Big Sugar strikes again on Everglades Reservoir, sues Army Corps of Engineers

In August of 2021, three industrial sugar entities filed a federal lawsuit against the Army Corps of Engineers regarding the use of a critical planned Everglades restoration project: the EAA Reservoir. Their claim was based on a distorted, far-fetched interpretation of what’s known as the “Savings Clause,” a provision from a 2000 law which was intended to ensure that the new infrastructure being built to restore the Everglades didn’t transfer water supply away from existing water users.

It was an interpretation not shared by any other stakeholder involved in south Florida’s multifaceted water management. The claim seemed obviously baseless, an apparent “grasping at straws” to maintain a chokehold on every drop of water by a special interest whose complete monopoly was slipping even only marginally closer to equal share.

It didn’t seem like anything that could hold water, so to speak. However, if the argument was accepted by the courts, it could have far-reaching implications on Everglades restoration, setting a precedent contrary to the true intent of the decades-old plan to save a National Treasure and resolve some of Florida’s biggest water-quality issues. So, we’ve kept a watchful eye on the proceedings.

As is often the case with these proceedings, there hadn’t been any noteworthy developments over the past year, until July, when “Big Sugar” must have activated some of their proxies, who filed an official “friend of the court” brief (amicus brief) in support of the plaintiff’s claims. When that amicus brief was accepted by the case judge, it established on-the-record support from external entities in favor of the Sugar Industry’s argument.

That’s when we and a handful of other organizations recognized a need to throw our hats in the ring and offer our support to the Army Corps’ defense. So, on Sep. 7th, 2022, we joined seven other organizations, including The Everglades Foundation, Sanibel-Captiva Conservation Foundation (SCCF), and the Florida Keys Fishing Guides Association, in a joint amicus brief filed by the Everglades Law Center.

Our amicus brief highlights the inaccuracies of the Sugar Industry’s claims and asserts that their challenge of the Army Corps’ actions is unsubstantiated. The South Florida Water Management District (SFWMD) also filed their own amicus brief in support of the Army Corps separately.

The Sugar Industry is challenging the Army Corps’ approval of the EAA Reservoir project, a deep-water reservoir and treatment marsh currently under construction south of Lake Okeechobee designed to store, treat, and send water south to the Everglades. They claim that the Corps’ plan for the reservoir violates the Savings Clause as outlined in a section of the Water Resources Development Act of 2000 (WRDA 2000), originally a bill entitled “Restoring the Everglades, an American Legacy Act.”

As it was written in that 2000 bill, the Savings Clause was specifically to apply only to Comprehensive Everglades Restoration Plan (CERP) identified projects, of which there were 68. The intent of the Savings Clause was to ensure CERP projects wouldn’t directly reduce water supply available to existing authorized users, like the Sugar Industry south of the lake. So, to dig into this alleged violation of the Savings Clause, we have to first apply a brief microscope to CERP and its intentions.

CERP was developed over decades to restore the withering Everglades, a key to which was re-establishing the flow of fresh water from Lake Okeechobee south through the Everglades. In the early twentieth century, the lake was dammed and ditched to facilitate Florida’s early development. The Herbert Hoover Dike was built around the lake, establishing its present form and cutting off the natural flow of water south.

Due to the system’s manipulation, the Everglades received less than a third of its natural flows, so CERP was conceived and approved with one major goal in mind—send more water south to re-hydrate the Everglades and Florida Bay. It was a massive undertaking, the largest ecosystem restoration project of its kind, and it would require major infrastructure upgrades to facilitate the flow of water south.

CERP was congressionally authorized in 2000 with bipartisan support. In doing so, the Savings Clause was added to prevent restoration projects designed to send more water south from reducing water supply available for legal users.

Essentially, CERP projects would not mean less water for existing users, like the Sugar Industry. The Savings Clause was the assurance necessary to make CERP a win-win and an agreeable plan for all stakeholders. It was like a parent guaranteeing their only-child toddler that their little brother on the way wouldn’t get to use any of their toys—no need to share, more toys would be provided for the little one. Maybe the little brother wouldn’t be so bad after all?

So, you have to understand that the Savings Clause is inextricably linked to CERP and its 68 authorized projects.

Now, the Sugar Industry’s actual challenge to the Corps brings in yet another component of south Florida’s water management: Lake Okeechobee operations plans.

Lake Okeechobee operations are essentially the way water is distributed throughout the now-connected Lake Okeechobee system. It’s when, how much, and where the water is released: east coast, west coast, south to the Everglades, or to water supply. Lake operations govern the height of the lake at any given time (e.g. 14 feet), which in turn affects the amount of water supply available.

Lake operations plans, written and executed by the Army Corps, are periodically revamped for a variety of reasons, based on a variety of factors. In 2008, the Lake Okeechobee operations plan was rewritten in an effort to lessen the impact of high-volume water discharges to the coastal estuaries and reduce the likelihood of a catastrophic failure of the aging Herbert Hoover Dike.

To address those concerns, the resulting plan, known as LORS 2008, was written to keep the lake at lower heights. Specifically, that rewrite would keep the lake about 1-1.5 feet lower than the previous plan at any given time, reducing the water supply available in the lake by about 500,000 acre-feet. Although it is currently under another rewrite, LORS 2008 is still in effect today.

Now to their claim: the Sugar Industry contends that the Army Corps of Engineers violated the Savings Clause because they didn’t design the EAA Reservoir to provide that reduction in available water supply (500,000 acre-feet) back to the Sugar Industry to be available for their use.

It's important to highlight here that the “reduction” or “loss” of water from the LORS 2008 rewrite was only a reduction of available supply, not necessarily an actual loss or forced cutback of used irrigation by the Sugar Industry. In the 14 years that LORS 2008 has been in effect, the Sugar Industry has only experienced water cutbacks in one of those years. Still, their harvest yield that year was better than average. Even with the reduced availability, they’ve still received more than enough water—their buffer just isn’t quite as big as it used to be.

With their claim, they essentially want the EAA Reservoir—a cornerstone Everglades restoration project meant to send water south—to make up for a loss in available water supply that resulted from concerns in 2008 over damaging coastal discharges and human safety around a fading dike, neither of which were a part of CERP. Basically, they want their extended buffer back, and they want Everglades restoration to pay for it.

The danger with this interpretation of the Savings Clause is not only that it seeks to establish the EAA Reservoir primarily as an agricultural water supply reservoir, but that it sets the precedent to apply the same flawed logic upon other Everglades restoration projects, forcing them to make up for any reduction in available irrigation water supply for almost any reason, rather than only those related to CERP.

Under the Sugar Industry’s argument, restoration projects would need to be planned, constructed, and operated to guarantee water supply users won’t lose a drop regardless of how future factors unrelated to CERP might affect water supply availability. Does that mean an upgraded canal and pump system in the central Everglades authorized by CERP to facilitate more water south would first have to restock water supply availability lost to a change in rainfall or a new development or the threat of saltwater intrusion or some other statutory requirement of the Corps?

That would certainly make sending water south and actually restoring the Everglades an even greater challenge—it would at best be an afterthought. Unfortunately, it would remake the law that Congress called the “Restoring the Everglades, an American Legacy Act” into an insurance policy for Big Sugar, potentially forcing future restoration projects to fulfill the needs of water supply first, before providing any benefit to the environment—if ever.

The most alarming part about this situation is also the least surprising: this isn’t the first time the Sugar Industry has attempted to insert the Savings Clause somewhere it doesn’t belong. Rather, this is just another flank of a multi-tiered attack to guarantee themselves every last drop.

It started with the rewrite process of that Lake Okeechobee operations plan from 2008 (LORS 2008). After more than a decade of implementation, that plan was going to be overhauled again to take advantage of new capacities that would result from the rehabilitation of the Herbert Hoover Dike.

An excruciatingly complex process, the rewrite was expected to take years and require a large team of experts to develop, so the Army Corps created what’s called a Project Delivery Team (PDT). The PDT would lead the creation of the new Lake Okeechobee System Operating Manual (LOSOM), incorporate stakeholder feedback, and keep the project on timeline.

The PDT would be instrumental in the development of LOSOM, so when it was uncovered that sugar lobbyists had been planted on the PDT, other stakeholders were naturally concerned. Thankfully, this attempt was exposed, and the lobbyists were removed from the PDT.

Then, a few months later in April of 2020, amidst the cover of an unraveling global pandemic, the Sugar Industry tried to sneak harmful language into WRDA 2020 that would directly write the Savings Clause into the LOSOM plan. For the same reasons the Savings Clause doesn’t apply to the old plan—LORS 2008—it also shouldn’t apply to the new plan, LOSOM. Neither are considered CERP.

Again, we revealed this attempt, we rallied public pressure, and the wording was removed.

Then there was Senate Bill 2508, the “conforming bill” that turned the 2022 Florida state legislative session into a make-or-break moment for Florida’s water quality. Containing a myriad of other provisions that would be downright criminal for the state’s environment, Senate Bill 2508 again sought to secure Savings Clause language baked into the still-developing LOSOM plan.

The proposed policy within Senate Bill 2508 was bad enough, but the real corruption behind it was in its filing process. Conforming bills are not meant to create substantial new policy. Rather, they’re an expedited way to make minor changes to existing policy. As such, their process for review and approval are extremely limited compared to a new piece of legislation.

Senate Bill 2508 was far from a minor change to existing policy. It was a wholesale change to a number of water-quality improvement efforts, not the least of which was the potential upheaval of LOSOM. It was a strategic play to push a special interest’s agenda through a bureaucratic process that would significantly limit the public’s opportunity to object.

But, after a monumental wave of last-minute public opposition led by Captains For Clean Water, the bill was amended several times and passed by the Florida State Legislature before ultimately getting a well-deserved veto from Florida Governor Ron DeSantis. Again, most crucially, an attack on progress and another attempt to weaponize the Savings Clause had been shut down.

In reference to the sneak attack on WRDA 2020, the Everglades Foundation once wrote, "Instead of being the shield that it was intended to be, [the Savings Clause] has become a sword for the Sugar Industry to oppose projects or demand they be reconfigured to its benefit and the environment’s detriment.”

That unfortunately still seems to be the case. Now, this lawsuit represents that sword. They swing it loudly and without remorse. Its aim is focused on an improbable target, but it’s one that, if struck, would result in grave consequences.

It’s in the court’s hands now. Beyond filing the amicus brief, there’s nothing more we can do to influence this process. Both sides of the lawsuit—the Corps and the Sugar Industry—will file another round of formal written briefs to argue their case over the next couple months. After that, we can expect that the court will hold a hearing to take oral arguments from both sides’ legal teams without witnesses present. That should take place in late 2022 or early 2023, around which time a decision will be made.

Their claim is a stretch, an obviously myopic interpretation of the law that shouldn’t hold up in court, but if they do win the case, it essentially establishes their interpretation of the Savings Clause (as discussed earlier) as legal precedent. That would mean significantly less water moving south to restore the Everglades via the EAA Reservoir, as well as the potential for future Everglades restoration projects to be limited in their ability to send water south.

As the past has proven, regardless of how this case concludes, it most certainly won’t be the end of the story. They wield this sword now, but there are other hidden daggers still sheathed, waiting to strike. But with support from tens of thousands of people like you, we will be ready to fight the next attempt against water-quality progress. We’ll be ready to sound the alarm—we need you to be ready to answer the call. Together, we’ll make sure that clean water comes out on top. And so the fight continues…

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