Everglades Restoration Savings Clause Baseline Decision

Introduction

United States Sugar Corporation, Okeelanta Corporation, and Sugar Cane Growers Cooperative of Florida (“Plaintiffs”) appealed the district court’s summary‐judgment dismissal of their challenge to the United States Army Corps of Engineers’ (“Corps”) approval of the Everglades Agricultural Area Project (“EAA Project”). The Plaintiffs claimed that the Corps violated the Water Resources Development Act of 2000 (“WRDA 2000”) Savings Clause by using the wrong baseline for water‐supply comparisons, and that the Corps further erred under the National Environmental Policy Act (“NEPA”) by failing to analyze the environmental effects of a contemplated standalone operation of the Project’s stormwater treatment area (“STA”).

Factual and Procedural Background

The Plan and its Authorization: The Comprehensive Everglades Restoration Plan (“Plan”) was enacted in WRDA 2000. It amended decades‐old Corps flood‐control projects around Lake Okeechobee and directed the Corps to restore, preserve, and protect South Florida’s ecosystem while providing flood protection and water supply.
The EAA Project: Authorized in May 2020, it consists of (a) a 240,000 acre‐foot reservoir to increase storage and supply, and (b) a 6,500-acre engineered wetlands STA to remove phosphorus and improve water quality. These components were originally designed to operate only in tandem.
Regulation Schedules and Water-Supply Baselines: On the date WRDA 2000 became law, the Lake Okeechobee Regulation Schedule known as “WSE” capped the lake’s level at 18.53 feet. In 2008, due to structural concerns with the Herbert Hoover Dike, the Corps adopted “LORS 2008,” which lowered the maximum lake level to 17.25 feet—reducing available storage by roughly 500,000 acre-feet.
Procedural History: The Plaintiffs sued under the Administrative Procedure Act (“APA”) and NEPA in the Southern District of Florida. The district court granted summary judgment to the Corps on all counts. Plaintiffs appealed.

Summary of the Judgment

The Eleventh Circuit (Judge Anderson writing) affirmed in part and reversed in part. Key holdings:

Standing & Merits of Baseline Claim: Plaintiffs had Article III standing to challenge the Corps’ Savings Clause analysis. On the merits, the court held that WRDA 2000’s Savings Clause only requires the Corps to replace water “lost as a result of implementation of the Plan.” The 2008 drop in storage under LORS 2008 was a safety‐driven, non-Plan activity (a remedial action to protect the Dike) and not an “implementation of the Plan.” Thus comparing post-Project supply to the LORS 2008 baseline was reasonable.
Ripeness of Standalone-STA Savings Claim: Plaintiffs’ claim that the Corps should have conducted a separate Savings Clause analysis for a future standalone STA operation was not ripe. No final Corps decision has authorized the STA to operate alone.
NEPA Segmentation Claim: Plaintiffs’ NEPA challenge to the Corps’ Final EIS (which evaluated the combined reservoir/STA project) was ripe. On the merits, the court held that the STA standalone operation has independent utility. A supplemental EIS before any standalone operation does not improperly segment a “major Federal action.”

Analysis

Precedents Cited

Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257 (11th Cir. 2009) – APA review standard.
Florida Wildlife Federation v. U.S. Army Corps of Engineers, 859 F.3d 1306 (11th Cir. 2017) – Corps’ authority over Lake Okeechobee.
Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998) – ripeness in NEPA suits.
Preservation Endangered Areas of Cobb’s History, Inc. v. Corps, 87 F.3d 1242 (11th Cir. 1996) – NEPA anti-segmentation.
Bennett v. Spear, 520 U.S. 154 (1997) – finality requirement under the APA.

Legal Reasoning

Savings Clause Interpretation: The statute bars any “elimination or transfer” of existing water “until a new source . . . is available to replace the water to be lost as a result of implementation of the Plan.” The court held the critical phrase is “as a result of implementation of the Plan.” Because LORS 2008 was adopted to reduce lake levels for Dike safety—an activity rooted in the Corps’ pre-Plan flood-control authority—it did not trigger the Savings Clause replacement duty. The Corps thus reasonably used LORS 2008 as the comparator for its May 2020 analysis.

Ripeness & Finality: Plaintiffs’ § 601(h)(5)(A) challenge to a nonexistent standalone-STA authorization was unripe. Absent a final Corps decision approving that operation, no “legal consequences” have been determined and judicial intervention would be premature.

NEPA Segmentation: Under NEPA, a supplemental EIS may follow if new, independent environmental impacts arise. Because the STA can operate alone with independent utility (water quality treatment even without the reservoir), conducting a supplemental EIS before any standalone operation does not run afoul of anti-segmentation principles.

Potential Impact

Baseline Selection: WRDA 2000 baseline disputes will turn upon whether losses are causally tied to “Plan implementation” rather than intervening safety or maintenance actions.
Ripeness Limits: Corps permit applicants and objectors must await a final authorization before challenging tailored analyses (e.g. Savings or NEPA) for discrete components.
NEPA Practice: Agencies may defer standalone-component impact studies to supplemental EIS stages when the components have independent utility and no hidden cumulative effects exist.

Complex Concepts Simplified

Savings Clause: A WRDA 2000 provision that forbids any reduction of legal water supply until the Corps replaces any losses caused by its own implementation of the Restoration Plan.
WSE vs. LORS 2008: Two lake-management rules. WSE (2000) allowed higher lake levels. LORS 2008 lowered levels to protect a deteriorating flood control dike.
Ripeness & Finality: Under the APA, a claim is ripe only after a final agency decision—one that consummates the process and imposes legal rights or obligations.
NEPA Segmentation: The rule that an agency cannot divide a big project into many small ones to hide cumulative environmental impacts. Standalone impacts may be studied later if each component is a viable, independent action.

Conclusion

The Eleventh Circuit’s decision clarifies that WRDA 2000’s Savings Clause replacement duty extends to losses directly caused by Plan implementation, not to safety‐driven or maintenance changes under preexisting Corps authority. It also confirms that challenges to unapproved, future component operations are unripe, and that supplemental NEPA review for independently useful subprojects does not violate anti-segmentation rules. This framework will guide future water‐supply baselines disputes and streamlined impact assessments for multi-phase restoration efforts.