WASHINGTON — The wheels of government move slowly when it comes to federal permits.
The permitting process under the National Environmental Policy Act (NEPA) required for U.S. Army Corps of Engineers projects usually takes an average of three and a half years. For the federal permits for the Everglades Agricultural Area (EAA) reservoir and storm water treatment area (STA) project, the corps started an expedited process last year with the goal of completing all of the requirements in just 19 months.
Corps officials’ efforts to complete complicated the NEPA process in less than half the time it normally takes are not enough for some elected officials.
In an Oct. 23 letter to Lieutenant General Semonite of the U.S. Army Corps of Engineers, Rep. Brian Mast and Sen. Marco Rubio accused the corps of “bureaucratic delays” stalling progress on the Everglades Agricultural Area (EAA) reservoir and storm water treatment area (STA).
The letter states: “The congressional authorization directed the Army Corps to expedite a report on the project, and to have it completed ‘not later than 90 days after the date of enactment.’ Today marks one year since the law’s enactment, and as of today, the corps is nine months late in addressing the concerns, recommendations, and conditions necessary to inform a final feasibility report from the Secretary.”
The corps did complete the requested report, said John Campbell of the U.S. Army Corps of Engineers. But the report referenced in the legislation is not the same thing as the documentation required by NEPA.
NEPA requires federal agencies to consider the potential environmental impacts of their proposed actions and any reasonable alternatives before undertaking a major federal action. A NEPA analysis includes review of how the project would affect things such as tribal lands and endangered species. Each federal agency impacted has to sign off on the NEPA analysis if it affects their area. Each of these agencies also has to conduct hearings for public comment. The corps has to receive and address the comments. The permitting process includes designated time frames for advertising proposed actions and periods of public comment before a permit is issued. For the EAA reservoir and STA, the corps has been doing everything they can to speed up the process and, barring delays, is on track to complete it in less than half the time the NEPA process normally takes.
Why the rush?
The original plan, approved in Florida Senate Bill 10, was for the corps to build the reservoir, and for South Florida Water Management District (SFWMD) to construct the STA so that it would be ready to treat water from the reservoir before it is released south. Since the massive 10,000-acre reservoir will take about three years to design and another five years for construction, it was initially anticipated STA work would start at the same time or even after the reservoir construction was under way. Until the reservoir was finished, there wouldn’t be water from the reservoir for the STA to treat. As of May 2019, Florida Department of Environmental Regulation had not yet even given notice to terminate the lease on state-owned land that lies in the STA footprint; that lease had a three-year termination clause.
In recent months the SFWMD governing board decided to move forward with the STA project before the reservoir design is complete. New Hope Sugar, a subsidiary of Florida Crystals, agreed to early termination of both the lease on SFWMD land in the project footprint and state land controlled by FDEP in the project footprint to meet the new SFWMD construction time line.
But the work can’t start until the federal permit is approved.
The corps started work on the NEPA requirements last year. At the Oct. 10 meeting of the South Florida Water Management District governing board, Lt. Col. Todd Polk, of the U.S. Army Corps of Engineers, said with no delays, the permit should be complete in May 2020.
Despite the corps’ best efforts to speed up the process, there still could be other delays. One potential stumbling block for the expedited time frame: NEPA requires the federal agency to address concerns of Native American Tribes impacted by a federal project.
According to a Truman Duncan, a representative of the Miccosukee Tribe, the federal government has not yet addressed the concerns the tribe has about the EAA reservoir plan. The tribe’s land is south of the planned site of the reservoir, downstream of the planned man made water storage feature that will have a footprint of 10,000 acres, with water stacked 24 feet deep, encircled by a 30-foot high dike. Since the project was first announced, tribal representatives have publicly questioned the potential impact on their lands.
Rep. Mast and Sen. Rubio have asked the corps to present a time line for completion of the permit at the South Florida Ecosystem Restoration Task Force meeting in Washington, D.C. on Tuesday, Oct. 29.
“I will address the EAA reservoir concerns next Tuesday at the task force meeting in Washington, D.C.,” said Mr. Duncan. “We cannot restore an entire ecosystem by destroying one area to help another.”
After the federal approvals are in place, the corps hopes to begin building the reservoir after three years of design. That would mean starting construction in 2023 and finishing around 2028.
The Oct. 23 letter, signed by Sen. Rubio and Rep. Mast states:
“We strongly urge your immediate attention to significant and ongoing concerns with the U.S. Army Corps of Engineers’ failure to comply with the law authorizing the Everglades Agricultural Area (EAA) Storage Reservoir. It has been conveyed by numerous sources that the Corps does not anticipate completion of the final feasibility report necessary to begin design and construction of the project until May 2020 at the earliest. This delay is simply unacceptable and represents a blatant disregard for congressional directives and intent.
“As you are aware, the EAA Storage Reservoir project was authorized as part of the Central Everglades Planning Project (CEPP) Post Authorization Change Report (PACR) in Sec. 1308 of the America’s Water Infrastructure Act of 2018 (PL. 115-270). The congressional authorization directed the Army Corps to expedite a report on the project, and to have it completed ‘not later than 90 days after the date of enactment.’ Today marks one year since the law’s enactment, and as of today, the Corps is nine months late in addressing the concerns, recommendations, and conditions necessary to inform a final feasibility report from the Secretary.
“The Corps bureaucracy has become an impediment to both the Jacksonville District’s relationship with non-federal sponsors and the administration’s implementation of national policies. The South Florida Water Management District and the State of Florida have accelerated completion of their responsibilities surrounding the planning and design of this critical project with little support from their federal partner, as also occurred during the development of the Section 203 CEPP PACR report. Moreover, in a December 14, 2018 response to our original inquiry into this matter, Secretary James committed to us that his office would work with your agency to identify ways to expedite the required tasks. However, despite his efforts, it is not clear that the Corps has implemented any efficiencies to assist the expedited completion of the report. The Corps’ apparent disregard for directives issued by Congress and the Assistant Secretary of the Army for Civil Works also directly undermines President Trump’s efforts to expedite critical infrastructure projects and reduce red tape. Given the administration’s significant investment in Everglades restoration through the president’s updated $200 million FY20 budget request, it is imperative that the design and construction of the EAA Storage Reservoir not be delayed any further as a result of bureaucratic mismanagement.
“We are confident the federal-state partnership to restore the Everglades can succeed with sustained commitments from all partners. We request an updated time line for completion of the final report, including a description of outstanding issues remaining to be resolved, to be provided to our offices and presented at next week’s South Florida Ecosystem Restoration Task Force meeting in Washington, D.C.”