Florida Senate - 2017 SB 816 By Senator Simmons 9-00547B-17 2017816__ 1 A bill to be entitled 2 An act relating to the Central and Southern Florida 3 Project for Flood Control and Other Purposes; defining 4 terms; providing legislative findings; directing the 5 South Florida Water Management District to take 6 control of discharges of water from Lake Okeechobee 7 and take a leadership role in the rehabilitation of 8 the Herbert Hoover Dike; directing the district to 9 request that the United States Army Corps of Engineers 10 revise a study and summary and to rehabilitate, 11 repair, improve, and strengthen the Herbert Hoover 12 Dike; specifying a deadline for implementation; 13 requiring the district to ensure that the release of 14 lake water is executed only as part of a specified 15 schedule; requiring the district to set a goal of 16 increasing lake storage up to a specified amount to 17 reduce certain discharges; providing an extension; 18 requiring the district to take all steps necessary to 19 accomplish specified dike improvements under certain 20 circumstances; directing the district to request the 21 Corps of Engineers to jointly develop a general 22 reevaluation report for the Comprehensive Everglades 23 Restoration Plan (CERP) with the purpose of increasing 24 storage in the authorized Everglades Agricultural Area 25 Storage Reservoir on A-1 and A-2 lands; clarifying 26 that the development of this report does not preclude 27 the implementation of approved CERP project 28 components; specifying that implementation of the plan 29 developed in the report is subject to congressional 30 authorization and adherence with all other state and 31 federal CERP project procedures; specifying that the 32 state does not waive sovereign immunity for torts 33 relating to the dike or project; providing that moneys 34 expended for specified purposes by the district or 35 another state agency in excess of state financial 36 obligations are an interest-free loan or advance to 37 the Federal Government; requiring the district to seek 38 recovery of such moneys; authorizing certain costs to 39 be funded using Florida Forever bond proceeds under 40 certain circumstances; providing legislative findings; 41 specifying how such bond proceeds must be deposited; 42 specifying how recovered funds are to be used; 43 providing an effective date. 44 45 WHEREAS, federal participation in flood control efforts, 46 while not previously a function of the Federal Government, began 47 after the disastrous hurricanes of 1926 and 1928, with states 48 requesting assistance from the Federal Government and with the 49 enactment of the River and Harbor Act of 1930, and 50 WHEREAS, the Central and Southern Florida Project for Flood 51 Control and Other Purposes (C&SF) was developed pursuant to the 52 federal Flood Control Act of 1948, and 53 WHEREAS, in 1949, the State of Florida established a 54 partnership with the United States Government to implement the 55 C&SF, and 56 WHEREAS, the State of Florida provided significant funds, 57 lands, and other contributions to the C&SF, and 58 WHEREAS, the C&SF is a function of state and federal 59 authorization, and initiation of the project was premised on the 60 State of Florida’s partnership with the Federal Government, and 61 WHEREAS, all title to the easements and rights-of-way upon 62 which the C&SF structures operate belongs to the state, and 63 WHEREAS, while the United States Army Corps of Engineers 64 and the South Florida Water Management District work jointly to 65 operate and maintain the C&SF, the Corps maintains its 66 decisionmaking responsibility for the C&SF and operates and 67 maintains the levees, channels, locks, and control works of the 68 St. Lucie Canal, Lake Okeechobee, and Caloosahatchee River and 69 the main spillways of C&SF’s water conservation areas only under 70 the partnership terms with the state, and 71 WHEREAS, the United States Eleventh Circuit Court of 72 Appeals in 2013 ruled that “[d]espite the Corps exercising 73 control over these systems, either directly or by issuing 74 regulations to the SFWMD, the project is a function of state 75 authorization. The federal government’s initiation of the 76 project was premised on the State of Florida’s permission; all 77 title to the easements and rights-of-way upon which the C&SF 78 Project structures operate belong to the State of Florida; and 79 the United States Army Corps of Engineers administers the C&SF 80 Project pursuant to an agreement between the United States and 81 the State of Florida,” and 82 WHEREAS, the State of Florida, therefore, has the ultimate 83 right of decisionmaking regarding this partnership between the 84 United States and the state, and when the United States Army 85 Corps of Engineers’ conduct, as a result of the funding 86 limitations imposed upon it, is jeopardizing the life, safety, 87 welfare, economy, and environment of this state, the state, by 88 virtue of its ultimate contractual right of control of the C&SF 89 and its inherent constitutional right to protect its residents, 90 may direct and assist the Corps to make revisions of the 91 operations within the C&SF, and 92 WHEREAS, the United States Eleventh Circuit Court of 93 Appeals has further held that the authorized purposes of the 94 C&SF Project include absorbing water for flood control, 95 maintaining water supplies for agriculture, restoring hydrologic 96 conditions in the Everglades National Park, ensuring water 97 quality, and maintaining fish, wildlife, and marsh vegetation, 98 and 99 WHEREAS, the C&SF Project therefore clearly includes the 100 purpose of protecting the St. Lucie River and the Caloosahatchee 101 River and their estuaries from the destructive impacts of high 102 volume discharges from Lake Okeechobee, and, consequently, in 103 protecting the Everglades and operating within the limitations 104 and parameters of the C&SF, the United States Army Corps of 105 Engineers and the State of Florida must not ignore these 106 critical environmental treasures, and 107 WHEREAS, the lives, safety, and livelihood of the state’s 108 residents who live around Lake Okeechobee depend upon a properly 109 maintained water level, the strength and integrity of the 110 Herbert Hoover Dike, the protection of the Everglades and 111 endangered species in and surrounding the Everglades, the 112 protection of the St. Lucie River and Caloosahatchee River and 113 their estuaries, and the protection of agriculture and other 114 private property rights—all as provided by the applicable 115 statutes and agreements creating the C&SF—and these are not 116 mutually exclusive goals, but instead must be achieved together, 117 and 118 WHEREAS, the Herbert Hoover Dike, a component of the C&SF, 119 is an approximately 143-mile levee system surrounding Lake 120 Okeechobee developed and built starting in 1930, as authorized 121 under the federal River and Harbor Act of 1930, to provide flood 122 protection and other development benefits to South Florida, and 123 WHEREAS, one of the central requirements of the C&SF is to 124 protect the structural integrity of the Herbert Hoover Dike, and 125 WHEREAS, since at least the late 1980s, the United States 126 Army Corps of Engineers has been aware of significant structural 127 vulnerabilities in the dike due to slope instability, piping, 128 and seepage, and 129 WHEREAS, the United States Army Corps of Engineers, in its 130 June 2016 Environmental Impact Statement submitted pursuant to 131 its intended dike modifications, classified the dike as 132 “critically near failure or extremely high risk” and that “a 133 failure of the dike could result in human suffering, immense 134 property damage, destruction of the natural habitat, and loss of 135 human life,” and 136 WHEREAS, despite this well-known and ongoing risk, due to 137 funding or other limitations, the United States Army Corps of 138 Engineers has been unable to timely and adequately rehabilitate 139 the dike, resulting in an unjustifiable, significant, and 140 intolerable risk of major injury, loss of life, property 141 destruction, and environmental damage for communities and other 142 interests near Lake Okeechobee, and 143 WHEREAS, the poor condition of the dike has resulted in 144 “seepage and internal erosion ... during high reservoir events,” 145 thus causing the United States Army Corps of Engineers in April 146 2008 to revise its prior discharge schedule, creating its 147 current interim Lake Okeechobee Regulation Schedule (LORS08), 148 which was intended to be a temporary schedule while dike repairs 149 were completed, and which has caused significant and damaging 150 releases of polluted lake water into the St. Lucie River and 151 Caloosahatchee River systems, while diminishing water storage 152 and supply, and 153 WHEREAS, the National Academies of Sciences, Engineering, 154 and Medicine in 2016 published their report on the “Progress 155 Toward Restoring the Everglades: The Sixth Biennial Review, 156 2016,” and 157 WHEREAS, “[t]he National Academies of Sciences, 158 Engineering, and Medicine established the Committee on 159 Independent Scientific Review of Everglades Restoration Progress 160 in 2004 in response to a request from the United States Army 161 Corps of Engineers ..., with support from the South Florida 162 Water Management District ..., and the U.S. Department of the 163 Interior ..., based on Congress’s mandate in the Water Resources 164 Development Act of 2000,” and 165 WHEREAS, as stated by the National Academies of Sciences, 166 Engineering, and Medicine, integrity issues and concerns that 167 led to the United States Army Corps of Engineers’ Dam Safety 168 Modification Study also resulted in the new water discharge 169 regulation schedule that was designed to limit high water levels 170 in the lake and thereby reduce the risk of catastrophic levee 171 failure until substantial progress is made in the dike 172 rehabilitation, and 173 WHEREAS, the National Academies of Sciences, Engineering, 174 and Medicine state that the Interim LORS08 Schedule implemented 175 in April 2008 lowered the maximum stage from 18.5 feet to 17.25 176 feet (National Geodetic Survey Vertical Datum), resulting in a 177 significant loss of water storage and supply, and 178 WHEREAS, the United States Army Corps of Engineers’ 179 implementation of its dike modifications is not expected to be 180 completed before fiscal year 2025 at the earliest, depending on 181 funding, and 182 WHEREAS, the National Academies of Sciences, Engineering, 183 and Medicine state that the United States Army Corps of 184 Engineers’ future lake discharge schedule is critically 185 important to future Comprehensive Everglades Restoration Plan 186 (CERP) decisions regarding storage north and south of the lake, 187 and that the “adoption of the LORS 2008 schedule, intended to 188 reduce life safety risks in light of structural problems with 189 the Herbert Hoover Dike ... alone reduced potential storage by 190 564,000 [acre-feet],” and 191 WHEREAS, the National Academies of Sciences, Engineering, 192 and Medicine concluded and recommended that “[t]he process to 193 revise the Lake Okeechobee regulation schedule should be 194 initiated as soon as possible in parallel with the Herbert 195 Hoover Dike modifications to inform near-term project planning 196 involving water storage north and south of the lake. The large 197 impacts on water storage with just modest changes in the lake 198 regulation schedule suggest that Lake Okeechobee is a central 199 factor in future considerations of water storage. Decisions made 200 on the future regulation schedule will affect storage needs both 201 north and south of the lake and overall restoration outcomes and 202 costs.... Expediting the revision to the lake regulation 203 schedule would also ensure that the process is complete 204 (including a required dam safety risk assessment) so that the 205 new schedule can be put into place as soon as the Herbert Hoover 206 Dike repairs are determined to be sufficient to sustain higher 207 water levels, thereby expediting ecological benefits to the 208 northern estuaries. Once other storage elements are constructed, 209 the lake schedule will likely need to be revisited to optimize 210 its operations considering the additional storage features,” and 211 WHEREAS, in making its decisions, apparently due to funding 212 or other limitations, the United States Army Corps of Engineers 213 has not been able to adequately respond to the tragic and 214 destructive consequences of its high-volume discharges into both 215 the St. Lucie River and Caloosahatchee River, their estuaries, 216 and the communities surrounding those invaluable rivers and 217 estuaries, and 218 WHEREAS, the United States Army Corps of Engineers’ high 219 volume water releases into the St. Lucie River and 220 Caloosahatchee River systems have resulted in disastrous impacts 221 to public health, property, and the environment for residents 222 living along and near these river and estuary systems, and 223 WHEREAS, the state, which has the ownership and ultimate 224 right of control over the C&SF to protect its residents, the 225 environment, and the public health, safety, and welfare, has a 226 right and obligation to alter the management, construction, and 227 maintenance of the dike and the C&SF overall to reduce the risks 228 of continuing harm to its residents and the environment, NOW, 229 THEREFORE, 230 231 Be It Enacted by the Legislature of the State of Florida: 232 233 Section 1. Emergency rehabilitation of the Central and 234 Southern Florida Project for Flood Control and Other Purposes.— 235 (1) As used in this section, the term: 236 (a) “A-1 and A-2 lands” means the approximately 31,000 237 acres in Compartment A acquired pursuant to the March 1999 238 Talisman Exchange and Purchase and Sale Agreement. 239 (b) “CERP” has the same meaning as the term “comprehensive 240 plan” as defined in s. 373.470, Florida Statutes. 241 (c) “Corps of Engineers” or “Corps” means the United States 242 Army Corps of Engineers. 243 (d) “C&SF” means the Central and Southern Florida Project 244 for Flood Control and Other Purposes. 245 (e) “C&SF agreement” means the agreement entered into 246 between the state and the Federal Government to operate the 247 C&SF. 248 (f) “Department” means the Department of Environmental 249 Protection. 250 (g) “Dike” means the Herbert Hoover Dike. 251 (h) “District” means the South Florida Water Management 252 District. 253 (i) “DSADS” means the Dam Safety Action Decision Summary 254 for the Herbert Hoover Dike compiled by the Corps of Engineers. 255 (j) “Interim LORS08 Schedule” means the 2008 Lake 256 Okeechobee Interim Regulation Schedule approved by the Corps on 257 April 28, 2008. 258 (k) “Modification Study” means the Corps of Engineers 259 evaluation known as the Herbert Hoover Dike Dam Safety 260 Modification Study. 261 (2) The Legislature finds that the dike, a major component 262 of the C&SF, is designated by the Corps of Engineers as meeting 263 Dam Safety Classification Level 1, the highest risk designation 264 used by the Corps. Because of the instability of the dike, the 265 Corps implemented the Interim LORS08 Schedule, a lower lake 266 schedule, while dike repairs were completed. The Interim LORS08 267 Schedule has resulted in regular releases of significant amounts 268 of lake water into the St. Lucie River and Caloosahatchee River 269 systems to reduce pressure on the dike. These releases, combined 270 with local basin runoff, have resulted in significant negative 271 impacts to public health, water supply, property, and the 272 environment for residents throughout South Florida. Furthermore, 273 the current critical state of the dike presents significant risk 274 of major injury, loss of life, property destruction, and 275 environmental damage for communities and other interests near 276 Lake Okeechobee. These negative impacts can be ameliorated with 277 the expeditious completion of the dike repairs and 278 implementation of a new lake regulation schedule. Therefore, 279 given the inadequate response of the Corps to these known risks 280 and the significant and unacceptable potential for harm to the 281 state and its residents, the Legislature finds that an emergency 282 situation exists in the C&SF which the state must address 283 immediately. 284 (3) The district is directed to immediately declare the 285 rights of the state to ultimately control discharges of water 286 from Lake Okeechobee and assume a leadership role in the 287 rehabilitation of the dike and any other work in order to comply 288 with the purposes and intent of the C&SF agreement. By July 1, 289 2017, the district shall request the Corps of Engineers to: 290 (a) Revise the Modification Study and DSADS in support of 291 the directives in paragraphs (b) and (c); 292 (b) Materially rehabilitate, repair, improve, and 293 strengthen the dike on an expedited schedule so as to reach 294 substantial completion on or before July 1, 2020. This expedited 295 rehabilitation, repair, improvement, and strengthening shall be 296 implemented, as deemed reasonable by the district given the 297 complexity of the project and the significant risks of further 298 delay, in such a manner as to accomplish all of the goals of the 299 C&SF, including, but not limited to, protecting the residents of 300 this state and limiting the harmful discharges of water from 301 Lake Okeechobee; and 302 (c) Ensure that the Corps of Engineers’ release of lake 303 water into the St. Lucie River and Caloosahatchee River systems 304 is executed only as part of a schedule approved by the district. 305 (4) In the process of rehabilitation, repair, improvement, 306 and strengthening of the dike, the district shall set a goal of 307 adding up to an additional 2 feet of water storage capacity 308 above that provided by the current Interim LORS08 Schedule to 309 Lake Okeechobee in order to reduce the need to release lake 310 water into the St. Lucie River and Caloosahatchee River systems, 311 so that maximum discharges are not required until the water 312 level of the lake reaches 19.0 feet NGVD. 313 (5) If the district determines that it or the Corps of 314 Engineers is unable, after due diligence, to accomplish the 315 substantial completion of the work specified in subsection (3) 316 on or before July 1, 2020, the district may, upon application to 317 the department and good cause shown, obtain an extension of time 318 of up to 1 year to attain substantial completion of the dike 319 rehabilitation, repair, improvement, and strengthening. 320 (6) If the Corps of Engineers refuses or fails to take 321 action consistent with this section, or refuses or fails to 322 achieve the objectives of this section, the district shall take 323 all steps necessary to accomplish such action or achieve such 324 objectives itself. 325 (7) The district is directed to request the Corps of 326 Engineers jointly develop a general reevaluation report for CERP 327 with the purpose of increasing storage in the authorized 328 Everglades Agricultural Area Storage Reservoir on A-1 and A-2 329 lands to a total of 240,000 to 360,000 acre-feet and to provide 330 required water quality treatment. The development of the general 331 reevaluation report does not preclude implementation of the 332 remaining CERP project components authorized as part of the 333 Central Everglades Planning Process. All recommended 334 modifications to the Everglades Agricultural Area Storage 335 Reservoir on A-1 and A-2 lands must include sufficient water 336 quality treatment to meet state water quality standards. 337 Implementation of the recommended plan in the general 338 reevaluation report is subject to congressional authorization 339 and adherence to all other state and federal CERP project 340 procedures. 341 (8) Notwithstanding s. 768.28, Florida Statutes, the state, 342 for itself and for its agencies and subdivisions, does not waive 343 sovereign immunity for torts arising from the implementation of 344 this section. Such torts include, but are not limited to, those 345 arising from the failure or breach of the dike, operation of the 346 dike, or impacts related to the failure, breach, or operation of 347 the dike or other C&SF project-related structures repaired, 348 replaced, or operated pursuant to this section. 349 (9) Any moneys expended by the district or another state 350 agency to comply with this section in excess of existing state 351 obligation under the C&SF agreement are declared by this state 352 to be an interest-free loan or advance to the United States. The 353 district shall seek recovery of these moneys as authorized by 354 law. 355 (10)(a) Pursuant to s. 11(e), Article VII of the State 356 Constitution, state bonds are authorized under this section to 357 finance or refinance the acquisition and improvement of land, 358 water areas, and related property interests and resources for 359 the purposes of conservation, outdoor recreation, water resource 360 development, restoration of natural systems, and historic 361 preservation. In accordance with s. 17, Article X of the State 362 Constitution, funds deposited into the Everglades Trust Fund may 363 be expended for the purposes of conservation and protection of 364 natural resources in the Everglades Protection Area and the 365 Everglades Agricultural Area. 366 (b) Any costs related to this section, including, but not 367 limited to, the costs for land acquisition, construction, and 368 operation and maintenance, may be funded using proceeds from 369 Florida Forever bonds issued under s. 215.618, Florida Statutes, 370 as authorized under that section. The Legislature determines 371 that the authorization and issuance of such bonds is in the best 372 interest of the state and determines that the provisions of this 373 section should be implemented. Notwithstanding any other 374 provision of law, proceeds from the sale of such bonds, less the 375 costs of issuance, the costs of funding reserve accounts, and 376 other costs with respect to the bonds, up to $1 billion in bond 377 proceeds in the 2017-2018 fiscal year shall be deposited to the 378 Everglades Trust Fund for dike rehabilitation, repair, 379 improvement, and strengthening pursuant to subsection (4). 380 (c) The district shall use funds recovered pursuant to 381 subsection (9) solely for the purposes of this section. 382 Section 2. This act shall take effect upon becoming a law.