Florida Water Management District Governing Board meeting, Palm Beach County Commissioner Greg Weiss asked the board to have a “meaningful and transparent discussion” about the savings clause so stakeholders and constituents can understand what the savings clause is and also understand the board’s position.

There has been a lot of misleading statements about the savings clause posted on social media and in the media, he said.

“The intent of the savings clause is to protect the water for fish and wildlife, Everglades National Park, the Seminole and Miccosukee Tribes, and urban and ag users,” he said.

“I represent City of Okeechobee on LOSOM PDT (project delivery team),” said Okeechobee Mayor Dowling Watford. “We are working diligently to try to come up with a new schedule. There have been hours and hours and hours spent on that.” Mayor Watford said the City of Okeechobee and Okeechobee County both signed the letter requesting the savings clause be considered as part of this process. “We wholly support the savings clause being included as we think it should be,” he said.

“I was actively involved and participated in meetings and in the review and editing of WRDA 2000,” said Rich Budell, of the Budell Water Group in Tallahassee.

“If there had not been the language that is present in Section 601, if that savings clause language had not been in WRDA 2000, CERP would not have been authorized. It’s plain and simple. The State of Florida demanded — not agriculture, not the utilities — the State of Florida demanded that the savings clause be a component of WRDA 2000 or CERP would not have been authorized,” he said.

Mr. Budell said a large, broad coalition of stakeholders sent letters to members of the Florida congressional delegation asking the savings clause be considered in LOSOM. He said the letters were not calling for a return to any particular lake schedule.

The savings clause does not benefit one special interest, as alleged on social media. It does not specify a particular lake level, he explained. “The signatories are not asking for a return to any particular schedule — it’s not true. Whatever you have heard in the press, it is simply not true,” he continued.

“What we want, what we advocate for is a schedule that protects the lake, the estuaries, fish and wildlife, provides adequate water for Everglades restoration, meets the water supply needs for the Miccosukees, the Seminoles, the utilities and agriculture and industrial users, a schedule that balances all of those water users, not a schedule that benefits one water user group over another.

“I believe that you as a board have an obligation under state law, to ensure the lake schedule, which is the only source of water for the Lake Okeechobee service area, and is the backup water source of water for the entire lower east coast, you have a legal obligation to balance the needs of the environment along with the needs of all current and future reasonable and beneficial users,” he said.

Nyla Pipes of One Florida Foundation said the entire system is very dry. “The Everglades are so dry people are driving pickup trucks to areas they would normally airboat to,” she said. “The fish are dying. There are more fires every dang day,” she said.

Ms. Pipes said the accusations that the savings clause only benefits agriculture, “these things are simply not true. The savings clause guarantees water supply for the environment — a lot of people are missing that fact.”

Scott Kelly, West Palm Beach assistant city administrator, asked the SFWMD governing board to put the discussion of the savings clause on their agenda for a future meeting.

“We need an open and meaningful discussion and analysis of the savings clause,” he said. “It’s an important issue for the environment and for the citizens of West Palm Beach who depend for their water supply from water from Lake Okeechobee.” In addition to the public utility system, Grassy Waters Preserve and the Loxahatchee River also depend on water from the lake, he added.

Eve Samples of Friends of the Everglades said in developing LOSOM, the corps is considering flood control, water supply, recreation, navigation, environmental effects to fish and wildlife and effects on cultural and recreational resources.

Doug Gaston, of Audubon Florida, said the lake was kept too high under the regulation schedules used prior to 2008, causing the loss of 45,000 acres of aquatic vegetation, he said.

“Applying the savings clause would really only serve to stack water in the lake the benefit for a small few,” claimed Jeffrey Mullins of Everglades Foundation.

“The savings clause is intended to protect a broad swath of water users,” said Tommy Stroud of the Lake Worth Drainage District.

Lisa Interlandi of the Everglades Law Center said the savings clause is to prevent water lost from implementation of CERP. LOSOM is not part of CERP, she said.

“We believe the corps is dead wrong that the savings clause does not apply to Lake Okeechobee,” said Gene Duncan, representing the Miccosukee Tribe.” CERP would not have passed if we did not have the savings clause.

“We are supposed to maintain the benefits to the entire system,” he said. “That has not happened this year.

“The lake was held particularly low to appease a certain group of people,” said Mr. Duncan.

Everglades National Park is on fire and has cap rock exposed, Mr. Duncan continued. “It is imperative that we keep water in the lake to sustain us through the dry period.”

He said those calling for consideration of the savings clause when developing LOSOM do not advocate a certain level. He added water rights were guaranteed to the Miccosukees in 1963 and to the Seminoles in 1957.

He said the water supply is supposed to be maintained to benefit the natural system — that’s all of the natural system and not just the estuaries. “Next year please do not mismanage the lake as you did this year,” he said.

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