Order Code RS21331
Updated August 23, 2005
CRS Report for Congress
Received through the CRS Web
Everglades Restoration:
Modified Water Deliveries Project
Pervaze A. Sheikh
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Summary
The Modified Water Deliveries Project (Mod Waters) is a controversial ecological
restoration project in south Florida designed to improve water delivery to Everglades
National Park. The implementation schedule of Mod Waters is of interest to Congress
partly because its completion is required before the implementation of portions of the
Comprehensive Everglades Restoration Plan. Concerns have been raised in hearings on
the Administration’s FY2006 budget request regarding the cost of implementing the
project and the U.S. Army Corps of Engineers’ authority to fund the project. Further,
due to concerns regarding phosphorus pollution in the Everglades, Congress enacted a
provision in the FY2004, FY2005, and FY2006 Interior Appropriations Acts that
conditions funding for Mod Waters on meeting state water quality standards. In
addition, the use of eminent domain to acquire land for a flood mitigation plan adjacent
to the park has been contentious. Several landowners who were unwilling to sell their
land obtained a ruling in federal court that prevented further land acquisitions in the
area. The Corps appealed this decision, and Congress authorized a plan, which included
land acquisition, in the Consolidated Appropriations Resolution for FY2003 (P.L. 108-
7). This report provides background on Mod Waters and discusses issues relating to its
current status, funding, and land acquisition needs. This report will be updated as
warranted.
Most Recent Developments
The Modified Waters Deliveries Project (Mod Waters) is being implemented by the
Department of the Interior and the U.S. Army Corps of Engineers in southern Florida.
(See Figure 1.) For FY2006, the Administration has requested a total of $60 million for
the project: $35 million through the Corps and $25 million through the Department of the
Interior.
The President’s request for the Everglades has drawn attention because of a proposed
change in the funding of Mod Waters. The request called for the Corps to broaden its role
by jointly funding the project with the Department of Interior, which previously had solely
funded the project. This raises the question of whether the Corps is authorized to receive
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appropriations to work on the project. The Administration’s position appears to be for
the Corps to pay for roughly two-thirds of the remaining $191 million required to
complete the project from FY2006-FY2009.1 The Interior Appropriations Act for
FY2006 provides $25 million for Mod Waters and conditions this funding to the
appropriation of matching funding for the Corps (P.L. 109-54). Corps funding for Mod
Waters for FY2006 is not yet determined. The House version of the Energy and Water
Appropriations (H.R. 2419) provides $35 million and the in H.Rept. 109-86 the
Committee states that the Corps has sufficient authority to receive and expend funds to
proceed with project construction. The Senate version of H.R. 2419 does not fund Mod
Waters, and according to S.Rept. 109-84, the Senate Appropriations Committee “does not
believe sufficient current authorization exists for the Corps to fund the work.”
A provision in the Interior Appropriations Act for FY2006 (P.L. 109-54) conditions
funding for Mod Waters on meeting state water quality standards. This provision cites
provisions in the FY2004 Interior Appropriations Act, which states that funds
appropriated for Mod Waters will be provided unless the Secretary of the Interior,
Secretary of the Army, Administrator of the EPA, and Attorney General indicate in a joint
report (to be filed annually until December 31, 2006) that water entering the A.R.M.
Loxahatchee National Wildlife Refuge and Everglades National Park does not meet state
water quality standards, and the House and Senate Committees on Appropriations respond
in writing disapproving the further expenditure of funds.2
Background
The Modified Water Deliveries Project was authorized by the Everglades National
Park Protection and Expansion Act of 1989 (P.L. 101-229) to improve water deliveries
to Everglades National Park and, to the extent possible, restore the natural hydrological
conditions within the park. The completion of Mod Waters is expected to be significant
step towards the implementation of the Comprehensive Everglades Restoration Plan
(CERP; Title VI, P.L. 106-541, the Water Resources Development Act of 2000 [WRDA
1 U.S. Dept. of the Interior, News Release, “FY2006 Interior Budget Emphasizes Commitments,
Cooperative Efforts, Performance and Fiscal Restraint,” Feb. 7, 2005. Accessed March 14, 2005
at [http://www.doi.gov/news/05_News_Releases/050207a].
2 For more information, see CRS Report RL32131, Phosphorus Mitigation in the Everglades, by
Pervaze Sheikh and Barbara Johnson.

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2000]).3 Mod Waters must be completed before appropriations can be made to construct
other restoration projects in the east Everglades (§601(b)(2)(D)(iv) of WRDA 2000).
Mod Waters is expected to consist of structural modifications and additions to the
Central and Southern Florida Project (C&SF Project) to improve the timing, distribution,
and quantity of water flow to the Northeast Shark River Slough.4 Increased water flow
to the Northeast Shark River Slough will increase water supplies in the park and is
expected to improve the natural habitat and hydrology of a portion of the Everglades
ecosystem.5
Figure 1. The 8.5 Square Mile Area in Southern Florida
Source: Adapted from the U.S. Army Corps of Engineers.
Mod Waters is expected to flood some residential and agricultural areas adjacent to
the park. Legislation authorizing this project instructs the Secretary of the Army to
determine if residential and agricultural areas within or adjacent to the 8.5 SMA will be
flooded from the hydrological changes of Mod Waters (§104(a)). If these areas are under
threat of flooding, the law mandates that a flood protection system must be developed for
3 For more information Florida Everglades restoration, see CRS Report RS20702, South Florida
Ecosystem Restoration and the Comprehensive Ecosystem Restoration Plan, by Nicole Carter.
4 Originally, the Corps was asked to alter water flow in the Everglades to control flooding, open
land for agriculture, and provide water supplies to urban areas. The cornerstone of this effort was
the Central and Southern Florida Project, which was authorized by the Flood Control Project Act
of 1948 (ch. 771, 62 Stat. 1171). This project resulted in nearly 1,000 miles of canals, 720 miles
of levees, and more than 200 water control structures (e.g., dikes, dams and pumping stations).
5 For more details, see U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades
National Park and South Dade Canals (C-111) Projects accessed on March 14, 2005, at
[http://www.saj.usace.army.mil/dp/MWDC111.htm].

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the area (§104(b)). To prevent flooding, several mitigation features have been developed.
One of these features is called Alternative 6D, which is a plan for protecting residents in
the 8.5 SMA from flood waters resulting from the project (discussed further below).
The importance of Mod Waters goes beyond its expected direct results. Legislation
authorizing CERP provides that the Mod Waters must be completed before several CERP
projects involving water flows on the east side of the park can receive appropriations
(§601(b)(2)(D)(iv) of WRDA 2000).
Issues Surrounding the Modified Water Deliveries Project
Three issues are being debated about the implementation of Mod Waters, including
its estimated funding level, the relevance of its completion to overall restoration efforts
in the Everglades, and the controversy surrounding land acquisition in the 8.5 SMA.
Funding. The question of whether the Corps is authorized to fund Mod Waters has
been an issue during the deliberation over the FY2006 Energy and Water Appropriations.
Arguments used to support the proposition that the Corps could be authorized to directly
fund Mod Waters cite §102(f) of the Everglades National Park Protection and Expansion
Act of 1989 (P.L. 101-229), which is the only section that authorizes funding and
authorizes such sums as may be necessary to carry out the provisions of the act. This
provision would include §104, which authorizes Mod Waters, though it primarily
authorizes activities carried out by the Corps. Arguments used to argue against Corps
authorization to fund Mod Waters could cite the long history of transfers from the NPS
to the Corps, which could be argued to establish a strong precedent for the lack of Corps
authority. Due to these conflicting arguments and the lack of clear legislative intent, the
authority for the Corps to directly fund Mod Waters might still remain debatable.
Rising project costs for Mod Waters led some critics to question its viability. The
original cost of completing Mod Waters was estimated at $81.3 million in 1990.6 The
current estimated cost for completing the project is $398 million.7 To date, approximately
$192 million has been appropriated for constructing and implementing Mod Waters, and
$206 million more is estimated to be needed to finish the project (i.e., FY2005-FY2009).8
Some supporters of Mod Waters argue that changes in the implementation plan, the rising
cost of land acquisition, and flood mitigation requirements have led to higher costs. This
was reflected, according to some, in the changes in the 1992 General Design
Memorandum, which were derived from improved modeling data and the project’s need
to be compatible with CERP.
6 U.S. Army Corps of Engineers, Modified Water Deliveries to Everglades National Park,
General Design Memorandum, Jacksonville District, June 1992.
7 U.S. Dept. of the Interior, FY2006 Budget Justification, National Park Service (Washington,
DC, 2005).
8 Of the total amount of funds already spent and estimated to complete Mod Waters,
approximately $200 million is for land acquisitions and approximately $198 million is for
construction, design, and monitoring, among other things.

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Project Delays. Mod Waters was originally estimated to be completed by 1997,
yet now some argue it is unclear as to when or even whether the project will be
completed. The FY2006 Administration request indicates that funding will be requested
through FY2009. Some argue that the delay in implementing Mod Waters jeopardizes
implementation of CERP projects, causes further degradation within Everglades National
Park, and will set a precedent for delays and deliberation regarding land acquisition
activities when CERP projects are being implemented.9 Others contend that the SFWMD
has already acquired 50% of the necessary land for implementing CERP and that delays
should not be an issue.
Land Acquisition in the 8.5 Square Mile Area. Implementation of Mod
Waters was dependent on acquiring land in the 8.5 SMA. Land acquisition in this area
was controversial because there were several unwilling sellers and the Corps had to
exercise eminent domain in some cases to acquire the necessary lands.
The 8.5 SMA is a region adjacent to Everglades National Park of approximately
5,600 acres with a residential community of approximately 1,500 people. Due to its low
topography (ranging from 5.0 to 8.5 feet NGVD10) and lack of drainage, parts of the 8.5
SMA frequently flood for several months during the rainy season (typically from May to
October). With the implementation of Mod Waters, the Corps expected that most of the
8.5 SMA would flood. The Corps developed a flood mitigation plan in 1992 (the 1992
General Design Report and EIS for Modified Water Deliveries to Everglades National
Park [1992 Plan]). The 1992 Plan was expected to provide flood mitigation for residents
in the 8.5 SMA and allow for the implementation of Mod Waters. However, the 1992
Plan was later deemed “unworkable” by the superintendent of Everglades National Park,
who claimed that it would not provide full flood protection for current and future
residents in the 8.5 SMA.11
The Corps began to devise a new plan for Mod Waters and the 8.5 SMA in 1999,
which considered several alternative plans, including the complete buyout of the 8.5
SMA. A new plan, referred to as Alternative 6D, was proposed by the Corps in 2000.
This plan includes a perimeter levee, seepage canal, pump station, and storm water
drainage for flood protection in the 8.5 SMA. Instead of a complete buyout of the 8.5
SMA, this plan proposed the acquisition of approximately 2,500 acres in the 8.5 SMA
(39% of the total area) and the acquisition of 77 residential tracts (24 tenant-occupied
tracts and 53 owner-occupied tracts) in the 8.5 SMA (13% of the total number of
“residential areas” in the 8.5 SMA).12
9 §601(b)(2)(D)(iv) of WRDA 2000 provides that Mod Waters must be completed before
appropriations can be made to construct other restoration projects in the east Everglades.
10 NGVD is the National Geodetic Vertical Datum, which is used to assess elevation relative to
sea level.
11 U.S. House Resources Subcommittee on National Parks and Lands, Issues Regarding
Everglades National Park and Surrounding Areas Impacted by Management of the Everglades,
oversight hearing, April 27, 1999, 106th Cong., 1st sess. (Washington, DC: GPO), Serial No. 106-
24.
12 A residential area contains either a fixed home, mobile home, or travel trailer.

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On February 23, 2001, some residents who are unwilling to sell their land in the 8.5
SMA filed a case against the Corps with two complaints. They asserted that the Corps
does not have the authority to implement a plan that does not protect the entire 8.5 SMA
from flooding, and that the Corps does not have the authority to exercise eminent domain
or spend money to acquire their land through condemnation.13 On July 5, 2002, a district
judge adopted an earlier ruling by a federal magistrate that restricted the Corps from
veering from its original mandate to protect the entire community from flooding, and
prevented the Corps from acquiring land in the 8.5 SMA. The Corps appealed this
decision to the U.S. Court of Appeals for the Eleventh Circuit on September 4, 2002.
To help implement Mod Waters, Congress included a provision in the Consolidated
Appropriations Resolution for FY2003 (Division F, Title I, §157 of P.L. 108-7) that
authorizes the Corps to implement a flood protection plan (Alternative 6D) for the “8.5
Square Mile Area”(8.5 SMA) as part of Mod Waters. Three conditions are specified in
the section authorizing implementation of Alternative 6D: (1) the Corps may acquire
residential property needed to carry out Alternative 6D if the owners are first offered
comparable property in the 8.5 SMA that will be provided with flood protection; (2) the
Corps is authorized to acquire land from willing sellers in the flood-protected portion of
the 8.5 SMA to carry out the first condition; and (3) the Corps and the nonfederal sponsor
may carry out these provisions with funds provided under the Everglades National Park
Protection and Expansion Act of 1989 (P.L. 101-229; 16 U.S.C. §410r-8) and funds
provided by the DOI for land acquisition for restoring the Everglades.
Some critics of land acquisition in the 8.5 SMA base their arguments on the same
principles used to criticize the acquisition of the entire 8.5 SMA — that the federal
government should not exercise eminent domain to remove unwilling sellers and that the
federal government is obligated to protect all residential areas from floods under P.L. 101-
229. Some critics also argue that there are several unwilling sellers in the area and that
if condemnations proceed, delays due to litigation will be inevitable and will eventually
harm the ecosystem.14 The Corps asserts that there are several willing sellers in the 8.5
SMA.15 Approximately 90% of the landowners in the 8.5 SMA have signed contracts to
sell their land to the federal government and by June 2004, 13 tracts of land have been
acquired by eminent domain (5 were residential tracts and 8 were unoccupied tracts).
Some supporters of acquiring land in the 8.5 SMA and implementing Alternative 6D
argue that if this plan is not implemented, delays may be even longer in implementing
Mod Waters and restoring the regional ecosystem, to the detriment of Everglades National
Park.
13 Garcia vs. United States, No. 01-801-CIV-Moore, slip op. (D.S.D. FL. July 5, 2002).
14 Michael Grunwald, “Dispute Stalls Everglades Project,” Washington Post, July 17, 2002: A21.
15 The Corps asserts its power for condemnation is authorized under 40 U.S.C. §257 and 33
U.S.C. §591. This authority is extended to practices of flood control under 33 U.S.C. §701
according to the Corps. Personal communication with Barry Vorse, U.S. Army Corps of
Engineers, on Sept. 7, 2002.

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