Everglades Restoration: Modified Water Deliveries Project

CRS Report for Congress
Everglades Restoration:
Modified Water Deliveries Project
Pervaze A. Sheikh
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Summary
The Modified Water Deliveries Project (Mod Waters) is a controversial ecological
restoration project in south Florida designed to improve water delivery to Everglades
National Park. The implementation schedule of Mod Waters is of interest to Congress
partly because its completion is required before the implementation of portions of the
Comprehensive Everglades Restoration Plan. Concerns have been raised in hearings on
the Administration’s FY2007 budget request regarding the cost of implementing the
project, project delays, and the U.S. Army Corps of Engineers’ role in funding the
project. Currently, the project is eight years behind schedule and will cost an estimated
$400 million to build. Part of the delay is due to extended efforts to acquire land from
private and state owners. Federal agencies have used eminent domain to acquire some
lands, a process that has been contentious. Further, funding for the project in Interior
appropriations acts (FY2004-FY2006) is being conditioned on the State of Florida
meeting water quality standards by reducing excessive phosphorus, among other things.
This report provides background on Mod Waters and discusses issues relating to its
current status, funding, and land acquisition needs. This report will be updated as
warranted.
Most Recent Developments
The Modified Waters Deliveries Project (Mod Waters) is being implemented by the
Department of the Interior (DOI) and the U.S. Army Corps of Engineers in southern
Florida. (See Figure 1.) For FY2007, the Administration has requested a total of $48
million for the project: $35 million through the Corps and $13.3 million through the DOI.
The House-passed Interior and Energy and Water appropriations bills, and the Senate-
reported Interior appropriations bill, provide the requested amount of funding for Mod
Waters for FY2007. The Senate-reported Energy and Water bill, however, provides no
funding for Mod Waters (for the Corps) for FY2007 and limits funds to $35 million for
the Corps to construct this project. The Senate Appropriations Committee report on the
Energy and Water bill (S.Rept. 109-274) states that Mod Waters should be solely funded
by the DOI since it benefits Everglades National Park.

Congressional Research Service ˜ The Library of Congress

DOI and the Corps jointly funded Mod Waters in FY2007. Previously, DOI had
solely funded the project. Joint funding of Mod Waters has generated controversy and
raised the question of whether the Corps is authorized to receive appropriations to work
on the project. The Administration’s position appeared to be for the Corps to pay for
roughly two-thirds of the remaining $146 million required to complete the project from
FY2007 to FY2009.¹ For FY2006, $25 million was appropriated to the DOI, and $35
million to the Corps for this project.
A provision in the Interior Appropriations Act for FY2006 (P.L. 109-54) conditions
funding for Mod Waters on meeting state water quality standards. This provision cites
provisions in the FY2004 Interior Appropriations Act, which states that funds
appropriated for Mod Waters will be provided unless the Secretary of the Interior,
Secretary of the Army, Administrator of the EPA, and Attorney General indicate in a joint
report (to be filed annually until December 31, 2006) that water entering the A.R.M.
Loxahatchee National Wildlife Refuge and Everglades National Park does not meet state
water quality standards, and the House and Senate Committees on Appropriations respond
in writing disapproving the further expenditure of funds.² The FY2007 Administration
request did not contain this condition; however, the House-passed Interior Appropriations
bill and Senate-reported bill both contain this provision.
Background
The Modified Water Deliveries Project was authorized by the Everglades National
Park Protection and Expansion Act of 1989 (P.L. 101-229; 16 U.S.C. §§410r-5, etc.) to
improve water deliveries to Everglades National Park (ENP) and, to the extent possible,
restore the natural hydrological conditions within the park. The completion of Mod
Waters is expected to be significant step towards the implementation of the
Comprehensive Everglades Restoration Plan (CERP; Title VI, P.L. 106-541, the Water
Resources Development Act of 2000 [WRDA 2000]).³ Indeed, Mod Waters must be
completed before appropriations can be made to construct other restoration projects in the
east Everglades (§601(b)(2)(D)(iv) of WRDA 2000).
Mod Waters is expected to consist of structural modifications and additions to the
Central and Southern Florida Project (C&SF Project) to improve the timing, distribution,
and quantity of water flow to the Northeast Shark River Slough.⁴ Increased water flow

¹ U.S. Dept. of the Interior, News Release, “FY2006 Interior Budget Emphasizes Commitments,
Cooperative Efforts, Performance and Fiscal Restraint,” Feb. 7, 2005. Accessed March 14, 2005
at [http://www.doi.gov/news/05_News_Releases/050207a].
² For more information, see CRS Report RL32131, Phosphorus Mitigation in the Everglades, by
Pervaze Sheikh and Barbara Johnson.
³ For more information Florida Everglades restoration, see CRS Report RS20702, South Florida
Ecosystem Restoration and the Comprehensive Ecosystem Restoration Plan, by Nicole Carter.
⁴ Originally, the Corps was asked to alter water flow in the Everglades to control flooding, open
land for agriculture, and provide water supplies to urban areas. The cornerstone of this effort was
the Central and Southern Florida Project, which was authorized by the Flood Control Project Act
of 1948 (ch. 771, 62 Stat. 1171). This project resulted in nearly 1,000 miles of canals, 720 miles
(continued...)

to the Northeast Shark River Slough will increase water supplies in the ENP and is
expected to improve the natural habitat and hydrology of a portion of the Everglades
ecosystem.⁵ There are four components to Mod Waters: 8.5 SMA flood mitigation,
Tamiami Trail modifications,⁶ conveyance and seepage control features, and Combined
Structural and Operational Plan (CSOP). The 8.5 SMA flood mitigation and Tamiami
Trail modifications are discussed below.
Figure 1. The 8.5 Square Mile Area in Southern Florida
^Source:^A^d^{apted f}^r^om^th^{e U.S. A}^r^m^y^C^o^rps^of^En^gⁱⁿ^eers^.
Mod Waters is expected to flood some residential and agricultural areas adjacent to
the park. Legislation authorizing this project instructs the Secretary of the Army to
determine if residential and agricultural areas within or adjacent to the 8.5 SMA will be
flooded from the hydrological changes of Mod Waters (§104(a)). If these areas are under
threat of flooding, the law mandates that a flood protection system must be developed for
the area (§104(b)). To prevent flooding, several mitigation features have been developed.
One of these features is called Alternative 6D, which is a plan for protecting residents in
the 8.5 SMA from flood waters resulting from the project.
The purpose of the Tamiami Trail modification is to identify alterations to the
highway that would improve water flows for Northeast Shark River Slough and
Everglades National Park. A general reevaluation report and environmental impact

⁴ (...continued)
of levees, and more than 200 water control structures (e.g., dikes, dams and pumping stations).
⁵ For more details, see U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades
National Park and South Dade Canals (C-111) Projects accessed on July 20, 2006, at
[http://www.saj .usace.army.mil/dp/mwdenp-c111/index.htm] .
⁶ Tamiami Trail is a highway connecting Miami with the western shore of Florida.

statement have been prepared for this project. These reports include a recommended
alternative calling for two bridges that would allow water flows to pass across the
highway. Construction is expected to begin in 2007.
Issues Surrounding the Modified Water Deliveries Project
Three issues are being debated about the implementation of Mod Waters, including
its estimated funding level, project delays, and the controversy surrounding land
acquisition in the 8.5 SMA.
Funding. The question of whether the Corps is authorized to fund Mod Waters was
an issue during the deliberation over the FY2006 Energy and Water Appropriations.
Arguments used to support the proposition that the Corps could be authorized to directly
fund Mod Waters cite §102(f) of the Everglades National Park Protection and Expansion
Act of 1989 (P.L. 101-229), which is the only section that authorizes funding and
authorizes such sums as may be necessary to carry out the provisions of the act. This
provision would include §104, which authorizes Mod Waters, though it primarily
authorizes activities carried out by the Corps. Arguments used to argue against Corps
authorization to fund Mod Waters could cite the long history of transfers from the NPS
to the Corps, which could be argued to establish a strong precedent for the lack of Corps
authority. Due to these conflicting arguments and the lack of clear legislative intent, the
authority for the Corps to directly fund Mod Waters might still remain debatable. In the
FY2007 Energy and Water Appropriations debate, the Senate Energy and Water
Appropriations Committee has not provided funds to the Corps for Mod Waters.
Rising project costs for Mod Waters has led some critics to question its viability.
The original cost of completing Mod Waters was estimated at $81.3 million in 1990.⁷⁸
The current estimated cost for completing the project is $398 million. To date,
approximately $252 million has been appropriated for constructing and implementing
Mod Waters, and $146 million more is estimated to be needed to finish the project (i.e.,
FY2007-FY2009).⁹ Some contend that changes in the implementation plan, the rising¹⁰
cost of land acquisition, and flood mitigation requirements have led to higher costs.
This was reflected, according to some, in the changes in the 1992 General Design
Memorandum, which were derived from updated modeling data and the project’s need
to be compatible with CERP.

⁷ U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades National Park,
General Design Memorandum, Jacksonville District, June 1992.
⁸ U.S. Dept. of the Interior, FY2006 Budget Justification, National Park Service (Washington,
DC, 2005).
⁹ Of the total amount of funds already spent and estimated to complete Mod Waters,
approximately $200 million is for land acquisitions and approximately $198 million is for
construction, design, and monitoring, among other things.
¹⁰ U.S. Dept. Of Interior, Office of Inspector General, Modified Water Deliveries to Everglades
National Park, Audit Report, Rept. C-IN-MOA-0006-2005(Washington, DC: March 2006).
Hereafter referred to Audit Report.

Project Delays. Mod Waters was originally estimated to be completed by 1997,
yet now some argue it is unclear as to when or even whether the project will be
completed. The FY2006 Administration request indicates that funding will be requested
through FY2009. Some contend that delays are due to the undefined roles of DOI and the
Corps in implementing the project, a lack of a unified approach to restoration, redesigning
the project, and litigation regarding the 8.5 SMA and Tamiami Trail portion of the¹¹
project. Some argue that the delay in implementing Mod Waters jeopardizes
implementation of CERP projects, causes further degradation within Everglades National
Park, and will set a precedent for delays and deliberation regarding land acquisition
activities when CERP projects are being implemented.¹² Some proponents of the project
contend that ongoing land acquisition in the 8.5 SMA will minimize any future delays.
Land Acquisition in the 8.5 Square Mile Area. Implementation of Mod
Waters is dependent on acquiring land in the 8.5 SMA. Land acquisition in this area is
controversial because there are several unwilling sellers and the Corps is exercising
eminent domain in some cases to acquire necessary lands.
The 8.5 SMA is a region adjacent to ENP of approximately 5,600 acres. Due to its
low topography and lack of drainage, parts of the 8.5 SMA frequently flood for several
months during the year. With the implementation of Mod Waters, the Corps expects that
most of the 8.5 SMA would flood. The Corps developed a flood mitigation plan in 1992
to provide flood mitigation for residents in the 8.5 SMA and allow for the implementation
of Mod Waters. However, the 1992 Plan was later deemed “unworkable” by the
superintendent of Everglades National Park, who claimed that it would not provide full
flood protection for current and future residents in the 8.5 SMA.¹³
The Corps began to devise a new plan for Mod Waters and the 8.5 SMA in 1999,
which considered several alternative plans, including the complete buyout of the 8.5
SMA. A new plan, referred to as Alternative 6D, was proposed by the Corps in 2000.
This plan includes a perimeter levee, seepage canal, pump station, and storm water
drainage for flood protection in the 8.5 SMA. Instead of a complete buyout of the 8.5
SMA, this plan proposed the acquisition of approximately 2,500 acres in the 8.5 SMA
(39% of the total area) and the acquisition of 77 residential tracts (24 tenant-occupied
tracts and 53 owner-occupied tracts) in the 8.5 SMA (13% of the total number of
“residential areas” in the 8.5 SMA).¹⁴
Some residents who were unwilling to sell their land in the 8.5 SMA filed suit
against the Corps in 2001. They asserted that the Corps does not have the authority to
implement a plan that does not protect the entire 8.5 SMA from flooding, and that the

¹¹ Audit Report.
¹² §601(b)(2)(D)(iv) of WRDA 2000 provides that Mod Waters must be completed before
appropriations can be made to construct other restoration projects in the east Everglades.
¹³ U.S. House Resources Subcommittee on National Parks and Lands, Issues Regarding
Everglades National Park and Surrounding Areas Impacted by Management of the Everglades,^th^st
oversight hearing, April 27, 1999, 106 Cong., 1 sess. (Washington, DC: GPO), Serial No. 106-

24.

¹⁴ A residential area contains either a fixed home, mobile home, or travel trailer.

Corps does not have the authority to exercise eminent domain or spend money to acquire
their land through condemnation.¹⁵ On July 5, 2002, a district judge restricted the Corps
from veering from its original mandate to protect the entire community from flooding, and
prevented the Corps from acquiring land in the 8.5 SMA. The Corps later appealed this
decision and are now acquiring lands in the area.
To help implement Mod Waters, Congress included a provision in the Consolidated
Appropriations Resolution for FY2003 (Division F, Title I, §157 of P.L. 108-7) that
authorizes the Corps to implement a flood protection plan (Alternative 6D) for the 8.5
SMA as part of Mod Waters. Three conditions are specified in the section authorizing
implementation of Alternative 6D: (1) the Corps may acquire residential property needed
to carry out Alternative 6D if the owners are first offered comparable property in the 8.5
SMA that will be provided with flood protection; (2) the Corps is authorized to acquire
land from willing sellers in the flood-protected portion of the 8.5 SMA to carry out the
first condition; and (3) the Corps and the nonfederal sponsor may carry out these
provisions with funds provided under the Everglades National Park Protection and
Expansion Act of 1989 (P.L. 101-229; 16 U.S.C. §410r-8) and funds provided by the DOI
for land acquisition for restoring the Everglades.
Some critics of land acquisition in the 8.5 SMA base their arguments on the same
principles used to criticize the acquisition of the entire 8.5 SMA — that the federal
government should not exercise eminent domain to remove unwilling sellers and that the
federal government is obligated to protect all residential areas from floods under P.L. 101-
229. Some critics also argue that there are several unwilling sellers in the area and that
if condemnations proceed, delays due to litigation will be inevitable and will eventually
harm the ecosystem.¹⁶ The Corps asserts that there are several willing sellers in the 8.5
SMA.¹⁷ Approximately 78% of the 843 needed tracts have been acquired, and of the
remaining 189 tracts, 57% are in negotiations for acquisition and 43% are expected to be
condemned.¹⁸

¹⁵ Garcia vs. United States, No. 01-801-CIV-Moore, slip op. (D.S.D. FL. July 5, 2002).
¹⁶ Michael Grunwald, “Dispute Stalls Everglades Project,” Washington Post (July 17, 2002):
A21.
¹⁷ The Corps asserts its power for condemnation is authorized under 40 U.S.C. §257 and 33
U.S.C. §591. This authority is extended to practices of flood control under 33 U.S.C. §701
according to the Corps. Personal communication with Barry Vorse, U.S. Army Corps of
Engineers, on Sept. 7, 2002.
¹⁸ Dennis Duke, Modified Water Deliveries Update, Presented at the 8.5 Square Mile Public
Meeting (Homestead, FL: Dec. 2005).