Daniel Webster: ‘Savings Clause’ — a simple promise to preserve Florida’s water supply while undertaking Everglades restoration

For nearly 30 years, Florida and the U.S. Government have made restoring Florida’s “River of Grass” a high priority.

During my time in both the Florida Legislature and U.S. Congress, support for the Everglades has received broad and consistent support, with public and private stakeholders stepping up to ensure the projects designed to fix the Everglades continue to move forward.

Unfortunately, the federal government has largely ignored a critical component of ensuring that those who depend on water — farmers, municipalities, businesses, and residents — can continue to get the water they were promised. Efforts are underway to ensure that the promise first made by Congress in 2000 continues to be kept.

This week, a panel of three federal judges on the U.S. Court of Appeals for the 11th Circuit will hear oral argument in Atlanta in a water-rights case that will decide whether the U.S. Army Corps of Engineers needs uphold water supply commitments made to agricultural and residential water-users over 20 years ago.

The case centers on the “Savings Clause,” which was a central component of the “Water Resources Development Act of 2000” (“WRDA 2000”). That provision was critical to ensuring congressional authorization for the “Comprehensive Everglades Restoration Plan” (“CERP”). CERP represents one of the only agreements ever in which a state (Florida) entered into a voluntary agreement with the federal government to restore its natural resources (the Everglades).

That agreement was voluntary because it included the central assurance that the Corps could help restore the Everglades without depriving existing urban and agricultural users of their water rights by essentially increasing the water pie rather than reallocating slices from one user to another. That agreement remains in force today, and the Savings Clause has always stood at the center of the compromise.

I know because I was there.

Unfortunately, the Corps has failed to live up to its end of the agreement, necessitating this lawsuit. On Nov. 20, the 11th Circuit has an opportunity to respect the Savings Clause’s plain language and honor the fundamental bargain the parties struck over 20 years ago.

The bipartisan CERP plan took nearly a decade to develop, and then-President Bill Clinton finally signed this historic restoration plan into law on Dec. 11, 2000. CERP envisioned that the Corps would oversee 68 projects across south and central Florida, with the aim of restoring the ecosystem by protecting water supply and flood control.

But municipalities, business owners, tribal nations, and agriculture had some understandable concerns during the negotiating process — chief among them that implementing 68 large-scale projects could have the unintended adverse consequences of diverting away their existing water or causing more flooding. So, all involved developed a provision — the Savings Clause — to assuage these concerns. In particular, the Savings Clause said that “[u]ntil a new source of water supply of comparable quantity and quality as that available on the date of enactment of this Act is available to replace the water to be lost as a result of implementation of the plan,” the Corps “shall not eliminate or transfer existing legal sources of water.”

The Savings Clause further provides that “[i]mplementation of the plan shall not reduce levels of service for flood protection that are … in existence on the date of enactment of this Act.” That language provides a straightforward mandate to the Corps: developing CERP projects should not take away the water or flood control they had in 2000.

Simply put, the Corps cannot rob Peter to pay Paul; instead, it must honor existing water rights and increase the overall water pie to accomplish the important objectives of CERP.

This mirrors long-established Florida law, which requires ensuring existing users are held harmless before water rights are allocated to new uses.

With the Savings Clause fully vetted and added to WRDA 2000, Florida and the federal government entered into the historic agreement to restore the Everglades.

Twenty-four years later, as CERP projects linger and costs escalate, the Corps’ willingness to abide by the clear text of the Savings Clause has apparently fallen victim to the politics of Everglades restoration. CERP implementation requires water — a lot of water — and the CERP project at the center of the Savings Clause dispute before the Eleventh Circuit is no exception. Constructing projects to store this magnitude of water is expensive and time-consuming, and storage reservoirs cannot just sit empty. As pressure mounted on the Corps, urban users south of Lake Okeechobee and farmers’ water supply were easy pickings for a quick restoration fix.

How did the Corps justify this result? In public documents, the Corps has taken the position that the year 2000 in the Savings Clause does not really mean the year 2000. The agency says a different and significantly lower baseline — one advertised as a temporary measure to fix the Herbert Hoover Dike that surrounds Lake Okeechobee — can be used to measure the effect of CERP implementation on water supply. Unsurprisingly, self-interested activists, who are vocal opponents of farming, jumped at the chance to support the Corps, regardless of the plain letter of the law and the fact that such actions will put millions of people south of Lake Okeechobee at risk of drought and water shortage issues.

We, and Congress, understood that reality in 2000. That is exactly why Congress enacted a backstop on CERP in the form of the Savings Clause. However, today the Corps has declared that the Savings Clause allows for different baselines than the year 2000. By creating new baselines, the Corps authorized itself to divert to CERP projects the water that was available to urban users and farmers to whatever is the flavor of the day. This is the very thing Congress directed the Corps not to do when it enacted the Savings Clause.

As a result of this dynamic, South Florida municipalities, farmers, and water managers find themselves forced to litigate in court to reinstate the agreement made 24 years ago. And they are 100% correct as the Savings Clause was never intended to be a tool that the Corps could manipulate at its discretion, making its own adjustments to the system when doing so is expedient. Instead, the Savings Clause protected the status quo in 2000 while restoration went forward.

That is not some water grab, as some critics have claimed.

The stakeholders expect the water they had in 2000, 24 years ago, not a drop more. When WRDA 2000 was approved, stakeholders believed their water would be protected and the Everglades restored. They believed in the simplicity of Congress’ words in the Savings Clause. But these beliefs were extinguished when the Corps declared that water users would no longer get the water they had in 2000, but a lesser amount.

An unfortunate outcome is that CERP was planned to grow a sustainable, fresh water supply for everyone — urban users, businesses, and the environment. Those goals appear long forgotten by some, as the Corps, Florida, and self-interested activists make their own water grab, adopting CERP projects and repurposing water that is rightfully allocated to Florida’s urban and agricultural users.

It is time for the Corps to honor the promises made to stakeholders in 2000, return their water, and undertake Everglades restoration in accordance with the law and the CERP agreement.

The 11th Circuit can ensure that happens.

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Daniel Webster represents Florida’s 11th Congressional District. Previously, he served in the Florida Senate and as the Speaker of the Florida House of Representatives from 1996 to 1998. In 2016, Audubon Florida named Webster as Champion of the Everglades.