Florida Senate - 2017 COMMITTEE AMENDMENT Bill No. PCS (601444) for SB 10 Ì934000WÎ934000 LEGISLATIVE ACTION Senate . House Comm: WD . 04/06/2017 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Appropriations (Simmons) recommended the following: 1 Senate Substitute for Amendment (920390) (with title 2 amendment) 3 4 Delete everything after the enacting clause 5 and insert: 6 Section 1. Emergency rehabilitation of the Central and 7 Southern Florida Project for Flood Control and Other Purposes.— 8 (1) As used in this section, the term: 9 (a) “A-1 and A-2 lands” means the approximately 31,000 10 acres in Compartment A acquired pursuant to the March 1999 11 Talisman Exchange and Purchase and Sale Agreement. 12 (b) “CERP” has the same meaning as the term “comprehensive 13 plan” as defined in s. 373.470, Florida Statutes. 14 (c) “Corps of Engineers” or “Corps” means the United States 15 Army Corps of Engineers. 16 (d) “C&SF” means the Central and Southern Florida Project 17 for Flood Control and Other Purposes. 18 (e) “C&SF agreement” means the agreement entered into 19 between the state and the Federal Government to operate the 20 C&SF. 21 (f) “Department” means the Department of Environmental 22 Protection. 23 (g) “Dike” means the Herbert Hoover Dike. 24 (h) “District” means the South Florida Water Management 25 District. 26 (i) “DSADS” means the Dam Safety Action Decision Summary 27 for the Herbert Hoover Dike compiled by the Corps of Engineers. 28 (j) “Everglades Agricultural Area” or “EAA” has the same 29 meaning as in s. 373.4592, Florida Statutes. 30 (k) “EAA Storage Reservoir” means the above-ground 31 reservoir located in the Everglades Agricultural Area, which is 32 included in the comprehensive plan as defined in s. 33 373.470(2)(b), Florida Statutes, and subsequently modified by 34 the project implementation reports approved pursuant to s. 35 601(b)(1)(D)(i) of Pub. L. No. 106-541, December 11, 2000. 36 (l) “Interim LORS08 Schedule” means the 2008 Lake 37 Okeechobee Interim Regulation Schedule approved by the Corps on 38 April 28, 2008. 39 (m) “Modification study” means the Corps of Engineers 40 evaluation known as the Herbert Hoover Dike Dam Safety 41 Modification Study. 42 (2) The Legislature finds that the dike, a major component 43 of the C&SF, is designated by the Corps of Engineers as meeting 44 Dam Safety Classification Level 1, the highest risk designation 45 used by the Corps. Because of the instability of the dike, the 46 Corps implemented the Interim LORS08 Schedule, a lower lake 47 schedule, while dike repairs were completed. The Interim LORS08 48 Schedule has resulted in regular releases of significant amounts 49 of lake water into the St. Lucie River and Caloosahatchee River 50 systems to reduce pressure on the dike. These releases, combined 51 with local basin runoff, have resulted in significant negative 52 impacts to public health, water supply, property, and the 53 environment for residents throughout South Florida. Furthermore, 54 the current critical state of the dike presents significant risk 55 of major injury, loss of life, property destruction, and 56 environmental damage for communities and other interests near 57 Lake Okeechobee. These negative impacts can be ameliorated with 58 the expeditious completion of the dike repairs and 59 implementation of a new lake regulation schedule. Therefore, 60 given the inadequate response of the Corps to these known risks 61 and the significant and unacceptable potential for harm to the 62 state and its residents, the Legislature finds that an emergency 63 situation exists in the C&SF which the state must address 64 immediately. 65 (3) The district is directed to immediately attempt to 66 negotiate with the Corps of Engineers to develop an 67 intergovernmental agreement to reduce the discharges of water 68 from Lake Okeechobee and expedite the rehabilitation of the dike 69 and any other work in order to comply with the purposes and 70 intent of the C&SF agreement. As part of the agreement, the 71 district shall negotiate with the Corps to: 72 (a) Revise and expedite the Modification Study and DSADS in 73 support of the directives in paragraphs (b) and (c); 74 (b) Materially rehabilitate, repair, improve, and 75 strengthen the dike on an expedited schedule so as to reach 76 substantial completion on or before July 1, 2021. This expedited 77 rehabilitation, repair, improvement, and strengthening shall be 78 implemented, as deemed reasonable by the district and the Corps 79 given the complexity of the project and the significant risks of 80 further delay, in such a manner as to accomplish all of the 81 goals of the C&SF, including, but not limited to, protecting the 82 residents of this state and limiting the harmful discharges of 83 water from Lake Okeechobee; and 84 (c) Ensure that the Corps of Engineers’ release of lake 85 water into the St. Lucie River and Caloosahatchee River systems 86 is executed only as part of a schedule jointly developed with 87 input from the district. 88 89 As part of the negotiations conducted pursuant to this 90 subsection, the district is authorized to require that provision 91 be made for adequate assurances from the Corps that funds 92 advanced will be repaid by the Corps, or on the Corps’ behalf. 93 However, if circumstances are such that an advancement of funds 94 is necessary to address an emergency situation relating to the 95 goals and directives of this act, the district may advance funds 96 without such assurances. 97 (4) If the district is unable to reach an agreement by 98 October 1, 2017, to, at a minimum, meet the objectives provided 99 in paragraphs (3)(a), (b), and (c), the district is authorized, 100 if it deems such action necessary and appropriate to satisfy the 101 objectives of this section, to immediately declare the rights of 102 the state to ultimately control discharges of water from Lake 103 Okeechobee and to assume a leadership role in the rehabilitation 104 of the dike and any other work in order to comply with the 105 purposes and intent of the C&SF agreement. As part of its 106 leadership role, the district may request the Corps of Engineers 107 to meet the objectives provided in paragraphs (3)(a), (b), and 108 (c). If the Corps refuses or fails to take action on this 109 request, or refuses or fails to achieve the objectives provided 110 in paragraphs (3)(a), (b), and (c), the district is authorized 111 to take all steps necessary to accomplish such action or achieve 112 such objectives itself. The district is also authorized to 113 extend the time period for reaching an agreement with the Corps 114 pursuant to this subsection for a reasonable period of time if 115 the district determines that the parties are negotiating in good 116 faith and are nearing an agreement. 117 (5) In the process of rehabilitation, repair, improvement, 118 and strengthening of the dike, the district shall set a goal of 119 adding up to an additional 1.25 feet of short-term water storage 120 capacity above that provided by the current Interim LORS08 121 Schedule to Lake Okeechobee in order to reduce the need for 122 high-volume release of lake water into the St. Lucie River and 123 Caloosahatchee River systems to ensure that the maximum stage 124 does not exceed 18.5 feet NGVD, taking into consideration all 125 relevant circumstances, including the ecology of the lake. 126 (6) If the district determines that it or the Corps of 127 Engineers is unable, after due diligence, to accomplish the 128 substantial completion of the work specified in subsection (3) 129 on or before July 1, 2021, the district may, upon application to 130 the department and good cause shown, obtain extensions of time 131 in increments of up to 1 year in order to attain, as 132 expeditiously as reasonably possible, substantial completion of 133 the dike rehabilitation, repair, improvement, and strengthening. 134 (7)(a) The district is directed to request that the Corps 135 of Engineers jointly develop with the district a general 136 reevaluation report for CERP with the purpose of increasing 137 storage and providing water quality treatment within the 138 boundary of the A-1 and A-2 lands in the authorized EAA Storage 139 Reservoir to achieve a total storage capacity of a minimum of 140 240,000 acre feet and up to a maximum of 360,000 acre-feet, if 141 practicable, on such lands. The development of the General 142 Reevaluation Report must be consistent with CERP, the Master 143 Implementation Sequencing Plan required under 33 C.F.R. s. 144 385.30, and the Integrated Delivery Schedule adopted by the 145 United States Army Corps of Engineers, dated December 2016. The 146 development of the general reevaluation report does not preclude 147 implementation of the remaining CERP project components 148 authorized as part of the Central Everglades Planning Process. 149 All recommended modifications to the EAA Storage Reservoir on 150 A1 and A-2 lands must include sufficient water quality 151 treatment features within the A-1 and A-2 lands to meet state 152 water quality standards in the Everglades Protection Area. 153 Implementation of the recommended plan in the general 154 reevaluation report is subject to congressional authorization 155 and adherence to all other state and federal CERP project 156 procedures. 157 (b) The district may not exercise eminent domain for the 158 purpose of implementing the EAA Storage Reservoir or any of the 159 provisions of this subsection. 160 (8) Notwithstanding s. 768.28, Florida Statutes, the state, 161 for itself and for its agencies and subdivisions, does not waive 162 sovereign immunity for torts arising from the implementation of 163 this section. Such torts include, but are not limited to, those 164 arising from the failure or breach of the dike, operation of the 165 dike, or impacts related to the failure, breach, or operation of 166 the dike or other C&SF project-related structures repaired, 167 replaced, or operated pursuant to this section. 168 (9)(a) Any moneys expended by the district or another state 169 agency to comply with this section in excess of existing state 170 obligation under the C&SF agreement are declared by this state 171 to be an interest-free loan or advance to the United States. The 172 district shall seek recovery of these moneys as authorized by 173 law. Funds recovered pursuant to this subsection shall be used 174 by the district solely for the purposes of this section. 175 (10) The Legislature finds that aquifer storage and 176 recovery (ASR) wells are an integral part of CERP and the 177 primary CERP project component designed to manage Lake 178 Okeechobee levels and high discharges to the estuaries and 179 address other C&SF purposes. Subject to the appropriation of 180 funds by the Legislature, the district is directed to 181 immediately begin planning and to construct and operate on lands 182 owned by the district on the effective date of this act a 183 minimum of 40 ASR wells consistent with the findings in the May 184 2015 report entitled “Central and South Florida Project, 185 Comprehensive Everglades Restoration Plan, Final Technical Data 186 Report, Aquifer Storage and Recovery Regional Study.” 187 Section 2. For the 2017-2018 fiscal year, the sum of $64 188 million in recurring funds, and for the 2018-2019 through 2020 189 2021 fiscal years, the sum of $100 million, annually, in 190 recurring funds, is appropriated from the Land Acquisition Trust 191 Fund to the South Florida Water Management District for the 192 purpose of implementing section 1 of this act. 193 Section 3. This act shall take effect upon becoming a law. 194 195 ================= T I T L E A M E N D M E N T ================ 196 And the title is amended as follows: 197 Delete everything before the enacting clause 198 and insert: 199 A bill to be entitled 200 An act relating to the Central and Southern Florida 201 Project for Flood Control and Other Purposes; defining 202 terms; providing legislative findings; directing the 203 South Florida Water Management District to attempt to 204 negotiate an agreement with the United States Army 205 Corps of Engineers to reduce discharges of water from 206 Lake Okeechobee and expedite the rehabilitation of the 207 Herbert Hoover Dike, to revise and expedite a certain 208 study and a certain summary, to rehabilitate, repair, 209 improve, and strengthen the dike, and to ensure that 210 the release of lake water is executed only as part of 211 a specified schedule; authorizing the district, as 212 part of such negotiations, to seek certain assurances 213 from the Corps before advancing funds unless the 214 advancing of funds is necessary to address an 215 emergency; directing the district to declare its right 216 to take control of discharges of water from Lake 217 Okeechobee and take a leadership role in the 218 rehabilitation of the dike under certain conditions; 219 authorizing the district to take steps necessary to 220 meet specified objectives if the Corps of Engineers 221 refuses or fails to take specified action, or refuses 222 or fails to achieve specified objectives; providing 223 for extensions to reach an agreement; requiring the 224 district to set a goal of increasing lake storage up 225 to a specified amount to reduce certain high-volume 226 discharges; providing for extensions; directing the 227 district to request the Corps of Engineers to jointly 228 develop a general reevaluation report for the 229 Comprehensive Everglades Restoration Plan (CERP) with 230 the purpose of increasing storage in the authorized 231 Everglades Agricultural Area Storage Reservoir on A-1 232 and A-2 lands consistent with certain plans and a 233 schedule; clarifying that the development of this 234 report does not preclude the implementation of 235 approved CERP project components; specifying that 236 implementation of the plan developed in the report is 237 subject to congressional authorization and adherence 238 with all other state and federal CERP project 239 procedures; prohibiting the district from exercising 240 imminent domain; specifying that the state does not 241 waive sovereign immunity for torts relating to the 242 dike or project; providing that moneys expended for 243 specified purposes by the district or another state 244 agency in excess of state financial obligations are an 245 interest-free loan or advance to the United States; 246 requiring the district to seek recovery of such 247 moneys; specifying how recovered funds are to be used; 248 providing an exception in certain emergency 249 situations; providing a legislative finding; subject 250 to the appropriation of funds, directing the district 251 to immediately construct and operate a specified 252 minimum number of aquifer storage and recovery wells 253 that are consistent with the findings in a specified 254 report; providing appropriations; providing an 255 effective date. 256 257 WHEREAS, federal participation in flood control efforts, 258 while not previously a function of the Federal Government, began 259 after the disastrous hurricanes of 1926 and 1928, with states 260 requesting assistance from the Federal Government and with the 261 enactment of the River and Harbor Act of 1930, and 262 WHEREAS, the Central and Southern Florida Project for Flood 263 Control and Other Purposes (C&SF) was developed pursuant to the 264 federal Flood Control Act of 1948, and 265 WHEREAS, in 1949, the State of Florida established a 266 partnership with the United States Government to implement the 267 C&SF, and 268 WHEREAS, the State of Florida provided significant funds, 269 lands, and other contributions to the C&SF, and 270 WHEREAS, the C&SF is a function of state and federal 271 authorization, and initiation of the project was premised on the 272 State of Florida’s partnership with the Federal Government, and 273 WHEREAS, all title to the easements and rights-of-way upon 274 which the C&SF structures operate belongs to the state, and 275 WHEREAS, while the United States Army Corps of Engineers 276 and the South Florida Water Management District work jointly to 277 operate and maintain the C&SF, the Corps maintains its 278 decisionmaking responsibility for the C&SF and operates and 279 maintains the levees, channels, locks, and control works of the 280 St. Lucie Canal, Lake Okeechobee, and Caloosahatchee River and 281 the main spillways of C&SF’s water conservation areas only under 282 the partnership terms with the state, and 283 WHEREAS, the United States Eleventh Circuit Court of 284 Appeals in 2013 ruled that “[d]espite the Corps exercising 285 control over these systems, either directly or by issuing 286 regulations to the SFWMD, the project is a function of state 287 authorization. The federal government’s initiation of the 288 project was premised on the State of Florida’s permission; all 289 title to the easements and rights-of-way upon which the C&SF 290 Project structures operate belong to the State of Florida; and 291 the United States Army Corps of Engineers administers the C&SF 292 Project pursuant to an agreement between the United States and 293 the State of Florida,” and 294 WHEREAS, the State of Florida, therefore, has the ultimate 295 right of decisionmaking regarding this partnership between the 296 United States and the state, and when the United States Army 297 Corps of Engineers’ conduct, as a result of the funding 298 limitations imposed upon it, is jeopardizing the life, safety, 299 welfare, economy, and environment of this state, the state, by 300 virtue of its ultimate contractual right of control of the C&SF 301 and its inherent constitutional right to protect its residents, 302 may direct and assist the Corps to make revisions of the 303 operations within the C&SF, and 304 WHEREAS, the United States Eleventh Circuit Court of 305 Appeals has further held that the authorized purposes of the 306 C&SF Project include absorbing water for flood control, 307 maintaining water supplies for agriculture, restoring hydrologic 308 conditions in the Everglades National Park, ensuring water 309 quality, and maintaining fish, wildlife, and marsh vegetation, 310 and 311 WHEREAS, the C&SF Project therefore clearly includes the 312 purpose of protecting the St. Lucie River and the Caloosahatchee 313 River and their estuaries from the destructive impacts of high 314 volume discharges from Lake Okeechobee, and, consequently, in 315 protecting the Everglades and operating within the limitations 316 and parameters of the C&SF, the United States Army Corps of 317 Engineers and the State of Florida must not ignore these 318 critical environmental treasures, and 319 WHEREAS, the lives, safety, and livelihood of the state’s 320 residents who live around Lake Okeechobee depend upon a properly 321 maintained water level, the strength and integrity of the 322 Herbert Hoover Dike, the protection of the Everglades and 323 endangered species in and surrounding the Everglades, the 324 protection of the St. Lucie River and Caloosahatchee River and 325 their estuaries, and the protection of agriculture and other 326 private property rights—all as provided by the applicable 327 statutes and agreements creating the C&SF—and these are not 328 mutually exclusive goals, but instead must be achieved together, 329 and 330 WHEREAS, the Herbert Hoover Dike, a component of the C&SF, 331 is an approximately 143-mile levee system surrounding Lake 332 Okeechobee developed and built starting in 1930, as authorized 333 under the federal River and Harbor Act of 1930, to provide flood 334 protection and other development benefits to South Florida, and 335 WHEREAS, one of the central requirements of the C&SF is to 336 protect the structural integrity of the Herbert Hoover Dike, and 337 WHEREAS, since at least the late 1980s, the United States 338 Army Corps of Engineers has been aware of significant structural 339 vulnerabilities in the dike due to slope instability, piping, 340 and seepage, and 341 WHEREAS, the United States Army Corps of Engineers, in its 342 June 2016 Environmental Impact Statement submitted pursuant to 343 its intended dike modifications, classified the dike as 344 “critically near failure or extremely high risk” and that “a 345 failure of the dike could result in human suffering, immense 346 property damage, destruction of the natural habitat, and loss of 347 human life,” and 348 WHEREAS, despite this well-known and ongoing risk, due to 349 funding or other limitations, the United States Army Corps of 350 Engineers has been unable to timely and adequately rehabilitate 351 the dike, resulting in an unjustifiable, significant, and 352 intolerable risk of major injury, loss of life, property 353 destruction, and environmental damage for communities and other 354 interests near Lake Okeechobee, and 355 WHEREAS, the poor condition of the dike has resulted in 356 “seepage and internal erosion ... during high reservoir events,” 357 thus causing the United States Army Corps of Engineers in April 358 2008 to revise its prior discharge schedule, creating its 359 current interim Lake Okeechobee Regulation Schedule (LORS08), 360 which was intended to be a temporary schedule while dike repairs 361 were completed, and which has caused significant and damaging 362 releases of polluted lake water into the St. Lucie River and 363 Caloosahatchee River systems, while diminishing water storage 364 and supply, and 365 WHEREAS, the National Academies of Sciences, Engineering, 366 and Medicine in 2016 published their report on the “Progress 367 Toward Restoring the Everglades: The Sixth Biennial Review, 368 2016,” and 369 WHEREAS, “[t]he National Academies of Sciences, 370 Engineering, and Medicine established the Committee on 371 Independent Scientific Review of Everglades Restoration Progress 372 in 2004 in response to a request from the United States Army 373 Corps of Engineers ..., with support from the South Florida 374 Water Management District ..., and the U.S. Department of the 375 Interior ..., based on Congress’s mandate in the Water Resources 376 Development Act of 2000,” and 377 WHEREAS, as stated by the National Academies of Sciences, 378 Engineering, and Medicine, integrity issues and concerns that 379 led to the United States Army Corps of Engineers’ Dam Safety 380 Modification Study also resulted in the new water discharge 381 regulation schedule that was designed to limit high water levels 382 in the lake and thereby reduce the risk of catastrophic levee 383 failure until substantial progress is made in the dike 384 rehabilitation, and 385 WHEREAS, the National Academies of Sciences, Engineering, 386 and Medicine state that the Interim LORS08 Schedule implemented 387 in April 2008 lowered the maximum stage from 18.5 feet to 17.25 388 feet (National Geodetic Survey Vertical Datum), resulting in a 389 significant loss of water storage and supply, and 390 WHEREAS, the United States Army Corps of Engineers’ 391 implementation of its dike modifications is not expected to be 392 completed before fiscal year 2025 at the earliest, depending on 393 funding, and 394 WHEREAS, the National Academies of Sciences, Engineering, 395 and Medicine state that the United States Army Corps of 396 Engineers’ future lake discharge schedule is critically 397 important to future Comprehensive Everglades Restoration Plan 398 (CERP) decisions regarding storage north and south of the lake, 399 and that the “adoption of the LORS 2008 schedule, intended to 400 reduce life safety risks in light of structural problems with 401 the Herbert Hoover Dike ... alone reduced potential storage by 402 564,000 [acre-feet],” and 403 WHEREAS, the National Academies of Sciences, Engineering, 404 and Medicine concluded and recommended that “[t]he process to 405 revise the Lake Okeechobee regulation schedule should be 406 initiated as soon as possible in parallel with the Herbert 407 Hoover Dike modifications to inform near-term project planning 408 involving water storage north and south of the lake. The large 409 impacts on water storage with just modest changes in the lake 410 regulation schedule suggest that Lake Okeechobee is a central 411 factor in future considerations of water storage. Decisions made 412 on the future regulation schedule will affect storage needs both 413 north and south of the lake and overall restoration outcomes and 414 costs.... Expediting the revision to the lake regulation 415 schedule would also ensure that the process is complete 416 (including a required dam safety risk assessment) so that the 417 new schedule can be put into place as soon as the Herbert Hoover 418 Dike repairs are determined to be sufficient to sustain higher 419 water levels, thereby expediting ecological benefits to the 420 northern estuaries. Once other storage elements are constructed, 421 the lake schedule will likely need to be revisited to optimize 422 its operations considering the additional storage features,” and 423 WHEREAS, in making its decisions, apparently due to funding 424 or other limitations, the United States Army Corps of Engineers 425 has not been able to adequately respond to the tragic and 426 destructive consequences of its high-volume discharges into both 427 the St. Lucie River and Caloosahatchee River, their estuaries, 428 and the communities surrounding those invaluable rivers and 429 estuaries, and 430 WHEREAS, the United States Army Corps of Engineers’ high 431 volume water releases into the St. Lucie River and 432 Caloosahatchee River systems have resulted in disastrous impacts 433 to public health, property, and the environment for residents 434 living along and near these river and estuary systems, and 435 WHEREAS, the state, which has the ownership and ultimate 436 right of control over the C&SF to protect its residents, the 437 environment, and the public health, safety, and welfare, has a 438 right and obligation to alter the management, construction, and 439 maintenance of the dike and the C&SF overall to reduce the risks 440 of continuing harm to its residents and the environment, NOW, 441 THEREFORE,