PURRE position

PURRE Position Paper

Michael Valiquette

Ms. Yvonne Haberer
U.S. Army Corps of Engineers
Jacksonville District, Planning Division
Environmental Branch
P.O. Box 4970
Jacksonville, Florida 32232-0019

Dear Ms. Haberer:
The PURRE Water Coalition, ie: People United to Restore our Rivers and Estuaries (referred to herein as “PURRE”) submit these comments on the Draft Supplemental Environmental Impact Statement for the Lake Okeechobee Regulation Schedule Study (“DSEIS”). To conserve space, we generally incorporate by reference the comments submitted by other governmental and nongovernmental entities in the Caloosahatchee River and Estuary area, including Lee County and the City of Sanibel. We have similar concerns about the adequacy of the “preferred alternative” and the analysis contained in the DSEIS, which we believe is wholly lacking in sufficient detail, and ignores critical issues that must be assessed.

BACKGROUND
PURRE is a non-profit organization committed to the protection of environmental resources in and around the Caloosahatchee River and Estuary. PURRE has 800 members who live and work in and around the Caloosahatchee Estuary. Our members have joined together in PURRE based on their common concern for the future of our local environment. A healthy Estuary is an important part of our quality of life, and we are directly affected by its degradation. As such, PURRE has a strong interest in the schedule regulating releases from Lake Okeechobee to the Caloosahatchee River and Estuary.
The Caloosahatchee River and Estuary define the surrounding communities. They act as home to a variety of vegetation, fish, and wildlife, several of which are listed as endangered or threatened; a drinking water source to local residents; and home to five national wildlife refuges – including the single most visited wildlife refuge in the country. Additionally, the Caloosahatchee River and Estuary serve as recreational resources to residents and tourists alike. Our environment is also a source of revenue to Lee County as tourist destinations. Our quality of life is defined, to a great extent, by the health of the estuary.
The Caloosahatchee River has received highly polluted discharges of water from Lake Okeechobee (“the Lake”) for years, which is seriously degrading the Estuarine environment. The impacts of the polluted waters that have been released from Lake Okeechobee down the Caloosahatchee River are devastating and simply cannot be overstated. The Lake waters are displacing marine life and killing seagrasses because they dilute the salinity in the Estuary. Additionally, the cloudiness of the Lake water blocks sunlight, which results in the death of plants, which, in turn, results in the death or relocation of marine life. The high nutrient releases from Lake Okeechobee have contributed to red tide and blue-green algae, both of which have been deadly to both vegetation and fish, including the endangered West Indian manatee. These are only a few of the most harmful effects of Lake releases to the Caloosahatchee River. In fact, the quality of the Caloosahatchee has deteriorated so much that it has been placed on the list of the most endangered rivers by American Rivers, a non-profit environmental group committed to protecting rivers in the United States; it is 2006 Most Endangered River #7.
We appreciate the fact that the U.S. Army Corps of Engineers (“Corps”) has made an effort to consider the impacts of releases from Lake Okeechobee on the Caloosahatchee River and Estuary in the DSEIS, and we thank the Corps for such consideration.
However, we, like many others, have significant concerns regarding the proposed new Lake Okeechobee Regulation Schedule (“LORS”). We believe the analysis in the DSEIS is wholly insufficient and needs to be improved before any new schedule is approved and implemented.

COMMENTS
I. The DSEIS Does Not Consider an Adequate Array of Alternatives
A. The Corps Applied an Imbalanced Set of Criteria for the Selection of Alternatives
Throughout the DSEIS, the Corps repeatedly states that it is attempting to balance various project purposes in the selection of the alternatives, including water supply, flood control, water quality, enhancement of fish and wildlife resources, navigation, recreation, and public health and safety. On the concept of balancing multiple project purposes, the DSEIS repeats the mantra of “shared adversity.” Most of these project purposes, however, have no hard quantitative criteria to evaluate compliance; instead, throughout the DSEIS, the Corps evaluates these project purposes as it sees fit on a sliding scale.
However, review of the DSEIS confirms that the Corps has heavily weighted the alternatives in favor of certain interests and purposes, resulting in a predetermination of the alternatives assessed within the DSEIS. Indeed, only two of the multiple factors underlying the various project purposes have “hard” constraints: 1) to achieve zero or close-to-zero days above lake elevation 17.25 ft., NGVD; and 2) a maximum limitation on the releases passed through Stormwater Treatment Area-3/4 (“STA- 3/4”) to the Everglades. Alternatives that did not meet these two criterion were eliminated and not even assessed in the DSEIS. These two hard constraints, taken either individually or together, dictate, and unnecessarily limit, the choice of alternatives considered within the DSEIS and, almost by definition, mean that the Caloosahatchee Estuary will suffer significant impacts under each of the alternatives assessed in the DSEIS, including the Tentatively Selected Plan (“TSP”):
• The 17.25 ft. criterion means that high water levels cannot be stored in the Lake for future use, and must be released to keep water levels low. As there are only three places to which Lake Okeechobee waters are released – the Caloosahatchee River, the St. Lucie River and the Water Conservation Areas (“WCAs”) – this constraint necessarily results in alternatives that will cause harm to the Caloosahatchee River and Estuary. Modeling contained in the DSEIS indicates that more than half of the Lake releases are sent to the Caloosahatchee Estuary.
• The STA-3/4 capacity limitation means that Lake water cannot be sent to the WCAs in any significant amount, especially during the wet season when high water levels are most likely to be a problem. This results in more Lake water being sent down the Caloosahatchee River into the Estuary.
This heavy weighting of these two factors, which necessarily tips the balance against the well-being of the Caloosahatchee Estuary, means that there will not be true “shared adversity” because Lake Okeechobee and the WCAs get built-in priority above the Caloosahatchee Estuary before analysis of the impacts even begins. This is particularly disconcerting in light of the statement on page 1 of the DSEIS that the Caloosahatchee Estuary is one of only a few areas that will receive “the greatest scrutiny in terms of impact assessment.” While the first page of the DSEIS names the Caloosahatchee Estuary as one of the top priorities in terms of impact, the only two hard constraints – the 17.25 ft. or lower Lake water level goal and the STA- 3/4 storage capacity maximum – make the Caloosahatchee Estuary the absolute last priority. Under the Tentatively Selected Plan, the Caloosahatchee would receive at least 58% of all flood control releases from Lake Okeechobee.
To make matters worse, there is no support for weighting these two criterion in such as fashion. The 17.25 ft. constraint appears to be entirely arbitrary. We recognize that recent studies show that the Herbert Hoover Dike has aged poorly, needs to be repaired and improved. Of course, we support the idea that Lake Okeechobee water levels need to be managed in a way to avoid public harm that may result from problems with the Dike. However, we are aware of no technical document or engineering study that indicates that 17.25 feet is the Lake level at which there should be zero or close to zero days above it for a 36 year period of record, the goal set forth in the DSEIS. Indeed, as conceded in the DSEIS, technical studies suggest that issues such as seepage, piping, and boils are exacerbated when the Lake elevation approaches 18.5 ft., not 17.25 ft. See, e.g., DSEIS, at p. 7. We note that Lake levels have exceeded 18.5 feet on only 3 occasions, and since the 1930s the Lake has been above 18 feet less than 1% of the time. We also note that Lake Okeechobee has an area of approximately 730 square miles, so even the slightest amount of flexibility on the maximum lake level (e.g. 17.5 ft. vs. 17.25 ft) would result in much less harmful, polluted water being released from the Lake to the Caloosahatchee Estuary. At a minimum, modeling must be conducted to assess the impact, if any, that Lake levels higher than 17.25 ft. would have on the integrity of the Dike.
The STA-3/4 constraint is a blatant double standard that places the interests of the WCAs over the interests of the Caloosahatchee Estuary and its surrounding communities. Unstated in the DSEIS is that the STAs were installed to treat water in order to avoid water quality violations in the WCAs. We agree that the Everglades should not receive polluted water that violates water quality standards. The STA constraint in the DSEIS essentially is a water quality constraint because, if water is untreated in the STAs, then it would be sent dirty to the WCAs. Placing an STA constraint in the LORS means that the Corps is unwilling to violate water quality standards in the WCAs. In comparison, there is little question that releases from the Lake are, at a minimum, contributing to violations of water quality standards in the Caloosahatchee Estuary, yet there is no similar contract to that for the WCAs. We simply do not understand why the Corps is willing to adopt a hard constraint based on water quality for the WCAs but not for the Caloosahatchee Estuary. Absent such an equal application of water quality standards, the STA-3/4 criterion appears to be an unsupportable double standard that works against the Caloosahatchee Estuary.
B. The DSEIS Does Not Include Any Alternative That Would Provide Significant Benefits to the Caloosahatchee Estuary
Every alternative considered in the DSEIS will result in significant discharges of polluted Lake water into the Caloosahatchee Estuary. The TSP will actually increase the number of extreme releases (above 4500 cfs) to the Caloosahatchee Estuary over the number of such releases that would occur if the release schedule remained unchanged. The Corps acknowledges this, and further acknowledges that there are no significant benefits to the Caloosahatchee Estuary from any of the alternatives analyzed within the DSEIS, including the Preferred Alternative. Indeed, in some respects, the “no action” alternative (the Water Supply and Environment schedule (“WSE”)) is the best alternative for the Caloosahatchee Estuary, which is ironic given the well-established harmful impacts it has caused in recent years, and the great concern for the Estuary repeatedly expressed by Stakeholders as a result of the impacts of the WSE.
Given the significant detrimental impact that releases from Lake Okeechobee have had on the Caloosahatchee Estuary, and the concern repeatedly expressed in the DSEIS to limit such harmful impacts to the maximum extent possible, the Corps should evaluate at least one alternative that will result in significant benefits for the Caloosahatchee Estuary and its surrounding communities. This is particularly true in light of the fact that the first page of the DSEIS cites to the well-being of the Caloosahatchee Estuary as a concern on equal footing with the well-being of Lake Okeechobee. If the Corps does not evaluate such an alternative at this point, it will lose the opportunity to change such an alternative at the time of decision.
One alternative that would result in benefits to the Caloosahatchee Estuary is Alt. 1-as2, which the interagency team recommended during preliminary stages of the process. This alternative was eliminated from consideration due to the 17.25 ft. lake-level criterion, simply underscoring the above-identified problem with using the 17.25 ft. criterion as a hard constraint in choosing the alternatives assessed. Even if the Corps rejected Alt. 1-as2 for some other reason, and chose to consider other alternatives that resulted in significant benefits to the Caloosahatchee Estuary, we would feel that the process was more fair.
C. There Is No True No Action Alternative
NEPA regulations require that the Corps analyze a “no action” alternative, i.e., what would happen if the Corps made no changes whatsoever. The Corps fails to comply with such regulations in the DSEIS, which does not contain an analysis of a true “no action” alternative. Instead, the “no action” alternative analyzed in the DSEIS is a combination of the current schedule, WSE, plus a change  specifically, “the addition of temporary forward pumps.” DSEIS, at p. 13. Regardless of whether operation of temporary forward pumps is appropriate, the DSEIS should not include those in the “no action” alternative. Instead, the DSEIS should – as required under NEPA regulations – analyze a true “no action” alternative (WSE) with no modifications or additions. With a true “no action” alternative, the Corps could always analyze another alternative consisting of the WSE schedule along with the temporary forward pumps but substituting the WSE plus temporary forward pumps.
On a different, although related, note, we are concerned that the Corps is evaluating the temporary forward pumps in a separate NEPA process from the proposed new lake regulation schedule. The only real purpose for the forward pumps is to allow the Lake to be operated at a lower level consistent with the TSP and still provide irrigation water for water users around the Lake. Thus, the temporary forward pumps and the proposed new lake regulation schedules are connected actions that necessarily have cumulative impacts. Analysis of these temporary forward pumps pursuant to various environmental laws, including NEPA, must occur together in the DSEIS.
II. The DSEIS Does Not Adequately Analyze the Environmental Impacts of Each Alternative
A. There are Flaws in the Hydrological Modeling Underlying the DSEIS
All of the hydrological modeling underlying the analysis in the DSEIS was performed using a 36 year period of record, from 1965 to 2000. However, some of the very worst impacts of Lake releases on the Caloosahatchee River and Estuary have occurred since 2000; it is well-documented that there were high water levels at various points. These higher water levels in recent years may signify the start of a wetter climactic period. Exclusion of the data from these post-2000 years both skews the analysis and conceals from the public what would have happened to the Caloosahatchee Estuary in the past few years if the TSP had been in place and, as a result, misrepresents what would have happened during those years. But, perhaps more importantly, data from post-2000 is some of the most basic, useful information that the public and water managers could have in evaluating the different alternatives. Ignoring such critical data, as the DSEIS does, simply makes no sense and results in a less than complete analysis.
There are other apparent flaws in the modeling. The Corps assumed that 12-16% of Lake releases could be sent down the L-8 canal, when there are limitations on such discharges due to environmental in downstream receiving waters. The Corps assumed steady flows for the Estuary base flows, when the South Florida Water Management Model (“SFWWM”) may not be designed to model such flows. The SFWMM also cannot model discretionary actions which are undefined in the plan. We believe there are other technical flaws with the modeling as well.
B. There Is Virtually No Discussion of Water Quality Issues and Impacts
1. There is No Discussion of How Lake Releases Damage the Caloosahatchee Estuary
The discussion in the DSEIS of water quality impacts in the Caloosahatchee Estuary does not even close come to scratching the surface of the facts and, indeed, seems quite superficial. While general acknowledgements that Lake releases are contributing to the continued deterioration of the Caloosahatchee Estuary are peppered throughout the DSEIS (e.g., pgs. i, 8, 78, 83-84, 102, 105, 111, 125-26), the DSEIS contains zero discussion of why and/or how such high regulatory releases cause impacts. This is particularly surprising given the fact that there is an abundance of evidence available on the subject. Indeed, available evidence suggests that water releases from the Lake harm the Caloosahatchee Estuary in many different ways, including the following:
• large freshwater inflows caused by Lake Okeechobee releases affect salinity levels;
• water from the Lake can be dark in color and turbid, affecting light attenuation for submerged aquatic vegetation;
• Lake releases contain high concentrations of nutrients, which are harmful to estuarine life and spur the growth of algae (including toxic blue-green algae) and red tide.
The DSEIS even acknowledges these impacts, but does so in other contexts instead of acknowledging and assessing the devastating harms such impacts have on the Caloosahatchee Estuary.
Instead of taking for granted that any release schedule will necessarily result in harms to the Caloosahatchee Estuary, as the DSEIS does, the Corps needs to analyze such potential impacts of Lake releases. It is well-known that most problems in the Estuary are linked to these water quality issues. We cannot really understand how harmful the Lake releases truly are unless these issues are each analyzed separately, and in a detailed fashion.
2. There is No Analysis of the Different Water Quality Impacts of the Various Alternatives
The DSEIS contains no discussion of how the different alternatives affect water quality in the Caloosahatchee Estuary. The sole focus in the DSEIS is on the number of days that Lake releases are above or below certain rates of flow, with virtually no discussion of what different alternatives would mean for salinity issues, nutrient loading, color/turbidity, or other critical issues relevant to the well-being of Estuary. For example, there is simply no discussion of effects of different alternatives on salinity, nutrient loading or water clarity in the estuary. There should be, at a minimum, modeling of water quality impacts in the Estuary such as the modeling done for the STAs and the Total Maximum Daily Loads. We note that the TSP, which apparently will increase average annual flows to the Caloosahatchee Estuary by at least 31,000 acre-feet (and even more in wet years), may cause an additional 4-24 tons of phosphorus to enter the Caloosahatchee Estuary each year (based on the increase in average annual flows). Such impact cannot be insignificant.
There is also no discussion of how water quality impacts are likely to relate to secondary ecological impacts, such as health of plants and seagrasses, algae growth, marine organisms, or fish. Without such modeling and analysis of water quality impacts, the Corps cannot know whether the new regulation schedule will be better or worse for the Estuary. For instance, if nutrient loading is the key issue, the TSP might cause greater problems than WSE even though there are fewer flows in the range of 2800-4500 cfs. The DSEIS needs to analyze these issues to determine the answers to these and other critical questions.
3. There is No Discussion of Compliance with Water Quality Standards
Glaringly absent from the DSEIS is any discussion of whether the Caloosahatchee River and Estuary, and associated waters, are currently meeting Florida water quality standards. Indeed, the Corps also does not indicate, or even address, whether releases from Lake Okeechobee have any affect on compliance with Florida water quality standards in the Caloosahatchee River and Estuary.
4. There is No Analysis of the Effect of Different Alternatives on Blue-Green Algae and Red Tide
The DSEIS does not analyze the effect of the different alternatives on algae growth, including blue-green algae and red tide, despite the fact that such algae has plagued the Caloosahatchee Estuary in recent years. These algae are harmful to fish, marine organisms, wildlife, and humans. Blue-green algae may be toxic and has resulted in public health officials issuing orders prohibiting swimming in the areas of the Caloosahatchee where there is an algae bloom. Red tide in the Caloosahatchee has likely caused the deaths of many manatee, an endangered species.
Both organisms are fed by nutrient-enriched waters, such as the waters released from Lake Okeechobee to the Caloosahatchee Estuary. To the extent that the Corps is contemplating sending more nutrient-enriched water to the Caloosahatchee Estuary, which the TSP would do if implemented, the DSEIS must analyze the effect of this additional polluted water on the growth of blue-green algae, red tide, and other similar aquatic growths.
C. There is No Discussion of Drinking Water Issues
The DSEIS similarly contains absolutely no discussion of drinking water issues raised by the proposed regulation schedule, despite the potential for harm to the public if drinking waters become contaminated. The Caloosahatchee River is a direct source of drinking water for Lee County residents and tourists. In recent years, the Caloosahatchee River has experienced significant growths of blue-green algae, which produce toxins at certain stages of life that are harmful to fish, wildlife, and humans. These outbreaks have been linked to the nutrient-enriched releases from Lake Okeechobee. Potential harmful impacts have led officials to prohibit swimming when toxic blue-green algae was documented by a Lee County water plant near the Caloosahatchee. Indeed, there is some anecdotal evidence that animals have died after swimming and/or drinking water from the Caloosahatchee River that contained blue-green algae.
We are very concerned that such algae and/or toxins could be drawn into Lee County’s drinking water supply and gravely threaten the health of Lee County residents. If it is unhealthy to swim in such waters, as public health officials have already proclaimed, it is certainly unhealthy, and potentially deadly, to drink such water. We cannot overstate how critical it is that the DSEIS study this issue, and the effect that the different alternatives might have on the growth of blue-green algae in the Caloosahatchee. In publicly held meetings, the Corps has stated that public health and safety overrides all other issues: if that is the case, we do not understand why the Corps has not evaluated this critical public health issue in the DSEIS.
D. The Discussion of Endangered Species Impacts is Completely Deficient
The DSEIS’s discussion of endangered species issues is remarkably weak, focusing almost exclusively on endangered species issues in Lake Okeechobee, as opposed to the Caloosahatchee River and Estuary and other areas that are undeniably impacted greatly by Lake releases. Indeed, there is virtually no discussion in the DSEIS of how the different alternatives might affect listed species and marine mammals in the Caloosahatchee Estuary, in particular the West Indian manatee, the Florida smalltooth sawfish, and various species of sea turtles. For instance, the DSEIS only discusses manatee impacts in Lake Okeechobee itself, and not in the Estuary. This is surprising given the fact that portions of the Caloosahatchee, and not the Lake, have been designated as critical habitat for the manatee and that hundreds of manatee in the Caloosahatchee and surrounding areas have died due to red tide, which is likely linked to the nutrient-enriched waters that are released from Lake Okeechobee down the Caloosahatchee River. Similarly, there is virtually no discussion of what affects any of the alternatives might have on the sawfish in the Caloosahatchee River and Estuary. And sea turtles are barely mentioned in the DSEIS and are not even included in the list of threatened or endangered species in the DSEIS.
The assertion in the DSEIS that there are no impacts to listed species clearly is wrong, even based on the information included within the DSEIS itself. For example, as set forth in the DSEIS, manatees are present in the Caloosahatchee River and Estuary area. As the DSEIS states, manatees rely on seagrass, see DSEIS, at p. 78, which the DSEIS characterizes as “undoubtedly among the most important vegetation of the Caloosahatchee Estuary,” see DSEIS, at p. 62. The DSEIS concedes that releases from Lake Okeechobee cause the mortality of seagrasses. Moreover, destruction of critical manatee habitat may force manatees to move to other locations, which could expose them to even greater risks (e.g., boat strikes, red tide). It is also thought that manatees in the Caloosahatchee Estuary and other areas have died as a result of red tide and other algae growths. Nonetheless, the DSEIS fails to assess these possible impacts on the manatee in the Caloosahatchee area and, instead, confines its impacts analysis on the manatee to four sentences focused on impacts to manatee in Lake Okeechobee and, even then, quite surprisingly cursorily concludes that there will be no adverse effect on habitat conditions for the manatee within the Lake as a result of any of the alternatives. We believe this to simply be an unsupportable conclusion.
The sawfish analysis is similarly flawed and inaccurate in its ultimate conclusion of no adverse impact. The sawfish is a highly endangered species. And the Caloosahatchee River is one of the primary habitats of the sawfish; indeed, as the DSEIS states at p. 101, “[i]t would be more common for the smalltooth sawfish to be found along the coastal areas of the Caloosahatchee Estuary, or near the mouth of the Caloosahatchee River,” both of which have seagrass communities that the DSEIS concedes will continue to be destroyed by releases from Lake Okeechobee. And, as the DSEIS further concedes, the destruction of seagrass in the Caloosahatchee due to high releases from Lake Okeechobee, such as those contemplated under TSP, has caused the destruction of small fish populations, including sawfish. The DSEIS states that “juvenile sawfish use shallow habitats with a lot more vegetation, such as mangrove forests and SAV [seagrass], as important nursery areas.” DSEIS, at p. 101. The DSEIS further states that, “[a] more stable salinity regime may result in increased SAV coverage, and therefore increase the population of small fish and benthic organisms, which are a food source for the sawfish.” DSEIS, at p. 101. In other words, less releases from the Lake will be beneficial to the sawfish, while more releases, such as those that would occur under TSP, will be harmful. The DSEIS conclusion that the Preferred Alternative “may affect” but is “not likely to adversely affect” the sawfish is simply incorrect in light of all of the impacts the DSEIS identifies, but fails to thoroughly analyze.
E. There is No Discussion of Impacts on Federal Resources in the Caloosahatchee Area
There are five National Wildlife Refuges that depend on the Caloosahatchee River for water. These include the most visited refuge in the country, the J.N. “Ding” Darling National Wildlife Refuge, in addition to the Caloosahatchee National Wildlife Refuge, Island Bay National Wildlife Refuge, Matlacha Pass National Wildlife Refuge, and Pine Island National Wildlife Refuge. All of these national refuges are important national resources, many of which are showing signs of impaired ecosystems as a result of the polluted waters that are released from Lake Okeechobee and sent down the Caloosahatchee River. Nonetheless, the DSEIS contains absolutely no discussion of how releases from Lake Okeechobee may impact these Refuges.
F. There Is No Discussion of Cumulative Impacts
NEPA regulations require that the Corps fully disclose the cumulative impacts of its actions. In this case, it cannot be contested that the years of high water releases from Lake Okeechobee have caused significant damage to the Caloosahatchee Estuary. The DSEIS repeatedly acknowledges this point. Even if the Preferred Alternative has marginal benefits in some ways for the Caloosahatchee Estuary – which we do not believe to be the case – it mostly continues and, in certain instances, increases, the same levels of high water releases that have caused irreparable damage to the Caloosahatchee Estuary during recent years. We believe that with the years of damage that already have occurred as a result of high releases from the Lake, the additional heavy discharges that will occur if the Preferred Alternative is ultimately approved and implemented may be the “tipping point” that causes irreversible damage to the Caloosahatchee Estuary. It therefore is critically important that the DSEIS analyze what will be the cumulative effect of the releases from Lake Okeechobee on the Caloosahatchee Estuary.
Given the importance of a cumulative impact analysis, we were disappointed to see that the Corps devoted only a single paragraph to cumulative impacts in the DSEIS. More importantly, the DSEIS failed to actually analyze such cumulative impacts or make an ultimate determination about the cumulative impacts of releases from Lake Okeechobee on the Caloosahatchee Estuary. The Corps also did not analyze the likely long-term, cumulative effect of the proposed lake regulation schedules as reasonably foreseeable future projects, of which there are many, become implemented. Delaying that analysis for a future EIS (which the Corps has indicated it will do) is unacceptable since NEPA requires that the Corps analyze the cumulative impacts of this action before it implements the new regulation schedule, not after.
We are concerned that delaying analysis of long-term impacts to a future EIS may mean that these issues are never fully analyzed until it is too late for the Caloosahatchee Estuary. While we believe the Corps is acting in good faith to prepare the future EIS, we also know that there are many factors beyond the Corps’ control that might halt or slow down such future NEPA processes. This has happened in the past. For instance, in the mid-1990s, the Corps prepared an EIS for construction of the C-111 project in Miami-Dade County, and promised to later prepare a separate EIS for the operation of the project. That second EIS is still not completed, a decade later. That experience and others suggests that unless these issues are analyzed and addressed now, they may never be addressed.
We also are very concerned with the cumulative effects of the new regulation schedules on the Comprehensive Everglades Restoration Plan (“CERP”). The guiding principle for the CERP was to store more water in the Central and South Florida Project (“C&SF Project”) for later use. The TSP assumes that the Lake is operated more than one foot lower on average than the WSE (eg. 17.25 vs. 18.5). This means that approximately 467,000 acre-feet of average annual storage will be lost. In order to make up this storage elsewhere, it would require an additional 78,000 acres of reservoirs that store water 6 feet deep. Even if the CERP contemplates alternative storage locations in future decades, there is no such replacement storage contemplated for the coming years. The DSEIS does not analyze these issues. The DSEIS should address the cumulative impacts of the proposed new regulation schedules on Everglades restoration as a whole, including analyzing what such a schedule might mean for the CERP.
III. The DSEIS Does Not Demonstrate that the Corps Has Fully Complied with Various Legal Requirements
NEPA regulations require federal agencies to consolidate discussion of other statutory compliance issues in an EIS. The DSEIS fails to adequately analyze such compliance, in most instances devoting only a single, short paragraph to the discussion of such compliance.

A. Endangered Species Act
As discussed above, the DSEIS has a poor discussion of endangered species issues and, similarly, has a weak discussion on compliance with the Endangered Species Act (“ESA”). It does not make a clear case that the Corps is in compliance with the ESA, even in the section entitled “Compliance with Environmental Requirements.” In particular, the DSEIS indicates that there is no ongoing consultation with the Fish and Wildlife Service (“FWS”) regarding the manatee. The DSEIS similarly indicates that there is no ongoing consultation with the National Marine Fisheries Service (“NMFS”) regarding the smalltooth sawfish, despite obvious impacts. Other specieis discussed above are apparently being given short shrift. Section 7 of the ESA unequivocally requires consultation with fish and wildlife agencies whenever an agency action such as the proposed action is likely to adversely affect a listed species.
B. Clean Water Act
The Corps has taken the position that it is not required to get a water quality certification from the state under Section 401 under the Clean Water Act (“CWA”). Indeed, we note that the Corps never sought or obtained such certification for the WSE schedule in 2000. However, we respectfully disagree and believe that the Corps is required to obtain water quality certification from the State of Florida in connection with the proposed action because there will undoubtedly be various federal permits and licenses that it seeks in order to implement the proposed new regulation schedule, including authorizations under the ESA and CWA.
The Corps also does not have a National Pollutant Discharge Elimination System (“NPDES”) permit under Section 402 of the CWA for the various water control structures related to Lake Okeechobee and the Caloosahatchee River. We believe that those water control structures are “point sources” subject to NPDES permitting requirements. Lake Okeechobee and the Caloosahatchee River are separate bodies of water – the river historically never connected with the lake. The Supreme Court’s recent decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), supports our interpretation that the Section 402 NPDES permitting requirements apply here. The Corps has not complied with those permitting requirements, and such failure to comply with requirements of the CWA should be acknowledged by the Corps in the DSEIS and, ultimately, corrected.
C. State Permitting Requirements
Setting aside the Corps’ failure to comply with federal permitting requirements, the Corps does not even mention Florida permitting requirements. Chapter 373 of the Florida Statutes, specifically, Fla. Stat. § 373.219, requires all “persons,” including federal agencies, to obtain permits before they make consumptive or other uses of water. Releases from the Lake to the Caloosahatchee River, especially releases for flood control purposes, are subject to these Florida water use permitting requirements because they make water unavailable for other users. The Corps also is subject to Florida permitting under the Lake Okeechobee Protection Act, Fla. Stat. § 373.4595, as it is an owner and operator of key structures. We have no information that the Corps has ever applied for or obtained such permits. The DSEIS also does not indicate whether the Corps is in compliance with Florida permitting requirements. All of these issues should be discussed.
IV. There Is No Discussion of Mitigation Measures
NEPA regulations generally require the Corps to identify and discuss potential mitigation measures. 40 C.F.R. 1502.16(h). However, the DSEIS contains no discussion whatsoever of measures that could mitigate the adverse impacts of lake releases on the Caloosahatchee Estuary. We believe that adverse impacts could be mitigated in many ways, and the Corps should discuss such mitigation measures.
In closing, we note the statement in the DSEIS that “[t]here will always be a level of controversy with any issue related to water management in south Florida.” See DSEIS at p. ii. We find that statement to be patronizing because it suggests that our concerns are not real and implicitly labels us as complaining nags. Our concerns are very real, as we are serious people.
Thank you for giving us the opportunity to provide these comments. We look forward to continuing to provide the Corps assistance as it considered the LORSS.
Best regards,

Michael J. Valiquette, Chairman PURRE Water Coalition People United to Restore our Rivers and Estuaries