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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
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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
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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.
1
hydro periods are defined as the period of time when a wetland is covered by water
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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.
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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.
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
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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
and restrictions on the use of fertilizers and pesticides.
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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
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
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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
5
Friends of the Everglades is an environmentalist group founded by Marjory Stoneman Douglass in 1969.
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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.
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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
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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
Diaz-Silveira 21
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 S12 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.
Diaz-Silveira 22
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
Diaz-Silveira 23
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
Diaz-Silveira 24
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
Diaz-Silveira 25
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 projectand 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
Diaz-Silveira 26
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
Diaz-Silveira 27
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
Diaz-Silveira 28
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
Diaz-Silveira 29
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.
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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/fs20043095.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:
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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:
(http://southflorida.bizjournals.com/southflorida/stories/2009/12/07/story3.html)
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
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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#
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