September 01, 2013

A clean Everglades—Near the finish line or another watery mirage?

Yvonne Gsteiger

This year marks a milestone anniversary for the Everglades. Twenty-five years have passed since America’s two million acre iconic wetland became the subject of intense federal litigation and state legislative action over its restoration. The fact that action continued through this past Florida legislative session is not surprising given the breadth of groups with an interest in the health of the Everglades. While many think that Everglades restoration is one effort, it comprises two distinct but interrelated programs. The primary goal of one program focuses on water quality flowing into the Everglades, while the second program (called the Comprehensive Everglades Restoration Plan or “Restoration Plan”) focuses on ensuring adequate water quantity. This article will focus on the twenty-five-year journey toward improvements in Everglades water quality.

The start—litigation and the first legislative response

In 1988 then Acting United States Attorney Dexter Lehtinen filed the first of two key federal lawsuits against Florida and the South Florida Water Management District (SFWMD) for failure to enforce water quality standards for agricultural runoff water entering the Everglades National Park. In a movielike scene in 1991, then Governor Lawton Chiles appeared in front of District Judge Hoeveler with a sword in hand asking to whom he should give it to surrender. That act set the stage for the parties to settle the case, which the Florida district court approved and entered as a consent decree. United States v. S. Fla. Water Mgmt. Dist., 847 F. Supp. 1567 (S.D. Fla. 1992). In July 1993, the U.S. Department of the Interior, the U.S. Justice Department, the Florida Department of Environmental Protection (DEP), representatives of the sugar industry, and the SFWMD signed a “Statement of Principles” that, among other things, allocated relative costs to remove the nutrients from the water. It also outlined the parties’ commitment to a technical plan that involved building filter-marshes to clean the water.

In 1994, the Florida legislature enacted the Everglades Forever Act (EFA), which was modeled after the Statement of Principles and the federal consent decree. Fla. Stat. § 373.4592 (1994). The EFA contained a number of important provisions. First, and as a cornerstone of the law, was the requirement to build six wetland areas (called stormwater treatment areas) totaling 44,000 acres that were to act as natural water filters. The use of artificial wetlands to clean water was a relatively novel strategy. Second, the EFA required DEP to adopt a numeric phosphorus criterion for waters flowing into the Everglades and to require compliance with the standards by December 31, 2006. If no rule was adopted, the default phosphorus criterion was set at 10 parts per billion (ppb). Third, the EFA required farmers south of Lake Okeechobee to pay an “Agricultural Privilege Tax.” The Agricultural Privilege Tax started at $24.89/acre/year and escalated periodically unless farmers implemented best management practices and reduced phosphorus loads leaving the basin by 25 percent compared to a baseline period. In 2014, the tax rate was set to drop to $10/acre/year to cover ongoing operations and maintenance costs. Finally, the EFA capped the ad valorem tax contribution by property owners within the Okeechobee basin to 1/10th of a mill, which equates to $1 for every $1,000 of assessed land value.

Further constitutional and statutory amendments to the EFA

Dissatisfied with the EFA funding formula, some environmental groups launched three citizen petitions to amend the Florida Constitution. In 1996, over 68 percent of Florida voters approved the “Polluter Pays” amendment to the Florida Constitution, which states “those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution.” See Fla. Const. art. II, § 7. The Florida Supreme Court ultimately opined that the amendment was not self-executing and could only be implemented with the aid of legislative enactment. Advisory Opinion to the Governor–1996 Amendment 5 (Everglades), 706 So. 2d. 278 (Fla. 1997). Between 1997 and 2002, the legislature took no action to address or change the relative funding contributions.

Before 2003, it was apparent that the original mix of stormwater treatment areas could not meet phosphorus water quality standards (which in separate proceedings had been set to 10 ppb). This was corroborated in a report released by the SFWMD in March 2003 that outlined a two-phase Conceptual Plan of additional changes that were needed. The legislature in 2003 codified the Conceptual Plan into state law and also ratified its intent that the Polluter Pay amendment was met because the Agricultural Privilege Tax was extended through 2016. Fla. Stat. § 373.4592(6)(h)(2004). However, the legislature also deferred from 2006 to 2016 the date by which water quality standards had to be achieved.

The federal litigation continues

Despite operation of over 55,000 acres of stormwater treatment areas and implementation of the farmers’ best management practices, federal lawsuits over water quality in the Everglades continued. In September 2010, the U.S. Environmental Protection Agency (EPA) released an “Amended Determination,” detailing additional actions Florida had to take to meet the mandates of the Clean Water Act (CWA). EPA issued its Amended Determination only after a 2009 decision by the District Court for the Southern District of Florida, which rejected EPA’s initial “Determination.” The price tag of the Amended Determination was enormous, and, in a November 2010 letter, the SFWMD stated it was “unwilling to accept the undue and unreasonable financial burden that EPA’s $2 billion proposal places on South Florida’s taxpayers.”

Florida was given time to submit an alternative, and, in September 2011, Florida provided its plan and permits, which EPA determined met the requirements of the CWA. Among other things, Florida’s plan established a Water Quality Based Effluent Limit designed to achieve compliance with the Florida’s numeric phosphorus criterion, identified additional water quality projects to meet that effluent limit, and was within a reasonable budget. Florida’s new water quality plan will be built over twelve years and is estimated to cost $880 million. It requires another 6,500 acres of stormwater treatment areas and 19,000 acres of water storage areas to store water before the water is ultimately delivered to the stormwater treatment areas.

Who pays what share of the costs and the 2013 state legislation

Ever since passage of the original EFA, certain parties remained discontented about the relative fiscal contributions of other parties. The Everglades Foundation in March 2012 released a report that asserted that the sugar interests were not paying their fair share of cleanup costs. The Foundation concluded that the “[A]griculture Industry contributes 76% of the pollution in the Everglades, pays only 24% of the clean-up costs [sic].”

In rebuttal, the sugar interests issued a strongly worded technical evaluation asserting that because the Everglades Foundation report was loaded with unquantified uncertainties and caveats the conclusions did not “offer credible findings with respect to either the allocation of nutrient contributions, or the cost of nutrient controls for South Florida.” The arguments over cost allocations continued unabated.

In 2013, the state legislature revisited this and other issues in the EFA.

Representative Matt Caldwell, chair of the House State Affairs Committee, early in the session released a draft bill (later renumbered to HB 7065) codifying the new water quality plan and deleting reference to the 1993 Statement of Principles. Representative Caldwell’s version of the bill stated that the farmers’ best management practices were effective at reducing nutrients, and it extended the $25/acre/year Agricultural Privilege Tax another eight years. Last, it provided legislative intent that the best management practices costs as well as the Agricultural Privilege Tax payments met the Polluter Pays amendment. The farmers objected to increasing the tax rate, but they agreed to pay the tax for several more years. Florida Audubon, the Sierra Club, and others opposed, arguing that the farmers needed to pay a larger share of the new price tag.

The state Senate bill (SB 768), on the other hand, was simple. It codified the new water quality plan but did not extend the Agricultural Privilege Tax or address funding. The conservationists supported this bill and hoped that the cost allocation issues would be deferred to future years after more discussion and debate. But, the Senate alternative bill languished.

From the start of session, it was clear that a majority of Florida legislative members had no appetite for increasing the tax rate that the farmers paid and disagreed with the conservationists’ assessment that the best management practices were not effective enough in reducing nutrients. Despite hard-scrabble lobbying by the conservationists to defeat the House bill, in the two different committee hearings, only one member voted against the bill. Irrespective of the lopsided votes, behind the scenes, legislative leaders met with the conservationists and agreed to a few additional changes. When the bill went to a full vote in the House, it reflected the changes. The anticipated battle between farmers and the conservation groups had evaporated.

As passed by the Florida House unanimously on March 22, 2012, HB 7065 differed from the bill that left the committee in one significant way. It extends the Agricultural Privilege Tax through 2026, when it drops for two years to $20/acre/year. Then it becomes $15/acre/year until 2036 when it drops to $10/acre/year. It also provides the state’s commitment to contribute $32 million annually toward restoration costs. Instead of a lengthy battle that could have lasted the entire two months of session, after a mere three weeks, the Everglades issues had been resolved. Near the end of session, the Senate finally took up the House bill and passed it. Governor Scott signed HB 7065 into law (Fla. Laws ch. 2013-59) on May 29, 2013.

Thus, the third round of state legislative amendments in response to federal litigation has passed, and, for the first time in years, most parties seem satisfied with the revised dates and plans for ensuring that water quality standards will be met. Equally important, most of the major stakeholders have signed off on the relative funding allocation among farmer, water district, state, and ad valorem taxpayers. Hopefully these efforts are the last needed to cross the finish line so that the Everglades water meets the final water quality standards and all parties have contributed to its cleanup. We can only hope that litigation will also find a period of calm so that efforts can go where they should—towards restoring America’s “River of Grass.”

Yvonne Gsteiger

Yvonne Gsteiger is an environmental practitioner formerly with the South Florida Water Management District and more recently as the director of Grants and External Affairs for the Everglades Foundation.