Florida’s ‘landmark’ water law sure looks familiar

The South Florida Water Management District installed this turf scrubber in 2007. The scrubber can treat up to 15 million gallons of water per day, which removes about two metric tons of phosphorus a year, just a fraction of the amount required.
The South Florida Water Management District installed this turf scrubber in 2007. The scrubber can treat up to 15 million gallons of water per day, which removes about two metric tons of phosphorus a year, just a fraction of the amount required. Palm Beach Post

In 2000, amid a flurry of state and federal pledges to clean up the ailing Everglades, Florida passed a law hailed as a landmark and key to an ambitious $8 billion restoration plan: the Lake Okeechobee Protection Act.

The legislation ordered up a strategy to deal with decades of pollution pouring into the lake from farms, pastures and stormwater pipes around its rim. Lawmakers, reacting in part to public outcry over ghastly ulcers breaking out on fish in coastal rivers, set a January 2015 goal to sharply reduce damaging nutrients flowing into a vast lake that historically flowed into the River of Grass.

The deadline passed unmet. So this month, the Florida Legislature rammed through another law, hailed once again as a landmark by one of its authors — but disappointingly familiar to environmentalists and longtime Everglades restoration advocates.

With the backing of the same powerful business interests who previously stalled cleanup efforts, the latest overhaul of state water quality policy — quickly signed by Gov. Rick Scott — simply deletes the deadline and sets another, at least 20 years down the road. And the rules for enforcing the new plan remain uncertain, requiring another round of legislative approval.

“I’ve had an increasing sense of déjà vu,” said former Gov. Bob Graham, who was in his final year in the U.S. senate in 2003 when then-Gov. Jeb Bush pulled a similar move by signing a law that postponed a deadline for cleaning up pollution from phosphorus in the Everglades.

“I hope that there’s at least justification for what we’re doing,” Graham said. “But I never put down a bid to buy the Brooklyn Bridge, either.”

On the surface, the new law is not unlike the old one. It promises to reduce phosphorus in the lake but deploys what one sugar industry attorney described as a “marvel of compromise.” Critics say it fundamentally weakens water protections in the state.

The sweeping 134-page law morphed from a narrow effort to clean up natural springs in North and Central Florida to include broader and more complicated issues — predicted water shortages in Central Florida and pollution in Lake Okeechobee. While springs got much-needed protection, Central Florida, where the Floridan aquifer is nearly maxed out, got little more than instructions to keep looking for ways to conserve water. Polluters around the lake got a free pass, critics say.

“Rather than do what the law required, which was clean it up, they eliminated the whole program,” Earthjustice attorney David Guest said of a permitting program that helped successfully reduce pollution in sugarcane fields south of the lake.

Rep. Matt Caldwell, a Lee County Republican who co-sponsored the bill, flatly dismissed that view, insisting that critics’ understanding of the original Lake O act is wrong. Caldwell reads the law as simply a deadline to design a method, not achieve the goal. It’s a novel interpretation contradicted by numerous past reports, including a state audit on the program.

Even if his reading is wrong, Caldwell, who served on a South Florida Water Management District board drawing up the Lake O cleanup plan, said he still would not pass a law today that would include a deadline prompted by activist “grandstanding.”

“This allows [laws] to become a pawn in the ‘conservation through litigation’ strategy,” he said in an email Wednesday. “I reject that strategy and believe it primarily exists to enrich the litigators.”

But critics say it’s lawmakers who are the pawns in the water-policy overhaul. They say the state caved to thirsty big-business interests including the agriculture industry, power companies and farmers who have contributed $1.2 million in PAC money since March to Agriculture Secretary Adam Putnam, widely expected to make a run for governor in 2018. Caldwell’s PAC received just over $114,000 from the groups since 2014.

Rather than fix a dysfunctional system burdened by repetitive plans, they say the new law calls for more plans and marginalizes the local water management districts responsible for protecting water supplies.

“Nobody knows how this is going to play out, but this bill certainly isn’t futuristic in terms of protection and restoration of our water, which is in the title of the bill,” said Estus Whitfield, who served as Graham’s environmental adviser, as well as his Republican successor. “It’s just a continuation of past actions. Almost every deadline that has been set to clean up Lake Okeechobee and reduce pollution runoff has been extended. This is not the first time they have extended it, and it may not be the last.”

It was Graham who kicked off cleaning up the Everglades in 1983 when he launched the Save Our Everglades Program. Years of negotiating and intervention from the federal courts followed, but eventually a settlement was reached that set strict standards for pollution.

That lead to the region’s biggest industry — sugar farming — to dramatically cut pollution flowing from fields south of the lake.

Over the last 15 year, growers cut the phosphorus by roughly half. The state meanwhile spent more than $1 billion to build sprawling artificial marshes that scrub nutrients from the water flowing south into the Everglades. For all that progress, however, the water still doesn’t meet the levels required to restore the gin-clear water that once flowed through the marshes.

One big reason: Levels of phosphorus in the lake have remained sky-high, due largely to amounts flowing from the north, where little has been done to change habits.

In 1998, heavy rains and runoff sent 913 metric tons of the stuff into the lake, forcing releases of massive amounts of foul water into the St. Lucie River. Fish started getting sick, with lesions and ulcers breaking out on more than 30 different species. A public backlash set the stage for the Lake Okeechobee Protection Act in 2000.

The law gave the South Florida Water Management District three years to come up with a plan for meeting water-quality standards by January 2015. That plan eventually set annual inflow levels at 140 metric tons, based on a 2001 determination by the Department of Environmental Protection.

The state and district would cover $114 million of the cost with the feds footing $20.5 million. The cost to land owners for carrying out best management practices was expected to total about $175 million. In 2007, in the wake of more nasty fish-killing algae blooms following additional lake releases, the law was expanded to include the northern Everglades and St. Lucie and Caloosahatchee River estuaries, after Ken Pruitt, whose district included the St. Lucie River, became the powerful senate president.

But by 2010, little progress had been made. According to an audit that year, no one ever bothered to enforce “best management practices,” despite a requirement that those pollution-reduction programs be revised if they were not working. The audit found that in 2009, the Florida Department of Agriculture spent just $3 million overseeing the program.

“Even though the legislation was written and we were supposed to be doing it, we just didn’t do it,” said Paul Gray, Audubon Florida’s Lake Okeechobee science coordinator. “The [best management practices] were hardly implemented.”

The audit also pointed out the thornier problem: what to do with massive amounts of phosphorus buried in sediment, called legacy phosphorus, that get stirred up by heavy rain or hurricanes. Even if pollution flowing into the lake was cut, cleaning up what’s there could take years.

“That’s been part of the reason we keep writing the same laws and not getting as far as we want,” Gray said.

By 2011, any chance of the district catching up and replicating the success on the north side of the lake that it had achieved to the south were quickly vanishing. Scott began ordering district budgets cut and slashed staff numbers, a practice that continued last year despite a booming economy and continued growth in the state.

“Florida had the best water management system in the country and that centered around water management districts being the lead agency in the state in protecting water,” Whitfield said.

Just this year, following the fifth consecutive year of cuts, Scott thanked the district board for completing work to “clean water in the Everglades,” even as phosphorus in the lake climbed to 569 metric tons in 2013 and 609 tons in 2014.

Under the new law, polluters will again deploy best management practices. The law allows the department to issue fines or other penalties — although legislators must still approve rules for carrying out those fines next year. The plans are supposed to be managed by the Department of Agriculture but enforced by the Department of Environmental Protection, which under Scott has been dramatically cut.

The agriculture department is now spending seven times more on managing the plans, most recently receiving $22 million to oversee about 2.3 million acres, spokeswoman Jennifer Meale✔ said in an email.

The law also calls for the state to help pay for fixes — fences around cow pastures, for example — that raised concern about shifting even more of the cost of cleanup to taxpayers.

“We do want to clean up the pollution that exists. But I don’t think we ought to shift the cost over the long term to the public,” said Rep. Jose Javier Rodriguez, a Miami Democrat and one of only two lawmakers to vote against the law.

Caldwell said the law may not work fast enough for everyone, but that it tries to fix a plan that wasn’t working anyway. It also addresses the imbalance of pollution around the lake, where most now flows from the north, said Silvia Alderman, an attorney whose clients include Florida Crystals.

“People do tend to get nervous when they see things get eliminated,” she said. “This tries to level the playing the fields a bit.”

The new law also aligns lake plans with basin management plans across the state, she said.

“I think the BMAP is the next generation in terms of efforts to resolve the issues of the lake,” she said.

Another complaint is the bill does little to reign in water use and even extends the deadlines of some Consumptive Use Permits to 30 and 40 years. Also, the DEP is now allowed to instruct a water management district to find more water if it intends to deny a permit.

“If you really cut through the bullsh-t and look at what’s in the bill, there’s very little there,” said Robert Palmer, legislative chair of the Florida Springs Council. “It’s a huge missed opportunity.

“But they did pass a water bill and they can brag to the high heavens. And to some interest groups, they love it. The Chamber loves it. Farmers love it,’’ he said. “I think it’s all kind of a sham frankly. It’s not a serious attempt at legislating.”