Voices of the Tribe: Exploring the relationship between the Miccosukee Tribe of Florida and the Everglades Restoration Effort

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Voices of the Tribe: Exploring the relationship between the Miccosukee Tribe of Florida and the Everglades Restoration Effort.
The Miccosukee Tribe of South Florida is a federally recognized Native American tribe with a vested interest in preserving lands it owns within and on the border of Everglades National Park. The Everglades were established in 1947 after extensive drainage and water flow manipulation ravaged the wetland ecosystem. The park was the first large tract of wilderness in the United States to be protected for its ecology rather than its scenic value. Unfortunately, the ardent environmentalism that sparked the park’s inception and subsequent establishment has gradually faded since then, often becoming confused and bogged down in politics. The most recent plan to restore Everglades ecology was approved in 2000 as part of the Water Resources Development Act. The plan, the Comprehensive Everglades Restoration plan (CERP), was hailed by environmentalists as a beacon of hope in an otherwise dismal ecological tale. But its tremendous potential has translated into very little restoration activity. Indeed, in the year 2008 the National Science Academy gave the plan and its drivers a scathing review, stating that “it [was] too early to evaluate the response of the ecosystem to the Comprehensive Everglades Restoration Projects because none [had] been completed.”

For a restoration effort otherwise lost and unfocused, it is important that voices rise against its many downfalls to guide it to fruition. Perhaps the most consistent voice that has risen against both water management and the restoration effort in South Florida is that of the Miccosukee Tribe. The tribe has engaged the state and environmental agencies in much litigation concerning water quality, water flow and threats to endangered species in the Everglades area.

The aim of this paper is to explore the relationship between the Miccosukee Tribe of Indians of Florida and the Everglades restoration effort. Specifically, I will investigate whether the interests of the tribe align with those of the restoration effort and whether as Miccosukee defense attorney Dexter Lehtinen once said, “What happens to the Indians is what happens to the rest of the Everglades.” (Spinner, 2009) I will do this by first explaining the ecology of the area and consequently the goals of the restoration effort. I will then explore three contentious cases the tribe is currently raising against the official proponents of restoration and water control (these include the Department of Environmental Protection, the South Florida Water Management District, the Environmental Protection Agency and the Florida Wildlife Services). The first case concerns ongoing litigation surrounding water quality that the Miccosukee tribe is involved in. The second case concerns an endangered species, the Cape Sable Seaside Sparrow, and the effects of protecting it on the greater Everglades Area and the last case concerns a new project, the Tamiami Trail Bridge Project, which entails removing long stretches of a road (the Tamiami trail) and elevating them to restore historical water flow to Shark River Slough area.
I. Historical Ecology

The Everglades was once a thriving ecosystem, host to a wide array of species typical to both temperate and tropical climates. The conditions for such faunal heterogeneity arose from three characteristics of the Everglades system: a subtropical climate, a limestone foundation and extreme oligotrophy. (McCally, 1999)

The Everglades is technically located in the Desert Belt but because it is almost entirely surrounded by water, it boasts a two tone climate with a very wet season from June to October and a very dry season from November to May. South Florida’s abundant water supply and abundant heat worked in tandem to attract and historically support a vast array of wildlife. This includes temperate species from the north like hawks, raccoons, oaks, bobcats and white tailed deer as well as species from the south like roseate spoonbills, loggerhead turtles, tree snails and coco plums. (Grunwald, 2006)

Geology, in addition to climate, helped shape the Everglades’ rich ecology. The limestone bedrock of the area is incredibly level, causing water to move very slowly down the Florida Peninsula and incredibly porous, once allowing water to accumulate during hydroperiods1 for later use. After heavy rains, water would recharge aquifers within the rock and help maintain a high water table, making the everglades a continuously wet system even during the dry season.

It may seem counterintuitive that a lack of nutrients could foster much habitat heterogeneity but it was exactly its oligotrophic nature coupled with both its climate and geology that created an Everglades once teeming with life. To be specific, the Everglades were lacking in phosphorus. As a result, the species that did well did so because they were excellent scavengers of the nutrient and out-competed other marsh plants. Sawgrass, for example, demands very low phosphorus and was therefore the main vegetative form of the Everglades, providing cover and nesting sites for many animals. (Grunwald, 2006) This apparent dearth of vegetative opportunity also paved the way for a varied landscape, ultimately resulting in varied habitats consisting of extremely open sloughs adjacent to densely packed and slightly elevated sawgrass ridges.

Despite the importance of these three characteristics in determining the structure of the Everglades, however, they are just precursors to a still greater determinant of the Everglades’ distinct ecology: water flow.

Historical Water Flow

Water flow in the historical Everglades started with the Kissimmee Chain of Lakes. Located in South Central Florida, these lakes fed into the Kissimmee River, which then flowed into Lake Okeechobee- the main water source for the Everglades. Lake Okeechobee itself had no traditional outlet. Consequently, when high water events like summer storms occurred, the Lake would spill over its southern rim, into the Northern parts of the Everglades (Fig. 1). (SOFIA, 2003)

Figure 1: (Left) General locations of the major landscape types in the Everglades prior to human intervention. Adapted from South Florida Information Access Report on The Role of Flow in the Everglades Ridge and Slough Landscape. (Right) Image of the pre-development flow of water from Lake Okeechobee to the Florida Bay. Adapted from U.S. Geological Survey.

The flow of water that proceeded from these headwaters was the driving force behind pre-drainage Everglades hydrology. Water from Lake Okeechobee flowed toward coastal South Florida down a 30 mile wide expanse of limestone peninsula. There was no central drainage area, and in fact, no peripheral drainage area either. The flow was broadly distributed and remarkably uniform, resulting from the flat limestone bedrock previously mentioned. Much of the water was discharged south and west through the Shark River Slough to the Gulf of Mexico. (Grunwald, 2006)

The Everglades is thought to have formed over the last 5,000 years as rising sea levels and precipitation fostered water retention in a shallow basin. The portion of the basin south of Lake Okeechobee filled with peat. It did so evenly in the east west direction but because of the concavity of the basin, more peat accumulated in the center-where it was deeper- and less accumulated along the ridges. This resulted in a level east to west water flow surface and a very gradually downward sloping north to south flow surface. Currently, the north to south elevation gradient is below 3 inches per mile. (SOFIA, 2003) The habitat types that formed due to these conditions include the vast sawgrass plains south of Lake Okeechobee and the ridge and slough habitats south and east of those plains.

The ridge and slough landscape

One of the most prominent characteristics of the historical Everglades was its ridge and slough landscape. Ridges developed in areas of higher peat accumulation, elevating them above the water level whereas sloughs, adjacent, relatively open areas had peat levels two to three feet lower, and were consequently too water filled to host sawgrass. (USGS Biennial Report, 2002) Ridges and sloughs were regularly spaced, parallel to one another and parallel to water flow. Tree islands-clusters of trees, shrubs and ferns interspersed throughout sawgrass marshes- also formed parallel to water flow. They hosted two to three times the plant and animal diversity of the surrounding wetlands, mainly because of their relatively high elevation. During the wet season, tree islands and ridges were the only landforms in the marsh that remained dry enough to serve as refuges and nesting sites for animals. (USGS report, 2004) Historically, the ridge and slough landscape encompassed what are now Water Conservation Areas 2A, 2B, 3A, 3B and the Shark River Slough. Much of that landscape is currently degraded but scattered tree islands remain throughout the areas. The Miccosukee Tribe leases lands in Water Conservation Area 3A. (Figure 2)

Figure 2: (Left) Map of Everglades lands and important surrounding water bodies. The red rectangular portion highlights Miccosukee lands; the purple highlights Seminole lands. Adapted from: South Florida Water Management’s 2009 South Florida Environmental Report. (Right) Comparison of distribution of plant communities in Water Conservation Area 2 before and after construction of the C&SF Project. Adapted from: USGS Tree Islands of the Florida Everglades—Long-Term Stability and Response to Hydrologic Change, 2004.
Overall, the ecology and functionality of the pre-drainage Everglades was driven by a climate that appealed to a wide range of species, a relatively uneventful geologic history resulting in a practically flat wetlands and a unique hydrological regime. These conditions worked together to create the abundant life the restoration effort aims to resuscitate.

II. The Drainage effort: Why the Everglades Need Fixing

Plans to drain the Everglades began as far back as the 1840s when Buckingham Smith of St. Augustine was asked to investigate the area’s potential and report his findings. He concluded that the Everglades could be tamed by deepening streams that flowed to the coast and by creating a complex canalling system. Despite this initial fervor, however, not much happened in the way of water modification from 1848- the date of Buckingham’s report- to 1881. Railroads that had been destroyed during the civil war demanded more attention than conquering the Everglades and the Internal Improvement Fund awarded during reconstruction became too entangled in politics to accomplish any actual reconstruction. The fund plunged into several million dollars of debt and a receiver was appointed to assume control of said debt. The main objective for the state and the fund’s trustees became to restore the fund through land sales. It was not until 1881, however, that a substantial buyer was found. Hamilton Disston, an industrialist and real estate developer who had recently inherited his father’s fortune, bought a huge tract of land for development. Thus began the first set of extensive drainage projects and wetlands manipulations in the Everglades. In 1881, Disston signed the first major contract to drain overflowed lands in select Florida townships. He began by making the Caloosahatchee River an outlet to the Gulf of Mexico. Many of Disston’s subsequent projects led to over-drainage and his efforts did not necessarily meet the grand expectations hanging over his work, but his was the first large scale project to be completed in the central and southern Florida area and a large part of it still functions today. (Everglades Digital Library, FIU)

In the early 1900s, drainage efforts became serious. Between 1906 and 1913, 225.4 miles of drainage canals were dug. These included: the Miami, North New River and South New River Canals. From 1913 to 1927, 440 miles of canals, 47 miles of levees and 16 locks and dams had been created. They were these initial drainage efforts in the early 20th century that paved the way for agriculture to take hold and for waves of farmers to settle in the area. By 1920, sugar cane, tomatoes, beans, peas, peppers and potatoes were grown commercially.

In 1947, the south Florida area suffered two back to back hurricanes and an estimated $59,000,000 in flood damage, according to the Army Corps of Engineers. The Corps stepped in and began conducting public hearings throughout the area to determine how to remedy the water control situation. On December 19, 1947 the Corps presented its report and stated that “the problems of flood protection, drainage and water control [were] considered to be physically inter-related, and that the St. Johns, Kissimmee, Lake Okeechobee, Caloosahatchee and Everglades drainage areas all form[ed] a single economic unit” whose dire state required the creation of a comprehensive repair program. The program that was created was called the Central and South Florida Project (C& SF) and was set to begin in 1950. The project authorized the building of 30 pumping stations, 212 control and diversion structures, 990 miles of levees, 978 miles of canals, 25 navigation locks and 56 railroad relocations in the form of bridges. (evergladesplan.org/about/restudy_csf_devel.aspx)

In 1962, the same year that the Miccosukee tribe became federally recognized, the Army Corps of Engineers completed its Water Management Plan, a component of the C& SF. This plan included the construction of three water conservation areas (WCAs) to be operated and controlled by the Florida Freshwater Game and Fish Commission and the Fish and Wildlife Service (FWS). (Fig. 3) The WCAs (WCA 1, 2 and 3) were designed to provide flood protection and water supply through a series of canals, levees, pumps and control structures. They were built on about 900,000 acres of the central Everglades, providing flood protection in the wet season by storing water and discharging excess water into the ocean. In the dry season, they supplied water for irrigation and municipal uses. The Everglade National Park was established on 1.5 million acres of marshlands south of the WCAs. Today, the water management areas and the Miccosukee lands within them are located directly under the Everglades Agricultural Area (EAA), a 470,000 acre area developed by the C &SF mainly for sugar production. (SOFIA, 1996)

Figure 3: Most of the natural and historical Everglades are located in WCA 2 and 3. Adapted from the U.S. Army Corps of Engineers’ STA & Reservoir Performance Measures for the Everglades Restudy, 1998.

When EAA farmers began using chemical fertilizers to boost their productivity, WCA 2 and 3 felt the backlash. The historically nutrient poor Everglades became flooded with phosphorus from agricultural runoff and intentional pumping into these areas. As a result, the sawgrass so characteristic of the area was in many places out-competed by phosphorus loving cattails. The cattails impaired the ability of the Miccosukee tribe to navigate their own lands, as well as dramatically altered the ecology of the Everglades.

Water pollution and flow diversion remain the primary concerns of water management in South Florida today. I have aimed to provide with the preceding statements an abridged history of water manipulation in the historical Everglades. The story is much longer and much more complicated but the synopsis provided should give the reader an idea of the extensive damage done to the Everglades system. Further, the projects discussed will be of great relevance to the areas of contention between the Miccosukee Tribe and the restoration effort that are the focus of this paper.

The Restoration Effort

The ecology of the Everglades area has been drastically degraded due to the long history of water mismanagement detailed above. Tree islands have been drowned, open sloughs have been dominated by invasive cattails due to increased phosphorus loads and thousands of miles of habitat have been destroyed, rendering over 64 species in the sawgrass marshes endangered. The restoration effort aims to restore all that has been degraded by restoring historical water flow to the area. This involves removing long stretches of the canals, dikes and levees so enthusiastically installed in the 1900s. But undoing work once completed in an attempt to conquer nature has its own consequences when an entire state has developed around faulty water management structures. The restoration effort that has developed parallels in character the blind enthusiasm of the drainage effort; it is concerned only with ecology and not the 100,000 South Florida homes surrounding the greater Everglades area. The Miccosukee tribe has repeatedly called many components of the effort to question, expressing concerns for their own rights within the land.

The Miccosukee Tribe

The relation of the Miccosukee Tribe to the severe manipulation being imposed on the Everglades system has thus far been very cursorily mentioned. I now aim to explicitly put the tribe into the context of Everglades activity and restoration and to introduce the topic of their stake in Everglades lands.

The Miccosukee Tribe was once part of the Seminole Tribe of Florida. Both tribes originated form the Creek Indians but faced an ideological split in the mid 1900s. The Seminole Indians were willing to take reparations for the injustices they suffered in the form of money while members of what would eventually become the Miccosukee tribe were only willing to accept land. Further, while the Seminole Indians have been very open and even exhibitionist about the inner workings of their tribe, the Miccosukee Indians have been far more secretive. The lasting conflict between the tribes manifested itself in the Seminole Indians’ refusal to recognize the Miccosukee Tribe as an independent entity for most of the 20th century.

The Miccosukee Indians officially received federal recognition only in 1962 after Buffalo Tiger, Miccosukee leader of the time, made a diplomatic trip to Cuba. To prevent further relations between the tribe and Cuba, the Federal government conceded and gave the Miccosukee people lands on what are now the Tamiami Trail, Krome Avenue and Alligator Alley. The tribe had already been self governing by this time under a tribal constitution approved by the secretary of the interior after the Indian Reorganization Act of 1934.

Today, the tribe’s members work and reside in the Miccosukee Reserved Area (MRA) which borders Everglades National Park and includes perpetually leased lands in WCA 3A as well as on federal reservation lands within the Everglades. The Everglades are an important part of Miccosukee culture, subsistence, religion, historical identity and way of life. (Miccosukee comments on RGRR/SEIS, 2005) Specifically, the use of tree islands is important to traditional ceremonies like the Green Corn Dance- serving both as land on which to grow corn and land on which to conduct the ceremony. It is in the interest of the tribe that these tree islands not be flooded and that the waters they have traditionally used not be polluted. The tribe has traditional and statutory rights to use and occupy these lands. The lease agreement between the tribe and the federal government states that the vast sawgrass expanse of WCA 3A will be maintained in its natural state in perpetuity for the use and enjoyment of the tribe. Unfortunately for the Miccosukee Tribe of Indians of Florida, this has not been the case. The lands the Miccosukee occupy and use in ENP and the WCA 3A area have been highly degraded due to more than a century of overly ambitious and uneducated views on water management. The following cases are intended to suggest the nature of the relationship between the Miccosukee Tribe of Indians of Florida and the Everglades restoration effort.
III. Case 1: Pollution

Because the Everglades system is oligotrophic, a healthy Everglades is one that is phosphorus poor, with a disproportionately low level of phosphorus in relation to other nutrients like potassium and nitrogen. Glaser et. al, 2008 concede that long term exposure to too much phosphorus allows flora unadapted to low phosphorus levels to out-compete the native flora of the Everglades system. High phosphorus levels result in excess peat accumulating in the peat under the water; this alters the activity of microorganisms and disturbs natural species composition of algal mats (usually resulting in the proliferation of said mats) and other plant communities in the marsh. Increased algal mats induce oxygen depletion resulting in cattail invasion or other nutrient tolerant ecosystems taking over the native sawgrass and wet prairie communities. This chain of events destroys the ecosystem’s capacity for supplying forage for native wildlife as well as the Miccosukee tribe’s ability to navigate its waters. These were the terms on which the water quality disputes in Florida rested. The resultant arduous and ongoing litigation has been both beneficial and harmful to the Everglades.

In 1988 the federal government sued the South Florida Water Management District (previously the Central and South Florida Project) and the Florida Department of Environmental Regulation (DEP) because it believed that Florida’s water quality standards were not being enforced in the Everglades area (defined as the park, the refuge area in the Loxahatchee range and water conservation areas 2 and 3). As stated before, water conservation area 3 encompasses Miccosukee lands, lands which are located immediately south of points of discharge into the Everglades Protection area. The complaint claimed that agricultural runoff was entering the Park through structures operated by the district.

In 1991, a comprehensive settlement regarding the ‘88 water quality dispute was reached. The agreement officially acknowledged that water teeming with excess phosphorus was flowing from the EAA and entering the refuge and park, stating that the polluted water “threatened ecological integrity and ultimately the survival of the park and refuge.” The settlement agreement described the upper limit for phosphorus being reached in the Everglades when an “imbalance in natural populations of aquatic flora and fauna” was observed. Surpassing such a threshold would result in the replacement or loss of native periphyton algal species and the replacement of native sawgrass prairies with dense cattails. It would also result in a violation of Florida’s water quality standards. Therefore, the agreement mandated that this narrative criterion of maintaining a balanced, natural population of aquatic flora and fauna be met by July 1, 2002. The parties agreed to take action if standards weren’t met and to initiate a regulatory program to reduce the influx of phosphorus to ENP. The program entailed reducing phosphorus flow from the EAA by diverting runoff into storm water treatment areas (STAs)2 and by instituting special farming practices called Best Management Practices (BMPs)3.For its part, the DEP promised to enforce stringent inflow discharge limits if by July 1, 2002 the refuge was not in compliance with the phosphorus criteria.

Soon after the settlement agreement was reached, however, DEP and SFWMD would modify the document to ensure extended deadlines for meeting the narrative phosphorus criterion mandated within it. On January 24, 1992, the Miccosukee Tribe, after voicing its concerns over water quality, was given the power of “limited intervention” by Senior District Judge William M. Hoeveler. This limited intervention allowed the tribe to invoke the court’s jurisdiction to enforce the 1991 settlement agreement. The acknowledgment of the Miccosukee tribe by the court as a legitimate intervenor in South Florida water quality legally transformed the 1991 settlement agreement into a consent decree.

In 1994 the Everglades Forever Act was implemented. The document was created in an attempt to urge the South Florida District of Water Management to more expeditiously fulfill the aims enumerated in the 1992 consent decree. Its primary objective was to reduce phosphorus levels entering the Everglades Protected Area (defined as Water Conservation Areas 1, 2A, 2B, 3A, 3B, the Loxahatchee National Wildlife refuge and the Everglades National Park). It more precisely detailed construction plans for the six water treatments mentioned in the 1992 consent decree and established a long term research and monitoring program to develop a numeric concentration level of phosphorus that would not cause imbalances in the Everglades Protection Area. It stated that the default phosphorus criterion would be 10 ppb, and that if the Department of Environmental Protection did not adopt a phosphorus rule by December 31, 2006, this default criterion would be enforced.

Despite the EFA’s superficial appeal to environmentalists, concern arose that it changed Florida’s water quality standards in very subtle and perhaps sinister ways. It allegedly did so mainly by postponing compliance with numeric phosphorus levels until the year 2006 (12 years!). Specifically, the 1994 EFA allowed dischargers within the EAA and C-139 basin, who pay fees under the Everglades program and meet the Everglades BMP program, to avoid implementing additional water quality improvement measures before December 31, 2006. This alleged violation of water quality standards was brought to light by Chief Judge Davis in the Davis Opinion and was supported by the Miccosukee Tribe. In 1999, the Environmental Protection Agency reviewed the EFA and concluded that “amending the narrative criterion by incorporating a reasonable compliance schedule” did not violate water quality standards. The court subsequently accepted the amended deadlines in the EFA but did so anticipating that the state would continue to implement all the necessary measures to ensure that the Everglades meet water quality standards by the new December 31, 2006 date. The deadline would later pass and compliance would not be met.

By 2003, the default provision for the 10 ppb phosphorus rule was supposed to have gone into effect; it didn’t. Further, the deadline for farmers to be in accordance with water quality regulations was quickly approaching. The long term plan that was originally composed as part of the EFA-the one that extended the phosphorus deadline to 2006- did not seem feasible because virtually no effort had been made on the part of the dischargers to reduce pollution. As a result, the South Florida Water Management District amended the 1994 EFA to adopt a longer long term plan. The new long term plan implemented on November 5, 2003 further extended the deadline for achieving water quality standards to the year 2016. It suspended the enforcement of the narrative and default phosphorus criterion and created a revised water quality criterion based on Technology Based Effluent Limitations (TBELs)4.

According to the 1994 EFA, discharge is governed by permits under Florida law. The long term plan incorporated a new compliance schedule that changed standards for dischargers who met statutory requirements as opposed to authorizing compliance schedules in individual permits on a case by case basis. In other words, there were no longer any preliminary standards to be met in order to gain an extension; cases did not need to be judged on an individual basis but could assume extended deadlines if they met relaxed statutory requirements. The relaxed requirements were couched in changed terms and forgiving vocabulary. The amendment declared that “the Long-Term Plan is to be implemented with the planning goal and objective of achieving the phosphorus criterion…” clearly suggesting that the requirement was not to achieve the phosphorus criterion but to seek to do so. In effect, the complete Long-Term Plan allowed discharge into the EPA from all basins of any total phosphorus concentration until 2016. It did not define a required inflow concentration and it did not address what would happen if goals were not met by 2016 due to lack of funds or any other considerations.

In July of 2008, the EPA was taken to court by the Miccosukee Tribe and the Friends of the Everglades were legally brought into question. The case was called to court by the Miccosukee Tribe of Indians of Florida and the Friends of the Everglades5. Among the key results of the hearing were: the establishment of a 10 ppb criteria for phosphorus in the Everglades; the finding that the EFA is contrary to the water quality standards in Florida, that the deadline for the discharge of clean water into the Everglades was not met and there is no certainty it will ever be met, that the water quality standard for phosphorus was illegally changed and that the discharge of dirty water into impacted areas is against the law. The result has been a more stringently enforced water quality standard. However, loopholes and sneaky concessions for dischargers remain, characterizing a dispute that may perhaps never end.

Water Pollution Section Conclusion

The water quality dispute in Florida has been raging since 1988. The Miccosukee Tribe has been a substantial agent in the dispute, having brought the consent agreement amendments as well as the EFA and its amendments into question. The tribe has continued to invoke the court’s judgment when it has felt that the SFWMD has not upheld South Florida’s water quality standards.

Some critics of the restoration effort argue that this never-ending litigation is more of a hindrance than anything else, stalling the momentum of other projects. The National Research Council in its review of the Comprehensive Everglades Restoration Plan identifies the ongoing battle over water quality as a large part of the reason that eight years after the plan had been initiated not a single CERP project had been completed. But CERP was intended as a comprehensive plan that included both the concerns of water management for the large South Florida population and restoration of the Everglades. Both of these goals require uncontaminated water. Restoration of the Everglades, in particular, is not just about restoring hydrological flows but also about restoring the faunal and floral composition of the area. This requires that oligotrophic conditions be restored. If any party of the water quality disputes is culpable, it is the district, refusing to comply with environmentally safe phosphorus standards and constantly extending deadlines in an attempt to evade meeting the established criteria. When it comes to water quality, I would say that the goals of the Miccosukee Tribe are most certainly aligned with the greater restoration project.

IV. Case II: The Cape Sable Seaside Sparrow

The Cape Sable Seaside Sparrow (CSSS) is a subspecies of the seaside sparrow that resides mainly in the Everglades National Park and the Big Cypress Reserve. (SOFIA, ATLSS 2009) Its breeding season can begin as early as late February and can persist into early August. Nesting is believed to be very dependent on dry conditions. The sparrow generally inhabits brushless, subtropical marshes that are dry most of the year. It is a very charming species- small, with colorful plumage. Unfortunately, the CSSS population has been decreasing since the early 1990s. (evergladesplan.org)

As a result of the sparrow’s dwindling numbers, the U.S. Fish and Wildlife Services (FWS) implemented a strict hydrological regime in 1997 to preserve or, more appropriately, to simulate what they believed was the critical habitat for the endangered species. This included drying out a large area of marl prairies in the western Everglades inhabited by a CSSS subpopulation referred to as subpopulation A, located west of Shark River Slough (Figure 4) .

Unnaturally dry conditions were created by closing two large gates called the S-12 gates that regulated flow from WCA 3A into the Everglades. Closing these gates did produce drier conditions in the Subpopulation A area but it also caused flooding in WCA 3A lands by preventing them from shedding their water southward.

Figure 4: (Left) Cape Sable Seaside Sparrow. Photo by David LaPuma. (Right) The six sub-populations of the CSSS. Adapted from: National Park Service Inventory and Monitoring Program

In 2006, the Federal Wildlife Service attempted to pass a rule for the critical habitat designation for the Cape Sable Seaside Sparrow. This rule would have mandated the unnatural hydrological water management practices that the FWS had been implementing for nine years. The Miccosukee Tribe intervened and urged the court not to approve the rule on the grounds that its components were not in accordance with the broader aim of the restoration effort, that it had not proven effective in increasing sparrow numbers, that accepting the rule would put the fate of 64 other endangered species in jeopardy and that implementing the rule would constitute a breach of promise of the Federal government to the Miccosukee Tribe. This was the earlier mentioned promise that the lands in WCA 3A would be preserved in their natural state in perpetuity.

The Tribe argued that the FWS was not taking into account the best available science. It contends that the rule was deficient because it failed to consider and accurately asses the impacts it will have on the Everglades, its endangered species and on various Everglades restoration projects, including CERP. Further, the FWS failed to consider the economic costs of these impacts. The Tribe’s rationale for claiming that the rule was in conflict with Everglades restoration was based on the findings discussed at the Avian Ecology Forum conducted at Florida International University from August 13 to August 15, 2007. At said forum, Paul Souza, Regional Supervisor of the FWS, admitted that the hydrology the FWS demanded for the CSSS was in conflict with restoring natural water flows in the Everglades. All tenets of restoration plans include opening the S-12 gates to restore water flow and result in higher water levels in the subpopulation A area; these gates would be closed under the rule. Dan Crawford, a hydrologic engineer and modeler for the Army Corps of Engineers further confirmed the conflict between CERP and the proposed rule for the CSS, “Bottom line point is CERP project goals include the removal of obstacles to sheet flow and improving water quality, quantity, timing and distribution of flows throughout the system, mostly in the Everglades National Park. Regional modeling for the long-term CERP shows us additional potential impacts to subpopulation A above and beyond what we’re [already] showing as well as potentially subpopulations E and F that border Northeast Shark River Slough. Subpopulation A is currently very limited, and certain modeling is only going to make it wetter.”

The Miccosukee Tribe has called the FWS irresponsible for creating a rule that “legally requires unnaturally low water levels.” In an affidavit composed by Eugene Duncan Jr., the Tribe’s Water Resources Director, the Miccosukee Tribe’s views as to why the rule would not help the Sparrow are expressed as follows. First, the Avian Ecology Forum released data suggesting that the previously enforced water management techniques were damaging, not helping the sparrow: the 2007 population estimates for CSSS in Subpopulation A had dwindled to just four singing males. After nine years of management actions in the same vein as the proposed rule, no correlation had been found between creating unnaturally low water levels in the CSSS Subpopulation A habitat and a recovery of the population. According to Doug Donaldson, ecological modeler for ENP, “Everybody said keep it dry for 60 days in the sparrow breeding season and the sparrows will come back. We did that. They didn’t. This is not very good.” Second, Dr. William post presented at the forum studies which suggested that high water levels account for just 3% of sparrow nest loss, the other 97% being accounted for by predators. He also suggests that to remedy the failure of the current program, “the appropriate agencies should immediately utilize proven alternative strategies for the western area such as relocation, captive rearing, localized flood control and the use of predator baffles to protect nests.” But the federal agencies responsible for the CSSS’s recovery have not taken the proposed actions; they have instead imposed wide scale water management that has yet to be proven effective in increasing CSSS numbers. “Ironically,” says Dr. Post “the water management actions taken over the past nine years have only increased the probability of the subspecies’ extinction.”

The Miccosukee Tribe further pointed out the adverse effects that the unnatural water regime has had on WCA 3A and other areas of the park. The Tribe described how closing the S-12 gates and stopping water flow has destroyed the Tribal Everglades in WCA 3A, drowning tree islands and adversely affecting the snail kite, an endangered species whose population has declined by 50% since the regime was begun in 1997. In 2005, all nests failed and no Kite Snails fledged out of WCA 3A. Dr. Wiley Kitchens a University of Florida Cooperative Fish and Wildlife researcher made it clear that the continued prevention of natural water flow out of WCA 3A will most likely prove fatal to the Snail Kite.

The tribe continues to argue that unnatural water levels in WCA 3A have led to a shift in vegetation and consequently habitat quality throughout ENP and the water conservation areas. WCA 3A is a marsh with numerous tree islands that contribute greatly to the biodiversity of the Everglades. Over 68% of tree island acreage in WCA 3A has been destroyed due to high water.

The Tribe then describes how in addition to compromising the ecological integrity of the Everglades, the unnatural water levels maintained to preserve the CSSS compromise the Miccosukee Tribe’s ability to utilize their own lands. The tribe depends on the lands for numerous cultural, religious, recreational and commercial purposes. Subsistence and recreational activities include: hunting, fishing, frogging, commercial air-boating, subsistence agriculture (including the planting of corn on tree islands for religious purposes) and gathering native plant materials in the Everglades. High water levels in the WCA 3A area have prevented the Tribe from successfully planting corn and thus engaging in religious activities dependent on the crop. The Miccosukee Tribe is concerned that if its leased lands in WCA 3A are destroyed, so may be their culture, religion and way of life.

Cape Sable Seaside Sparrow Section Conclusion

If we consider this case in terms of my broader question as to whether or not the Miccosukee tribe’s goals are consistent with those of the restoration, our answer seems complicated. In this case, one component of the restoration effort- the fight to save the Cape Sable Seaside Sparrow- is at odds with the Miccosukee Tribe. But the greater effort- that of restoring historical flows to the Everglades- seems to agree completely with the wishes of the Tribe. Further, the Miccosukee Tribe’s presentation of the information that the FWS hydrological regime has been ineffective in saving the CSSS is a necessary step toward actual restoration. This information renders moot the philosophical debate as to whether it is worth completely forsaking 64 endangered species to save one. Instead, the tribe has clearly objected to a plan that, while created and endorsed by a federal environmental organization, is itself inconsistent with the greater restoration effort.

V. The Skyway Dispute

The Skyway dispute begins at the Shark River Slough, a swampy marshland that flows through the central portion of the Everglades in a southwest direction. Its full flow is blocked by a 275 mile long stretch of road called the Tamiami Trail. Completed in 1928, the road was built to 1) provide an easy way to get from Miami to Tampa and 2) make land south of the trail hospitable by having the trail double as a dam. As a result of blocked water flow, land south of the bridge has been drying out and sinking. Coupled with rising sea levels, these factors endanger wildlife by destroying habitats and they endanger humans by facilitating the flow of salt water into the Biscayne aquifer- a major source of South Florida drinking water.

So goes the argument for environmentalists and water managers who have endorsed the Skyway project, also called the Tamiami Trail Bridge Project. Skyway is a bridge-building project currently being begun in South Florida with the aim of restoring water flow that has been blocked by the Tamiami Trail for over 75 years. Environmentalists contend that the completion of the bridge will be one of the first visible accomplishments of the Everglades restoration effort, thus garnering further support from congress for the restoration effort. The project initially entailed elevating about 11 miles of the road above the Shark River Slough to restore historical flows to the area. Upon hearing this, the Miccosukee Tribe was immediately incensed and immediately took action, stalling the project for almost 5 years.

The Tribe called proponents of the project to court, alleging that the construction of the bridge would be expensive and unnecessary. They considered the bridge an excessive project with astronomically high standards for restored water flow. The amount of water being released by elevating the bridge surpassed any amount specified in previous legal documents and was thus not in accordance with those legally established doctrines. In other words, the tribe tried to base its case on the fact that the Army Corps of Engineers was utilizing a loophole to complete a project it was legally not allowed to complete. There are two documents of importance in this case: The Modified Water Deliveries Project (MWD) and the Comprehensive Everglades Restoration Plan (CERP).

According to the South Florida Water Management District, the purpose of the Modified Water Deliveries project is to restore natural hydrological conditions in ENP that have been altered by roads, levees and canals; such restoration would consequently improve Everglades connectivity for wildlife. Congress authorized the project in 1989 with a completion date of 1997. MWD has still not been completed.

The Comprehensive Everglades Restoration Plan was approved by congress in 2000. Its aims are to increase storage of wet season waters in order to augment the supplies during the dry season for both the natural system and urban agricultural users. The plan entails over 60 projects with an estimated timeline of 30 years until completion at a cost of $10.9 billion. The project was created as a way to remedy the damage done by diverting water flows from Lake Okeechobee directly to the ocean. In other words, the plan aimed to repair some of the extensive damage done by South Florida drainage efforts. The CERP rests on the assumption that the ecosystem has changed because it receives less water during the dry season and more during the rainy season than it did historically. As a result its narrative goal is to restore the quantity, quality, timing of freshwater flows and water distribution to the Everglades area by capturing and storing water that is currently discharged into the ocean for use during the dry season. As of today, no CERP projects have been completed. (CRS Report, 2005)

When congress authorized CERP in 2000, it specifically required completion of the MWD project before authorization of the CERP Decompartmentalization project. Decompartmentalization in the Everglades refers to the plan to remove sheetflow obstructions in order to reestablish the hydrological connection between WCA 3A, 3B, ENP and the Big Cypress National Preserve. The Tribe is arguing that the Tamiami Trail Bridge project is in direct violation of Congress’s wishes because it is clearly a CERP project under the guise of a MWD component. Aside from the Tribe’s legal reasons for protest, the Miccosukee Indians also had a vested interest in preventing this project from being authorized because at least two of their tribal camps- the Osceola and Tigertail- are at stake. But under the initial 11 mile bridge project- and under any project whose scope would come near that- the Miccosukee Tribe would not be the only group affected by flooding. The aftermath of such a huge change in water flow could seriously compromise Florida restoration efforts. Miccosukee Tribe Water Resources Director Gene Duncan said in an interview, “Water that flows under the bridge will flood the west side of Miami. CERP called for building seepage barriers first- the let her rip theory won’t work- you can’t flood people’s homes. [The Corps’] problems are far from solved- they haven’t addressed flood control or water supply. Congress approved CERP because all components were being addressed. CERP was a comprehensive plan that looked at water supply and flood control and the environment. The park was not happy. So they’ve been pushing for the skyway and the bridge and the Tamiami Trail- we’re not going to flood hundreds and thousands of homes. Politically, it will kill the face of restoration.”

In its comments on the Final Revised General Reevaluation Report/Second Supplemental Environmental Impact Statement (RGRR/SSEIS) for the Tamiami Trail Modifications, the Tribe raises concerns that construction of the bridge will result in increased flow of water pollutants into ENP, that culverts along the trail which are already blocked by vegetation will be further blocked by construction, that under high water conditions these blocked culverts could pose health and safety risks to those working and living within WCA 3A and that the Snail Kite could be adversely affected by the project. The Army Corps of Engineers has admitted that there would be an increase in water levels from the blocked culverts. Further, studies being conducted by University of Florida scientists show that vegetation in WCA 3A is being heavily degraded by the current culvert blockage; unfortunately, the Corps refuses to discuss the impacts that further blockage would cause the water conservation area.

The tribe is especially concerned, and this ties in with the legal dispute over project authorization, because the water levels being proposed by the Tamiami Trail Bridge project are much higher than those specified in MWD and even CERP, “MWD was never intended to produce CERP volumes of water let alone those that exceed CERP.” Instead of marching forward with a project they believe will deplete resources needed to complete other important projects, the Tribe suggests alternative measures for restoring enough water flow to improve ecological standing without flooding WCA 3A. Primarily, the Tribe proposes distributing flows across the Tamiami Trail by clearing out and utilizing the existing culvert system.

One of the biggest objections the tribe has had to the Tamiami Trail Bridge Project is its proponents’ exclusionary and narrow-minded attitude toward achieving the projects’ ends. The Corps acted in conflict with the Federal Advisory Committee Act, namely by not informing the public (read: the Miccosukee Tribe) of their creation of a team of non-federal entities and consultants to develop performance measures and give guidance regarding the project. The Tribe believes that the team made policy recommendations and that the Corps “improperly delegated their statutory authority to them.” The Tribe also believes that the advisory group did a poor job of analyzing all the reasonable alternatives and prepared a faulty Park analysis. Further, the group both deleted performance measures from prior agreements and created new ones. These new measures basically changed the objectives of the project itself to the greater water flow measures previously mentioned.

Despite the Tribe’s long fight against the project, it was finally authorized by congress in June 2009. The newest version of the plan has been scaled down to a phase I, one mile portion of the bridge being built. There has been talk about implementing further phases and augmenting the bridge in the future if funds allow. The tribe maintains its outrage at what it has deemed the Corps’ attempts to bypass federal law. It believes that the Corps cannot know whether or not the Tamiami Trail plan will help or hurt the Everglades because the appropriate environmental impact analyses have not been conducted. According to Dexter Lehtinen’s addendum to the 2008 Strategy for Restoration of the South Florida Ecosystem, “The Tribe believes that if the Corps is forced to do the analysis required by law, it will show that this hastily put together plan is a white elephant bridge to nowhere.” (Lehtinen, 2008)

Skyway Project Section Conclusion

In this case, it seems that the tribe’s interests are certainly not aligned with those of the restoration effort. The effort is focused on restoring hydrological flow to the Everglades; apparently they are focused on doing so regardless of the consequences for the Miccosukee Tribe and the 100,000 residents in the surrounding area. Multiple news reports released describing the Tamiami Trail Bridge Project display the extent to which the Miccosukee’s interests are considered important by the restoration effort; the role of the Miccosukee Tribe is always cursorily mentioned and its concerns shrugged off, “The tribe had argued that the bridge could result in flooding. But, now the project is set to go – and that’s a big win for the environment and business, said Kirk Fordham, CEO of the Everglades Foundation.” Despite the minimal attention ascribed to the tribe in the matter, however, the Miccosukee Indians do emerge from this case as a grounding entity- bringing to light the idea that blindly restoring the hydrological flow to the Everglades is not always practical. (Frogameni, 2009)

VI. Conclusion

The Everglades is a unique ecosystem that historically hosted a wide array of wildlife because of its subtropical climate and multitude of habitats. The System was jeopardized by extensive drainage completed in South Florida to facilitate agriculture and real estate development, which later resulted in extensive phosphorus pollution. As a result, over 64 Everglades species are endangered and many parts of the historical wetlands have begun to look like shallow lakes due to invasive species establishment. The restoration effort in South Florida is mainly concerned with restoring historical flows to the Everglades National Park and the Loxahatchee Refuge, whose combined areas result in a mere shadow of the historical Everglades. The Miccosukee Tribe occupies lands within the WCA 3A Everglades area and has a vested interest in protecting those lands and the integrity of their ecosystem.

I wanted to investigate whether the aims of the tribe coincided with those of the restoration effort. The answer I found is complicated. The tribe sometimes has interests aligned with the effort- their unforgiving fight for water quality is an example. Sometimes its interests make sense in terms of the greater restoration effort but are in conflict with one environmental agency- like in the case of the Cape Sable Seaside Sparrow. And sometimes the Miccosukee Tribe’s aims are in complete conflict with the restoration effort, but offer the lens of practicality to an otherwise overly ambitious and unrealistic project- like in the case of the Tamiami Trail Bridge. Overall, however, the tribe is a necessary entity in the fight for Everglades restoration.

Perhaps Dexter Lehtinen was not entirely correct. Perhaps what happens to the Miccosukee Indians is not exactly what happens to the Everglades, but considering the tribe’s interests may be the only way to respectfully and fairly restore the area. It may even be the only realistic way to do so.

“The Tribe owns about a third of the Everglades. The park is happy to sacrifice tribal lands as long as it’s good for the park. It’s terrible for the areas north of that. We’re not willing to sacrifice a third of the Everglades just so the park can be happy,” - Gene Duncan.

Works Cited

1) Spinner, Kate. “Everglades Bridge Can Move Forward- Everglades: Injunction is Lifted but Miccosukee Tribe will keep Fighting.” Herald Tribune. June 22, 2009. Available at: http://www.evergladesfoundation.org/article2.php?id=467

2) McCally, David. The Everglades: An Environmental History. Gainesville, Fl. University Press of Florida, 1999.

3) Grunwald, Michael. The Swamp: The Everglades, Florida, and the Politics of Paradise. New York. Simon and Schuster paperbacks, 2006.

4) South Florida Information Access: The Role of Flow in the Everglades Ridge and Slough Landscape. Science Coordination Team. South Florida Ecosystem Restoration Working Group. (Approved by the SCT: January 14, 2003)

5) (USGS Biennial Report, 2002) U.S. Geological Survey Greater Everglades Science Program: 2002 Biennial Report (Open-File Report 03-54). Available at: http://sofia.usgs.gov/publications/ofr/03-54/

6) U.S. Geological Survey Fact Sheet 2004-3095. September 2004 - Online Version 1.0. Tree Islands of the Florida Everglades— Long-Term Stability and Response to Hydrologic Change. Available at: http://pubs.usgs.gov/fs/2004/3095/fs2004-3095.html

7) Everglades Digital Library: http://everglades.fiu.edu/reclaim/timeline/index.htm

8) Gaiser, Evelyn E. et al. “Comment on ‘Estimating Ecological Thresholds for Phosphorus in the Everglades.’” Environmental Science Technology (2008), 42 (17), pp. 6770-6771.

9) Across Trophic Level System Simulation (ATLSS) - Cape Sable Seaside Sparrows: http://sofia.usgs.gov/projects/index.php?project_url=atlss/sparrows

10) Frogameni, Bill. “Construction set to begin on Tamiami Trail Bridge Project.” The South Florida Business Journal. December 4, 2009. Available at:


11) Sheikh, Pervaze A. CRS Report For congress. Everglades Restoration: Modified Water Deliveries Project. 2005. Available at: http://www.cnie.org/nle/crsreports/05aug/RS21331.pdf

12) South Florida Water Management District. South Florida Environmental Report: Executive summary 2009.

13) Windemuller, P., Anderson, D.L et. al. Modeling Flow in the Everglades Agricultural Area Irrigation/Drainage Canal Network. Journal of the American Water Resources Association. (Vol. 33, No.1) 1997.

14) Miccosukee Tribe of Indians of Florida v. United States of America. July 29, 2008. Case No. 04-21448-CIV-GOLD/McALILEY. United States District Court of the Southern District of Florida.

15) South Florida Water Management District: Quick facts on Modified Water Deliveries to Everglades National Park Project, Tamiami Trail Modifications. December 2008. Available at: https://my.sfwmd.gov/portal/page/portal/common/pdf/splash/spl_modwater.pdf

16) Lehtinen, Dexter W. October 2008. The Myth of Everglades Restoration: An Additional View of the Miccosukee Tribe of Indians of Florida. Supplement to Coordinating Success 2008: Strategy for Restoration of the South Florida Ecosystem.

17) Center for Biological Diversity v. Kenneth Salazar, Secretary. Affidavit of Truman Eugene Duncan Jr. November 23, 2009. Case No. 09-CV-01684-RMC. United States District Court for the District of Columbia.

18) Lehtinen, Dexter of Lehtinen, Vargas & Reidi. Letter to U.S. Fish and Wildlife Service re: Objections of the Miccosukee Tribe to the Proposed Tule for Critical Habitat Designation for the Cape Sable Seasode Sparrow; Fed. Reg. VOL 72. No. 159; and Fed. Reg. VOL. 71, No. 210. September 17, 2007.

19) Sheikh, Pervaze A. and Carter, Nicole T. CRS Report for Congress: South Florida Ecosystem Restoration and the comprehensive Everglades Restoration Plan. January 3, 2008.

20) Morgan, Curtis. “Tamiami Trail Bridge will be milestone for Everglades restoration.” The Miami Herald, December 03 2009. Available at: http://www.miamiherald.com/news/miami-dade/v-fullstory/story/1364934.html

21) Miccosukee Tribe of Indians of Florida v. U.S. Army Corps of Engineers. State of Florida Department of Environmental Protection. DEP Permit No. 0289191-001. Miccosukee Tribe of Indians of Florida’s Petition for Formal Administrative Hearing.
22) United States of America v. South Florida Water Management District. June 1, 2005. Case No. 88-1886-CIV-MORENO. United States District court for the Southern District of Florida, Miami Division.
23) Duncan, Eugene. The Miccosukee Tribe’s Comments on the Skyway Proposal for the Tamiami Trail. March 22, 2007. Available at http://www.miccosukeeresort.com/tribe_environment.htm#

1 hydro periods are defined as the period of time when a wetland is covered by water

2 STAs consist of thousands of acres of man-made marshes designed to filter phosphorus and other nutrients out of the EAA runoff before it enters ENP or the refuge.

3 BMPs are those that the district determines to be the most effective way of improving water quality improvements while maintaining agricultural productivity. These include storm water retention, sediment control and restrictions on the use of fertilizers and pesticides.

4 A TBEL is an effluent limitation for a pollutant that is based on the capability of treatment method to reduce the pollutant to a certain concentration. They are less restrictive than the narrative and numeric phosphorus criterion

5 Friends of the Everglades is an environmentalist group founded by Marjory Stoneman Douglass in 1969.

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