For background information on the new A-2 Reservoir and A-2 Stormwater Treatment Area ("A-2 STA") being developed in the Everglades Agricultural Area (collectively the "EAA Reservoir Project"), click here. At a basic level, the A-2 Reservoir component will store water from Lake Okeechobee, and the A-2 STA component will convey water from Lake Okeechobee south to the Everglades. The EAA Reservoir Project is considered today's most influential Everglades restoration project.
On August 26, 2021, Okeelanta Corporation, United States Sugar Corporation, and Sugar Cane Growers Cooperative of Florida (collectively the "Sugar Companies") filed three separate Complaints against the United States Army Corp of Engineers ("Army Corp") in federal court in the Southern District of Florida, alleging that the Army Corp's implementation of the EAA Reservoir Project has violated the Water Resources Development Act and National Environmental Policy Act. Okeelanta Corporation, et. al. v. United States Army Corps of Engineers, 9:21-cv-81505 (S.D. Fla. 2021). Since these cases present common legal issues, the presiding Judge Middlebrooks ordered consolidation into a single case. [Dkt. 20].
The lawsuits boil down to demands that additional water is stored for sugar cane irrigation rather than conveyed south through Water Conservation Areas to the Everglades. The Sugar Companies' legal arguments are based off of a certain Savings Clause in the Water Resources Development Act ("WRDA") of 2000, in which there is a textual basis for protecting agricultural water supply.
The Savings Clause states in relevant part: "until a new source of water supply of comparable quantity and quality as that available on the date of enactment of this Act is available to replace the water to be lost as a result of implementation of [the Comprehensive Everglades Restoration Plan], the Secretary and the non-Federal sponsor shall not eliminate or transfer existing legal sources of water, including those for-- (i) an agricultural or urban water supply..." WRDA 2000, § 601(h)(5)(A)(1).
The lawsuits allege implementation of the EAA Reservoir Project violates the Savings Clause in two ways:
1. The A-2 STA is being constructed prior to the A-2 Reservoir when the two components should allegedly be developed concurrently.
The Savings Clause requires a constant water supply for irrigation until a new source is available. The A-2 Reservoir is a new source of water supply. The A-2 STA will at some point transfer water south, and while the South Florida Water Management District ("SFWMD") has already started developing the A-2 STA, construction of the A-2 Reservoir has not begun. The Sugar Companies complain that the A-2 Reservoir may take years longer to develop than the A-2 STA, which will allegedly lead to a transfer of required agricultural water supply to Everglades restoration without an adequate replacement for irrigation.
However, any alleged transfer depends on future management of Lake Okeechobee rather than whether a new STA is being constructed. The Army Corp is in charge of such management, but the Army Corp has not conveyed water to the A-2 STA yet, as it is not scheduled for completion until 2023.
The Army Corp's position at this stage is that any water that may be transferred to the A-2 STA prior to construction of the A-2 Reservoir will be water that would have otherwise been discharged to the coasts. As such, any future use of water is not expected to affect agricultural water supply, meaning that the allegations in the Complaint do not state an injury in fact sufficient to substantiate the lawsuits. For this reason, the Army Corp filed a Motion to Dismiss centering on the Sugar Companies' failure to state a concrete and likely injury and lack of standing. [Dkt. 25].
2. The Sugar Companies complain that the Army Corp is basing its compliance with the Savings Clause on water levels from 2018, as opposed to 2000 when water levels were higher.
A higher water level allegedly means more water must be allocated to agriculture. The Sugar Companies are seeking a determination that water levels be measured prior to Congress enacting the Comprehensive Everglades Restoration Plan, at the "pre-CERP baseline," as it existed in 2000. This argument is also rooted in the above text of the Savings Clause.
While the EAA Reservoir Project was initially authorized in 2000, Congress provided additional authorization and approval in 2018 and 2020 to support the project’s plan developed by SFWMD. The above Savings Clause is part of WRDA, and a new version of WRDA is passed every 2 years. The Army Corp will likely argue a more recent authorization date is proper, rather than using outdated water levels for its science-based implementation of the EAA Reservoir Project. This will be a question of judicial interpretation. However, the Army Corp has not yet clarified its position on this point yet.
The Court's Order indicates that the lawsuits will be resolved based on briefing alone, which is expected to occur throughout 2022, and requires the parties to mediate. [Dkt. 20]. The Army Corp's Motion to Dismiss for lack of standing is pending. The Army Corp also argues in its Motion that NEPA, enacted for environmental protection, is an inappropriate means for the Sugar Companies to sue for economic damages.
The Army Corp is prioritizing Everglades restoration, as seen in its implementation of the EAA Reservoir Project and other CERP projects, which is good to see. However, its legal team has work to do in foreseeing and addressing these kinds of lawsuits.
In any case, both components of the EAA Reservoir Project have been authorized by U.S. Congress, and the A-2 Reservoir will contribute towards both agricultural water supply and Everglades restoration despite any alleged water transfers that occur before its completion. The Army Corp and SFWMD have entered a Project Partnership Agreement regarding its construction and are currently designing it.
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