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.
   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,
  231  Be It Enacted by the Legislature of the State of Florida:
  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 Engineersor “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.