December 18, Beth Lewis Attorney

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1 Audubon Florida Clean Water Action Everglades Law Center National Parks Conservation Association Natural Resources Defense Council Sierra Club Tropical Audubon Society December 18, 2012 Beth Lewis Attorney Melissa Meeker Executive Director South Florida Water Management District Sent via e- mail Dear Ms. Lewis and Ms. Meeker, On behalf of the undersigned organizations, we write to provide comments on the proposed rule reserving water for the Biscayne Bay Coastal Wetlands Phase I (BBCW) project, part of the Comprehensive Everglades Restoration Plan (CERP). We appreciate the effort of the South Florida Water Management District (District) in moving ahead with this reservation and recognize that its development and approval is critical to allow the District to move forward with federal partners towards completion of the BBCW project and ensure that Biscayne Bay receives some much needed additional water flows. We have attached a strike- through version of the proposed rule as an appendix to this letter. As we ve previously mentioned, we look forward to continuing discussions to create rules for broader protections of Biscayne Bay as the next step to this process. Even with essentially all existing canals flows dedicated and managed for the benefit of the natural system, significant additional flows are still needed for restoration and protection of fish and wildlife in Biscayne Bay. The target amount of water identified in the PIR for restoration 518,759 acre- feet/year as a constant flow of 1,421 acre- feet/day, allocated among three groups of canals and tributaries is rarely achieved under the proposed reservation. Achievement of target flows ranges from a low of less than 5 percent of the time in the dry season from the C- 100 canal, to a high of just over 60 percent of the time during the wet season from the C- 102 and C- 103 canals. Moreover, the 518,759 acre- foot/year target may understate by a significant margin the amount of water needed to protect the Bay s fish and wildlife; it may also ignore variation between flows needed in wet and dry seasons. In its report, Estimates of Flows to Meet Salinity Targets for Western Biscayne National Park, the U.S. Department of Interior determined that

2 approximately 960,000 acre- feet/year of freshwater flows would be required to meet the salinity targets [for desired ecological conditions in the Park], with 37,000 acre- feet/month needed in the dry season, and 149,000 acre- feet per month needed in the wet season. 1 We emphasize that given the significant gap between the water being provided by the BBCW Phase I project and the range of flows widely acknowledged as needed for restoration, it is imperative for the health of the fish and wildlife of Biscayne Bay that the second phase of this project is realized in a timely manner. We request that the District provide both (1) a timeline for developing a second phase of the BBCW project by which additional flows would be made available to Biscayne Bay and its coastal wetlands and (2) a commitment to protect by its reservation authority the additional flows made available in a second phase. We set forth below (and in the attached line- through document of the proposed Basis of Review (BOR) changes) our specific concerns about the proposed BBCW Phase 1 project reservation. Groundwater. The Water Resources Development Act of 2000 (WRDA 2000) requires CERP reservations to provide assurance that federal dollars invested in Everglades restoration projects benefit the Everglades in significant ways, and that water made available by CERP projects to restore the natural system will not be permitted to other users. Nonetheless, the proposed BBCW Phase 1 project reservation expressly declares that all groundwater uses do not violate it (at BOR subsection A.1.). This statement contradicts acknowledgments in the technical document supporting the proposed rule (at page 31) that groundwater withdrawals in the region can impact coastal wetlands and nearshore ecologic conditions in the Biscayne Bay region. Given the District s own acknowledged potential for impact, we question the exemption of all groundwater users from the reservation s protections; it ignores the legal requirements for the CERP reservation and undermines the reservation s ability to protect the federal investment in the BBCW project. The exemption is also arbitrary and capricious, given the lack of information supporting a conclusion that groundwater users do not and cannot take water reserved for the BBCW Phase 1 project. No Notice and General Permits. We question the declaration without any specific review that certain no notice general permits do not take reserved water. We request that the District provide additional information supporting the claim that these uses will not withdraw reserved water both in terms of the types of uses covered by these permits and the likely number and size of users/uses covered by the permits. Terminated Uses. The proposed rule also expressly allows for terminated water uses to be replaced by new uses of the same magnitude and timing (proposed rule at BOR subsection A.5.). We are confused by this provision: if a new user can show that it does not have impacts beyond the use it replaces, it would not violate the reservation (which simply protects 1 Estimates of Flows to Meet Salinity Targets for Western Biscayne National Park, U.S. Department of Interior, Resource Evaluation Report, June 2008, pg. 1

3 existing flows, given current permitted uses) and would not need any additional protection. To expressly exempt uses designed to replace terminated uses from the reservation thus suggests some higher level of protection for replacement users that may complicate implementation of the reservation and protection of reserved water. Moreover, we are concerned by the implicit suggestion that terminated uses will be replaced by commensurate new uses as a matter of course. Allowing this kind of replacement use seems short- sighted in light of the documented extent to which we fall short even with the BBCW Phase 1 project in place of meeting target salinity levels for Biscayne Bay. We respectfully suggest eliminating this provision, allowing for a fuller discussion of how best to address terminated uses in the Biscayne Bay region outside of the context of reservation rulemaking. Operations. As discussed at the informal meeting following the BBCW Phase 1 water reservation scoping meeting on March 5, our organizations believe that operational improvements will provide additional benefits to Biscayne Bay. Specifically, the District must revisit the seasonal agricultural canal drawdown practice. The lowering of canals every fall to facilitate agriculture in the region plays a significant and adverse role in the timing, quantity, and distribution of the water the Bay receives. These operations result in water being flushed in volumes large enough to send the freshwater to the outer edges of the Bay, where it is lost to marine currents and does not stay and mix sufficiently to reduce hypersalinity events that damage the estuary s ecology. These operations also take needed dry season water from the canals, water that could otherwise be diverted by the BBCW project and help in reaching environmental targets. The drawdown can adversely impact the performance of the constructed BBCW L- 31E culverts feature. If the stage in the adjacent canal is maintained at or below sea- level, water will not flow in a more natural distributed manner through the culverts as designed. For all these reasons, the District should continue to experiment with operational alternatives that reduce impacts to the Bay, as was done in 2010 when canal levels were set to the intermediate levels after crop planting was completed and the duration of time at the low level was shortened. Biscayne National Park staff documented positive benefits for the Bay during this experiment, and landowners were not negatively impacted. Further experimentation with and optimization of canal levels to minimize the impact of this practice are needed to ensure water management practices do not undermine or reduce the benefits provided by restoration projects. Statement of Estimated Regulatory Costs. Finally, as rule development proceeds for the BBCW Phase 1 Project water reservation, we understand the SFWMD will prepare Statement of Estimated Regulatory Costs (SERC) for the rule. We underscore the importance of accounting for the economic benefits that the BBCW Phase 1 project will provide and highlighting the broader benefits of Biscayne Bay to Florida s economy as part of the SERC analysis. In a study presented to the Biscayne Bay Regional Restoration Coordination Team by Dr. Grace Johns, Biscayne Bay- related uses generated $7.5 billion in income to Florida residents in 2004 and residents and visitors spent 65.5 million person- days recreating on Biscayne Bay in See Economic Value of Biscayne Bay, Grace Johns, May 13, 2011, available at

4 hns.pdf. To similar effect, Dr. Joseph Boyer has analyzed on the relevance that ecosystems have to human well- being, including psychological health, social integration, and socio- cultural identity. See Dr. Joseph Boyer, MARES project, Things People Care About: A Pluralistic View of Ecosystem Services in South Florida, Everglades Coalition Conference, January 7, The undersigned organizations offer our support to the SFWMD through the SERC process to provide comments, affidavits, or other documents that bolster the analysis of benefits from ecosystem restoration. In conclusion we thank the District for making this water reservation for the BBCW Phase 1 project a priority. Biscayne Bay and National Park are unique marine treasures that are inextricably linked to our quality of life and economy in south Florida. This proposed water reservation is only a first phase as it merely protects a small portion of the total amount of water identified in the PIR as necessary to meet the BBCW project targets. We must continue searching for innovative ways to provide and protect additional water needed to restore the Bay and alter operations that expedite the decline of the Bay. Sincerely, (Signatures waived to expedite delivery) Megan Tinsley Audubon Florida mtinsley@audubon.org Kathleen E. Aterno Florida Director Clean Water Action katerno@cleanwater.org Sara Fain Senior Staff Attorney Everglades Law Center sara@evergladeslaw.org Kahlil Kettering Biscayne Restoration Program Analyst National Parks Conservation Association kkettering@npca.org Brad Sewell Senior Attorney Natural Resources Defense Council bsewell@nrdc.org Robert Stephen Mahoney Conservation Chair, Miami Group Sierra Club rsmahoney@bellsouth.net Laura Reynolds Executive Director Tropical Audubon Society director@tropicalaudubon.org

5 APPENDIX 1: DRAFT RESERVATION 40E Water Reservation Areas: Lower East Coast Planning Area (1) Nearshore Central Biscayne Bay as defined in subsection 40E (6), F.A.C.: All surface water contained within Nearshore Central Biscayne Bay is reserved from allocation (see Figure 3-1). (2) Surface water flowing into Nearshore Central Biscayne Bay as identified below is reserved from allocation: (a) Surface water flows depicted on Figures 3-2.A and 3-2.B through S-123 derived from the following contributing canal reaches: 1. The C-100A canal upstream of S-123 to S-120 including all integrated conveyance canals. 2. The C-100C canal upstream of S-123 to S-119 including all integrated conveyance canals. 3. The C-100B canal upstream of S-123 to S-122 including all integrated conveyance canals. 4. The C-100 canal upstream of S-123 to S-118 including all integrated conveyance canals. (b) Surface water flows depicted on Figures 3-3.A and 3-3.B through S-21 derived from the following contributing canal reaches: 1. The L-31E borrow canal upstream of S-21 to the canal terminus. 2. The C-1 canal upstream of S-21 to S-122 and S-149 including all integrated conveyance canals. 3. The C-1 canal upstream of S-21 to the C-1W canal and S-338 including all integrated conveyance canals. (c) Surface water flows depicted on Figures 3-4.A and 3-4.B which is the combined flow through S-21A, S-20G, and S-20F as derived from the following contributing canal reaches: 1. The C-102 canal connecting to the C-102 N canal upstream of S-21A to S The C-102 canal upstream of S-21A to S The L-31E borrow canal upstream of S-21A to its terminus near S-21 including the Gould s Canal. 4. The L-31E borrow canal upstream of S-21A south to S-20G. 5. The Military canal upstream of S-20G. 6. The C-103 canal upstream of S-20F to S The L-31E borrow canal upstream of S-20F to S-20G including all integrated conveyance canals. 8. The L-31E borrow canal from S-20F south to the North Canal. 9. The North Canal from the L-31E borrow canal to 6th Avenue. 10. The L-31E borrow canal from S-20F south to the Florida City Canal. 11. The Florida City Canal from Southwest 107th Avenue to its confluence with the L-31E borrow canal. Notwithstanding the above, presently existing legal uses for the duration of a permit existing on are determined to be not contrary to the public interest pursuant to Section (4), F.S. Reservations contained in the section shall be reviewed in light of changed conditions or new information.

6 Nearshore Central Biscayne Bay A permit applicant shall provide reasonable assurances that the proposed use will not 34 withdraw water reserved under subsection 40E (1), F.A.C. Compliance with the 35 following criteria constitutes reasonable assurances that water reserved in Rule 40E , F.A.C., will not be withdrawn. Water not reserved under Rule 40E , 7 F.A.C., shall be allocated pursuant to Subsection A For this section, the following definitions apply: Direct withdrawal: Withdrawal of surface water from facility intakes physically located 42 within the surface water column of Nearshore Central Biscayne Bay as depicted on 43 Figure 3-1 in Chapter 40E-10, F.A.C. No direct withdrawals shall be authorized 44 pursuant to this rule Indirect withdrawal: Withdrawal of surface water from facility intakes physically located 2 within the surface water column of any canal reach identified in Figure 3-1 in Chapter E-10, F.A.C. 4 5 A. The following uses do not withdraw reserved water: Withdrawals of groundwater Withdrawals authorized by Rules 40E (No Notice General Permit by 10 Rule) and 40E (2) and (3), F.A.C. (Dewatering General Water Use Permit 11 and No- Notice Short Term Dewatering General Water Use Permit) Renewals of indirect withdrawals authorized by a permit existing on [RULE 14 ADOPTION DATE] A permit modification involving an Indirect withdrawal authorized by a 17 permit existing on [RULE ADOPTION DATE] that does not change the source, 18 increase the allocation or change withdrawal locations, such as replacement of 19 existing surface water pumps or intakes, crop changes that do not change the 20 allocation or timing of use, or decrease in allocation A new indirect withdrawal with no greater allocation and impact, including 23 changes in timing, than a terminated or reduced permit that was existing on 24 [RULE ADOPTION DATE] and occurs upstream of the same coastal structure Indirect withdrawals which do not withdraw reserved water as defined in 27 Rule 40E F.A.C. 28