Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. PCS (601444) for SB 10
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/06/2017           .                                

       The Committee on Appropriations (Simmons) recommended the
    1         Senate Substitute for Amendment (920390) (with title
    2  amendment)
    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 Engineersor “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.
   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.
  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.
  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,