SW Florida’s “water wars” are heating up and David Guest a litigator and managing attorney for Earth Justice has his hand on the thermostat.
The “thermostat” is a legal case entitled Catskills Chapter of Ducks Unlimited versus the EPA # 14-1823 and it is currently in the Federal 2nd Court of Appeals for review following a protracted battle in the District Court of New York. The name and location of the lawsuit may make it appear at first blush to have nothing to do with our water problems here in the Sunshine State, but if Guest and his organization ultimately prevail their efforts may be the most significant blow to date against the arcane administration of the South Florida Water Management District (SFWMD) – the agency considered by many to be the root cause of back pumping water into the Caloosahatchee River.
According to Guest and many local officials and activists intimately familiar with the issue, it is back pumping and a failure to send water south from the northern basin into the Everglades that create and exacerbate a great deal of South Florida’s water problems. Ills that include algae blooms, red tides, fish kills, coral reef degradation and oyster bed die-offs, among others
In order to understand the case, its complexity and why the fight against the SFWMD is crucial to the fight it is necessary to go back and learn a little history.
David Guest speaking to reporters after Tallahassee press conference
In the 1900’s the Everglades was a giant “river of grass” that filtered water from the north of Florida down into Florida Bay. Both the Bay and the Everglades itself were huge estuaries where much of our area’s flora and fauna originated and flourished. Many likened the flow of water through the Everglades to a “sheet” since it covered the top of the land nourishing all it came into contact with. It was natural and it worked. That is it worked fine until man decided to drain the everglades and monkey with Mother Nature.
In the 1900’s the Everglades Drainage District (EDD) was created and tasked with raising money to drain the basin to pave the way for the huge influx of people that were arriving into South Florida looking to farm, ranch, build businesses, raise homes and just generally develop the swampy land to suit human needs.
To meet its mandate the EDD built, in the words of Attorney Guest, “canals, canals and more canals.”
“The idea was to turn what was then the upper portion of the drainage area immediately south of Lake Okeechobee into muck farmlands. The EDD did this but what they didn’t know was that when the wetlands subsided, the water pooled into the Lake. To counter this high water and protect the surrounding areas, the EDD built a dyke in 1926,” said the knowledgeable lawyer.
Perhaps as a precursor to the woes that were to follow water management for the next hundred years, in 1928 that dyke burst during a cyclical hurricane and killed 2,800 people.
To address the situation, the Federal Government stepped in and empowered the Army Corp of Engineers with building the much larger and stronger Hoover Dyke.
One the water was contained, during the 1930’s and 40’s, the Sugar industry started beating the drum to get bigger canals and more of the water into their fields.
To aid both agriculture and ranching and take on this huge task, the EDD was replaced by the Central and Southern Florida Flood Control Project was born. The mantra became, in the words of Earth Justice to “let the Army Corp build it and have a special local agency manage the project to standards set by the Corps.”
In 1975, this model for managing South Florida’s water morphed into the SFWMD which to this day manages the water as special taxing district; a district that has grown ever more powerful as the state tax base has grown.
At one time, the District had one of the largest air fleets in the state and its own flag; there was just an incredible amount of money generated and a lot of it was spent to help develop what are now powerful sugar and ranching interests. They are the 2nd biggest employer and one of the biggest landowners in South Florida. They are an incredibly vast bureaucracy – looming like a fiefdom over the citizen serfs they ostensible serve
“This is where a lot of the problem began,” said Guest. “Because of the desire to create agricultural land by continuing to drain the Everglades, money began pouring out of their ears but the SFWMD really had no accountability to anyone. This is always a bad mix – too much money, a mandate to develop with no one to oversee the work to insure it is for everyone’s’ best interests not just a handful of special interests,’ he added.
David Guest has been at the center of enviormental activism since his days in the Siera Club, he is currently working a major Federal Case that may determine the future of back pumping by the SW FL. MGT. District from Lake Okachobee that has affected SW Floridians.
To this day, the SFWMD operates all the canals that control the water flows except the Saint Lucie and Caloosahatchee Rivers which they essential use as drainage to the Atlantic and Gulf for water accumulating in Lake O.
“Their role (Army Corps) is to keep people from dying in floods and they pay little attention to the fact that the lake is used by Big Sugar and ranchers as a gigantic water supply coming in and a huge drainage pond for water flowing out,” Guest told the Sun Bay.
Which bring us back to the current case – an effort by Earth Justice and the attorneys under Guest’s direction to stop back pumping water into our backyard.
“We went to court and initially won a related 2002 case against the EPA for failing to stop back pumping by the District, but while the case was on appeal to the Supreme Court the Bush administration adopted a federal administrative rule that reversed our victory by creating an ‘exemption’ to the rules we had fought so hard to establish,” Guest said.
“We had gone through God knows how many procedural things, like what Circuit Court had jurisdiction and the like but we won and in a very rater decision we also prevailed conclusively when the Supreme Court refused to hear the case. It’s called a denial of certiorari and it’s very unusual to have the Supreme Court deny a hearing to the solicitor general of the U.S. But then Bush’s special exception put us back to square one.”
“So, we filed the case using Ducks Unlimited as our plaintiff to get all the players back into court. The case is currently languishing in the 2nd Court of Appeals. We argued it there this past December and while it may take a long time we are anticipating a decision in the summer or fall of this year. It is likely we will win in the 2nd Circuit but we’re sure the EPA, who acts in a broad sense for the Corps and SFWMD’s interests in continuing back pumping, will appeal the case to the U.S. Supreme Court where the outcome, because of the current 4 to 4 split is more uncertain, elaborated Guest.
Observers of the Supreme Court note that it has only sided with the “greens” once or twice over the past 15 to 20 years. Traditionally the high court either affirms lower court rulings in favor of the government or overturns wins in favor of green policy. They note that since Justice Antonin Scalia is no longer on the bench, the court is often deadlocked on environmental issues.
“It is essential to most environmental causes that another centrist is confirmed,” said environmental researcher James Banowski.
Guest agrees and ads that if Earth Justice and his team of litigators do win, it will be a huge coup against the SFWMD.
“They’re like a giant feral cat on the loose; trying to get them to do the right thing for the public over special interests is like trying to control a waterbed rolling downhill, Guest spoke with a mixture of humor overlaying what is too him a very serious issue.
While Earth Justice may win the current lawsuit, there will be continue to be a battle for the water in South Florida and how it we use it will ultimately determine our future and quality of life here in the semi-tropics.
To those who have long fought this battle there can be only one solution – nature’s traditional flow of the water south through the Everglades must be restored.
“We have to send the water south,” former Lee County Commissioner Ray Judah told the Sun Bay.
Just last week, Judah published a guest commentary in both the Sun Bay and the News-Press calling the SFWMD to task for failing to recognize that restoring water flows south is the only “good science,” and that the District is failing the people of South Florida by failing to do what everyone knows is right.
In a sharply worded response this week, the District said Judah “inaccurately alleged flawed scientific modeling was used in Everglades restoration planning.”
The SFWMD went on to defend their practices saying, “the science of computer modeling used at the South Florida Water Management District to design, build and operate projects that are restoring the Everglades is among the most advanced in the world.”
Guest and Earth Justice say Judah’s right and the District is wrong.
“The ONLY solution to fixing the Everglades and ending the problems associated with back pumping is to restore the flow way south,” said Guest with absolute certainty.
If the solution is so plain to see and the science is so clear then why do Floridians continue to suffer under the districts misfeasance?
Guest has an answer. “When it comes to long-term water control and usage the Big Dogs always eat first. The Army Corps, Agricultural interests, the Cattlemen’s Association and Big Sugar will be first and the Everglades last.”
Solving the water woes of South Florida is going to require more corporate responsibility than what we’ve been seeing. There should be a principle of personal responsibility applied equally to our corporations. If the Fanjuls (one of the biggest families that control the land around Lake O) and U.S. Sugar would find a way to make money and serve the public good then they’d meet this sense of responsibility and it’s an indictment of their lack of concern for the rest of us that they don’t. Nobody would care if they got richer if they abandoned their greed,” Guest said adamantly.
While it appears there is no immediate end in sight, one solution would be for Big Sugar to sell 60 to 80 thousand acres of the 350-400,000 acres they control to the people. This land could then be used to store, treat and then sent the water south restoring ecological balance to South Florida. Funding to acquire the land has been available ever since voters funded land acquisition and restoration, but, as reported by the Sun Bay two weeks ago, the Scott administration continues to squander the funds on paying for things never intended by the people when they approved the funds for the so-called Legacy Florida bill.
One again political manipulations are superseding science and the will of the people.
Guest says eventually Sugar will probably eventually sell the land, but not before much more damage it done.
“Rather than look outward to the public good, these corporations tend to look inward in an internecine way because they believe if they work for any interests outside of their own they’re selling out. It’s a mindset of maximizing profit over good policy and its killing South Florida.”