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Item L1 To: Board of County Commissioners d;dI--- From: James T. Hendrick, County Attorney 'VI(} Re: Amicus Curiae Brief in support of So.FI ater Management District As I have advised each of you, the County Attorney's Office has mailed, for filing with the Florida Supreme Court, a Notice withdrawing Monroe County's Motion for leave to file the captioned Amicus Curiae brief. This action was taken, not because the position advocated in the Brief lacked merit, but because Monroe County's participation in the appeal had obviously become counterproductive. Each of you has been besieged with communications from the Petitioners and others acting at their behest, demanding that the County abandon what has been mischaracterized as a Brief on behalf of lIBig Sugar". Editorial commentary has consisted primarily of innuendo and ad hominem attack, leading the public to conclude that the BOCC was tricked or misled into supporting the Water Management District's defense of the Everglades Forever Act. One of the more popular conspiracy theories hypothesizes that a memb.er of this Board orchestrated BOCC approval of the brief, in order to further an (as yet unspecified) evil purpose of the Water Management District. Public dialogue has been degraded to the point that one local luminary was heard to opine at a Key West bar that the new car I'd been seen driving must have been paid for by lIBig Sugar". It has become painfully obvious to me that the quiet voice we had hoped to raise in support of Everglades Restoration has been drowned in the cacophony flooding your offices. As your attorney, I have concluded that whatever small influence this County Commission might have via its Brief is greatly outweighed by the unanticipated and counterproductive commentary that it continues to generate. Your vote authorized, but did not require, this Office to file an Amicus Brief. Accordingly, the decision whether to proceed rests with this Office, and proceeding no further appears to be in the best interest of the County at this time. However, I am compelled to correct some of the ridiculous assertions and speculation that passed for public comment in this misbegotten matter. First, the history of the County's defense of the Everglades Forever Act should not be allowed'to be rewritten or expunged by politically-motivated revisionists. The Amicus Brief was not Monroe County's first effort to defend the Act; rather, the policy of the BOCC has for many years been to support the Act and the Everglades Restoration program which it authorized and funds. Last year, the BOCC authorized this Office to file an Amicus brief in Florida Supreme Court case #95,044, opposing Former Governor Claude Kirk's effort to derail Everglades restoration via his suit challenging it as a "nuisance". The County's Motion to fHe a brief in that case stated: lIMonroe County strongly supports the state's efforts to restore the Everglades", and the Brief filed in that case recited the following County policy: l-:' Monroe County strongly supports the ongoing efforts of the state and federal governments to improve water quality in the Everglades. This program which is provided for in the Everglades Forever Act... will first undertake comprehensive hydrologic studies to determine the best system-wide solution to Everglades water quality. Then, through the Everglades Construction Project, the state and federal governments will undertake the largest-ever environmental cleanup of its kind. (Kirk Amicus Brief, at p.9) Those who now claim that the County has no interest in the Everglades Construction Project, or was tricked into defending it, have conveniently overlooked long-established BOCC policy supporting the Everglades Forever Act and Everglades restoration. This Office recommended that Monroe County join with the South Florida Water Management District to defend the funding for the Everglades Construction Project, because that recommendation was consistent with established Board policy to support both the District and the Project. Second, The Everglades Construction Project will not just clean up pollution in the Everglades Agricultural Area; rather, it is designed to provide real and substantial benefits to the people and economy of South Florida, including Monroe County. The widely- published scientific information disseminated over the past several years should leave no reasonable person in doubt that the Program will put into place plans and programs for improving water quantity reaching the Everglades, correcting longstanding hydro period problems, increasing the total quantity of water flowing through the system, providing water supply for the Everglades National Park, urban and agricultural areas, and Florida Bay, and replacing water previously available from the Coastal Ridge in areas of Southern Dade County. Section 373,4592{1 )(f), Florida Statutes. Is it even debatable that the threat to our fresh water supply must be addressed, at the earliest possible time? That is one of the primary objectives of the water engineering construction to be funded by the Everglades Forever Act. Delays caused by funding disputes are adverse to the County's interest. [For a more detailed description of the environmental significance of this Program, please see the separate summary that I have provided to you.] Third, it is misleading to say that the County's brief was in support of IIBig Sugar". The County sought leave to file in the Florida Supreme Court a brief in support of the South Florida Water Management District, not private business interests. IIBig Sugar" is not a party to the lawsuit. More importantly, the tax imposed on agricultural interests in the Everglades Agricultural Area isn't even at issue in the case. Petitioners made it abundantly clear in their brief to the Florida Supreme Court that they are seeking only to invalidate a tax paid by them as non-agricultural taxpayers; if they were to prevail, the Judgment they hope to obtain would not require "Big Sugar" to pay one cent in additional taxes to make up the $200+ million in lost revenue. Agriculture's share of the restoration cost was settled in the Federal litigation. The only thing that Petitioners' victory would produce is a huge hole in the complex and carefully-negotiated funding package for Everglades Restoration. And it is immaterial whether others may have their own reasons to support the Act; if Monroe County has good reason to support the Act, should it neglect to do so just because the Act is supported by a politically-unpopular business? Finally, a brief response.to two disingenuous questions raised in a local newspaper: Why did no other County join as Amicus? Perhaps because no other County is as vitally interested in the issue as Monroe: most of our land mass is in the Everglades; Florida Bay is our back yard; our water quality and water supply depend on restored Everglades hydrology. The better question is, why has no environmental organization joined the Barley Petitioners as Amicus? The County was not alone in supporting the Water Management District; organizations that agree on little else, e.a., organized labor (AFL/CIO) and business (FI. Chamber of Commerce), joined in support of the District and the challenged tax. The Barley Petition did not draw the support of any taxpayer or environmental advocacy group, although the Petition purports to advocate for taxpayers and the environment. Why was the BOCC not told that two of the Petitioners were Monroe County residents? That question presumes that your decision to intervene to protect the County's interests would be based on whether Petitioners were local, rather than "outsiders". Such an assumption is insulting to the members of this Board. It harks back to the days of Bubba politics, when who you were mattered more than the merits of your position. Moreover, it is illegal to apply one standard to locals, and another to everyone else. In an appeal, the courts look only to the legal issue presented. That issue--- not the persons raising it--- is the only factor worthy of your consideration. BACKGROUND A. The Parties The case began on December 3,1997, with a complaint filed in the Ninth Judicial Circuit in Orlando against the South Florida Water Management District ("SFWMD"). The four named Plaintiffs (now Petitioners in the Florida Supreme Court) alleged that they separately own property in Orange, Martin, Broward, and Monroe Counties. They sued individually and on behalf of a putative class of all"ad valorem taxpayers from Orlando to Key West who did not pollute the Everglades Protection Area f'EPA") or the Everglades Agricultural Area ("EAA"), but are nevertheless taxed by [SFWMD] for the major portion of the EAA's pollution abatement costs under 9 373.4592(4)(0) of the Everglades Forever Act ("EFA") and under the SFWMD's general ad valorem taxing authority, in direct contradiction to Article II, 9 7(b) of the Florida Constitution..." (R. 185-86, 188-91) The only Defendant, SFWMD, is the state agency charged under the EFA with implementing the Everglades Construction Project ("ECP"). 9 373.4592(4)(0), Fla. Stat. (2000). To finance a portion of the ECP costs, SFWMD is authorized to levy ad valorem taxes of up to 0.1 mil on real property within the Okeechobee basin. Id. It is this tax, along with the alleged use of SFWMD general revenue for ECP purposes that Petitioners challenge. Although Petitioners claim that EAA growers must be required to pay hundreds of millions of dollars in additional contributions to Everglades restoration, no EAA growers were joined as defendants or have intervened as parties. United States Sugar Corp. filed an amicus brief at the Fifth DCA. 8. The EFA and ECP The EFA, 9 373.4592, Fla. Stat., was enacted expressly to "pursue comprehensive and innovate solutions to issues of water quality, water quantity, hydroperiod, and invasion of exotic species which face the Everglades ecosystem." 9 373.4592(1 He), Fla. Stat. Part of the problem the Legislature sought to address was excessive levels of phosphorous in the EP A. However, the EFA also comprehensively addresses management of water supply and hydroperiod issues. The EFA was therefore designed to "expedite plans and programs for improving water quantity reaching the Everglades, correcting longstanding hydroperiod problems, increasing the total quantity of water flowing through the system, providing water supply for the Everglades National Park, urban and agricultural areas, and Florida Bay, and replacing water previously available from the Coastal Ridge in areas of Southern Dade County." 9 373.4592(1 }(f), Fla. Stat. The ECP, which is required under a settlement agreement among the federal government, SFWMD, Florida Department of Environmental Protection ("FDEP") and the agricultural industry, is the largest environmental restoration project of its type ever undertaken. With respect to phosphorous removal the EFA relies on a combination of agricultural best-management practices ("BMPs") and the implementation of Stormwater Treatment Areas ("STAs"), which are to be created as part of the ECP. 9 373.4592(1)(g), Fla. Stat. The statutory requirements for the ECP are set forth in 9 373.4592(4). These include creation of several STAs totaling about 40,000 acres, and other measures to improve both water quality and quantity in the Everglades. The SFWMD is to make the STAs available to the public for recreational purposes once complete. Thus, even the STAs have a purpose beyond water quality improvement. There are several funding sources for the ECP. The "sole direct [SFWMD] contribution from district ad valorem taxes" is the 0.1 mil levy authorized by 9 373.4592(4}(a). Funding is also provided by the Agricultural Privilege Tax imposed pursuant to 9 373.4592(6) on all agricultural property within the EAA, a similar tax imposed on the C-139 basin, and other revenue sources such as Alligator Alley tolls and FPL mitigation contributions. Current estimates project that $149 million of the capital costs for the non- federal portion 1 of the ECP will come from the two Agricultural Privilege Taxes and $279 mntion from the ad valorem tax that Petitioners challenge. The remainder of the $517 million projected cost for ECP non-federal capital projects is to come from Alligator Alley tolls, the FPL mitigation fund, Preservation 2000 grants, interest income and other miscellaneous income sources. SFWMD, ECP Revenue and Cost Summary (January 2001). Ongoing operation and maintenance ("O&M") will be funded primarily by the Agricultural Privilege Taxes, which are projected to provide $91 million of the $117 million 1994-2014 O&M budget. Another $9 million is projected to come from Alligator Alley tolls. Based on current estimates, only $9 million of the O&M costs are projected to come from SFWMD ad valorem taxation. Id. (There is currently a projected 20-year budget deficit of $7 million.) I The ECP also includes an additional $190 of federally-funded capital projects. In total, $816.5 million is expected to be spent on the ECP in its first 20 years on federal and SFWMD capital projects, O&M costs for the ST As, project engineering and land acquisition. Of this, $279 million will come from SFWMD ad. valorem taxes. The remaining funds will come from the Agricultural tax ($248.6 million), federal appropriations ($190.2 million) and general state appropriations and miscellaneous sources ($96.1 million). ENVIRONMENTAL CONSIDERATIONS This is a summary of the environmental policy considerations supporting my recommendation that the County file an Amicus Brief in the Barley case. But first, I would like to clarify that by filing the brief the County did not become a party to the case, and it did not intervene on one side or the other. Filing the Amicus brief simply allowed us to provide the Supreme Court with useful information on what we think the law means and how the decision the court is about to make will impact Monroe County. The parties to involved in the case had been focusing on Lake Okeechobee and the agricultural areas in the Northern Everglades. No one had considered that the project also impacts water quality and quantity in Florida Bay and that, once the Everglades restoration is complete, all the water entering the Everglades will eventually make its way into Florida Bay. It is important that the Supreme Court Justices understand the impacts of Everglades restoration on water quality in Florida Bay. The BOCC had previously urged the Court (in Monroe County's Amicus Brief filed in opposition to former Governor Claude Kirk's attack on the Everglades restoration project as a "nuisance") not to take any action that could jeopardize the Everglades Restoration project. I therefore asked for your approval to once again support the Everglades restoration project before the Florida Supreme Court, and you unanimously agreed. Impacts on Florida Bay On average, 1.7 billion gallons of water that once flowed through the Everglades are discharged through canals into the Atlantic or the Gulf. In its natural state, this water would have flowed through the Everglades and into Florida Bay. This is shown on the first of three maps, jointly created by the U.S. Army Corps of Engineers and the South Florida Water Management District, that you can find at www.everaladesolan.org, (a website that those agencies maintain to provide public information about the Everglades restoration.) The second map shows the present situation. Since the creation of the Central and Southern Florida by the Army Corps of engineers project in the late 1940s, the drainage system has choked off the natural flow of water into Florida Bay. It drains water from Lake Okeechobee, preventing water that would have flowed into the Everglades from ever entering the system. And, it drains off even more water through canals in the northern and middle Everglades, preventing this water from ever reaching the southern Everglades and Florida Bay. The third map is what the system will look like when the restoration is complete. As you will see from that map, a large portion of the original water flow will be restored to the Southern Everglades and Florida Bay. According to a joint Army Corps/Water Management District publication about the water quantity impacts to Florida Bay: "Water once freely flowed from the southern rim of Lake Okeechobee through the Everglades to Florida Bay and the Gulf of Mexico. Today, the free flowing Everglades have been severed by a system of canals and levees. Once implemented, the Comprehensive Plan will return much of the remaining Everglades to a free flowing system." The agencies then conclude that restoring the Everglades " will . . . improve fresh water deliveries to Florida and Biscayne bays. Appropriate fresh water regimes will result in substantial improvements in aquatic and semi-aquatic habitats, including, mangroves, coastal marshes, seagrass beds and coral reefs. Interacting together to produce food, shelter, and breeding and nursery grounds, these coastal habitat areas will support more balanced, productive fish, shellfish, and wildlife communities." The Army Corps and South Florida Water Management District have also determined that without the Everglades program, South Florida "will soon experience more frequent water shortages, flooding, and continued degradation of the Everglades, coastal estuaries, and other natural resources." The program is designed to relieve this pressure by restoring the natural timing of water flows, stopping the wasteful discharge of fresh water through drainage canals and creating water storage and treatment areas. In addition, the Everglades Program will also restore the hydroperiod, or the timing of water flows, into Florida Bay, so that it more closely mimics the natural state. This will also improve habitats in the bay as the species of plant and animal life area adapted to the natural hydroperiod. Water Quality The water quality portion of the project will make sure that this increased water flow meets stringent standards. At present, the water flowing into Florida Bay is degraded by pollution from areas as far north as Orlando. This water flows though Lake Okeechobee -- which itself is highly degraded -- and into the Everglades through estuaries and canals. The Everglades program will treat this water before it enters the system through huge treatment areas, called stormwater treatment areas or ST As, that are being built in the Northern Everglades. According to the Army Corps: "Excess phosphorus, mercury, and other contaminants harm the region's surface water and groundwater. The water quality of . . . Florida Bay and the Keys shows similar signs of significant degradation. The Comprehensive Plan will help improve the quality of water discharged to natural areas by first directing it to surface storage reservoirs and wetlands-based stormwater treatment areas." Ecosystem Impacts There are 68 endangered and threatened species that depend on water flows from the Everglades to survive, including the West Indian Manatee and several species of sea turtles. Additionally, freshwater flowing out of the Everglades mixes with salt water to form the most productive estuarine habitat in the world. These estuaries provide food and habitat for at least 70% of the commercially and recreationally harvested fish and shellfish in South Florida including crab, lobster and shrimp. Restoring the natural flow of water means significantly increasing the productiveness of our fisheries, contributing to improved fishing and diving in Florida Bay. As part of the Comprehensive Everglades Restudy, state and federal agencies performed a study of impacted ecosystems. (The restudy began in 1992 and is designed to find solutions to any unintended adverse impacts of the Central and Southern Florida Project.) Many of these areas had seen massive diminishment in native plant, fish and wildlife populations over the past few decades. The Restudy looked at whether these areas could recover once the comprehensive Everglades program was put in place. One of the areas studied was Florida Bay. With respect to Florida Bay, the Restudy found that recovery was highly unlikely without the comprehensive restoration of the Everglades. However, with this restoration completed on the present schedule, the prognosis is much better and there is a high likelihood of recovery. These results are shown on the fourth and fifth maps provided on the evergladesplan Website. On each map, the potential for ecosystem recovery is shown. Green indicates areas where the recovery is likely. Yellow indicates areas where meeting recovery targets is uncertain or may be marginally successful. Red indicates areas where the targets are not met, and scientists believe that recovery is unlikely. As you will see by examining those maps, the conclusion of the Corps and the District is that meeting recovery targets in Florida Bay is unlikely to happen without the comprehensive Everglades restoration, and very likely to happen with the program in place. Participation in the Barley case Because of these impacts to Florida Bay -- which no one had brought to the Court's attention - it seemed advisable to make this information available to the Court. I continue to believe that this was the right decision. Should Monroe County stand silent while a group of self- described "non polluters" attempts to derail a project designed to improve the natural flow of water into Florida Bay and to keep Florida ~ay from death by dehydration? Is such a result justified by their desire to avoid contributing one tenth of a mil of property taxes to replumbing the system? 4 million people visit the Keys ever year, primarily for fishing, boating and diving. A project that will improve those opportunities benefits everyone in the County, as well as those visitors on whom our economy depends. The main issue for us is water quantity, not pollution, but the Barley Petitioners pretend that all the project does is clean up pollution from agriculture. It in fact does much more, and the water quantity aspects, particularly the restoration of the natural water flow to Florida Bay, are of critical importance to Monroe County. The Barley Petitioners would risk the entire project because of a political battle they are having with agricultural interests in Central Florida. All the Amicus brief did was to point out that there are innocent victims who will be caught in the crossfire, if the suit prevents or delays the restoration project from going forward. There is no reason that we should not have made our issues known to the Supreme Court. In the end the court will makes its decision based on its interpretation of the Constitution. However, it should at the very least be aware that there is a real-world impact beyond the Northern Everglades to be considered. L\